Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NJ23994, John C. Lawson, II, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I. INTRODUCTION
The minor, Juan E., appeals from the February 4, 2009 order declaring him a ward of the court (Welf. & Inst. Code, § 602) and placing him home on probation in the care of foster parents. On February 2, 2009, the juvenile court sustained the allegations of a delinquency petition filed November 17, 2008, charging the minor with: criminal threats (Pen. Code, § 422); dissuading a witness from reporting a crime (Pen. Code 136.1, subd. (b)(1)); vandalism (Pen. Code, § 594, subd. (a)); and possession of an aerosol paint container with intent to deface. (Pen. Code, § 594.1, subd. (e)(1).) The minor argues: there was insufficient evidence to support the sustained allegation that he made a criminal threat; counsel was ineffective; and, the juvenile court failed to state on the record whether counts 1 and 2 were felonies or misdemeanors. We remand the matter to the juvenile court to allow it to state on the record whether count 1 was a felony or misdemeanor and otherwise affirm the wardship order.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 2:40 a.m. on November 14, 2008, Jeanette Lemieux was sitting on the stairs of her apartment building. Ms. Lemieux saw the minor running toward the wall of a nearby building. The minor made eye contact with Ms. Lemieux. Ms. Lemieux knew the minor because he was a neighbor. The minor used a can of spray paint to write graffiti on a nearby building. Ms. Lemieux said, “Are you seriously tagging on the wall right in front of me?” The minor responded, “Yeah, I’m fucking serious do you have a problem with that?” The minor then walked over to where Ms. Lemieux was seated. The minor stood a foot away from Ms. Lemieux. Ms. Lemieux attempted to explain to the minor why it was inappropriate for a neighbor to deface property. The minor told Ms. Lemieux that this was his and his gang’s neighborhood. Ms. Lemieux told the minor that the neighborhood did not belong to the gang. The minor told Ms. Lemieux that he knew her by face and he and the gang could be her best friend or her worst enemy. Ms. Lemieux felt threatened and afraid. Ms. Lemieux was afraid the minor would hurt her or damage the building or its residents. When asked what kinds of things the minor could do, Ms. Lemieux testified, “I don’t know, hit me, whatever, just violence, you know.” Ms. Lemieux told the minor that she knew his face too and he should step away. The minor responded, “No.”
The minor told Ms. Lemieux, “If you look the other way [the gang] will do you favors.” The minor repeatedly ordered Ms. Lemieux to shake his hand. Ms. Lemieux understood that the minor meant the handshake would require her to look away when he “tags” a building or threatens neighbors. Ms. Lemieux refused to shake the minor’s hand. Ms. Lemieux felt afraid and threatened. Shortly thereafter, a police officer drove past and slowed down. The minor threw his paint can in the bushes. Ms. Lemieux told the minor to leave. The minor refused. The minor told Ms. Lemieux, “Don’t do this, don’t do this.” Ms. Lemieux understood this to mean that she should not “get the police officer over here.” The officer stopped his car. Ms. Lemieux got up and walked over to the police officer. The minor then ran away. Ms. Lemieux told Officer Matthew Heady that the minor told her, “You need to shake my hand unless you want your property to be next.” Ms. Lemieux said the minor repeated, “If you don’t want anything to happen to you you need to shake my hand.” Officer Heady located a gray spray paint can in the bushes. When Officer Heady came into contact with the minor later that morning, he had what appeared to be gray spray paint on his hands. Later that morning, Ms. Lemieux identified the minor in a field identification showup.
III. DISCUSSION
A. Sufficiency of the Evidence
1. Criminal Threat
The minor argues that there is insufficient evidence to support the juvenile court’s true finding regarding the section 422criminal threats allegation. The minor admits that he made various statements to Ms. Lemieux but argues that “considered individually, or as a whole and in the context of the surrounding circumstances, [it] fails to rise to the level of ‘criminal threat.’” In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432; see also People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
Penal Code section 422 defines criminal threats as follows: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
In People v. Toledo (2001) 26 Cal.4th 221, 227-228, the California Supreme Court divided the criminal threat elements into five categories: “(1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, ’ (2) that the defendant made the threat ‘with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out, ’ (3) that the threat-which may be ‘made verbally, in writing, or by means of an electronic communication device’-was ‘on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, ’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety, ’ and (5) that the threatened person’s fear was ‘reasonabl[e] under the circumstances.’” (See also In re George T. (2004) 33 Cal.4th 620, 630; People v. Bolin, supra, 18 Cal.4th at pp. 337-340 & fn. 13; People v. Fierro (2010) 180 Cal.App.4th 1342, 1347-1348; In re Ryan D. (2002) 100 Cal.App.4th 854, 859-860; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136.)
In this case, the incident occurred at approximately 3:00 a.m. After Ms. Lemieux observed the minor spray painting graffiti and questioned if he was serious, the minor walked directly up to Ms. Lemieux after telling her that he was “fucking serious” and asking her, “Do you have a problem with that?” While standing approximately one foot away from Ms. Lemieux, the minor told her this was his neighborhood and that of his gang. When Ms. Lemieux disagreed, the minor told her that he knew her by her face. The minor added that they could be best friends or he could be her worst enemy. Ms. Lemieux felt threatened and afraid that the minor would hurt her or other residents of the building. Ms. Lemieux told the minor to “back off.” The minor responded, “No.” The minor extended his hand and ordered Ms. Lemieux to shake it. Ms. Lemieux refused to do so. Ms. Lemieux believed that a handshake would mean that she would look the other way when he “tags the building and threatens the neighbors or whatever.” The minor told Ms. Lemieux, “If you look the other way [the gang] will do you favors.” The minor said, “You need to shake my hand unless you want your property to be next.” When Ms. Lemieux again refused to shake the minor’s hand, he said, “If you don’t want anything to happen to you, you need to shake my hand.” When the police officer drove past, the minor did not move. However, when Ms. Lemieux walked toward the patrol car, the minor threw the paint can and said, “Don’t do this, don’t do this.” Ms. Lemieux was afraid because she knew the minor was tagging buildings in the neighborhood and harassing neighbors. Ms. Lemieux testified that there was no reason not to believe the minor’s threats. Ms. Lemieux was still afraid at the time of the adjudication hearing and continued to believe his threats.
These threats were made willfully and implied that any failure by Ms. Lemieux would result in harm to her either at that time or in the future. The minor was only a foot away from Ms. Lemieux, made eye contact with her, and spoke with the authority of the local gang representative. The minor insisted Ms. Lemieux shake his hand or suffer the consequences. The minor claimed the territory for his gang, explaining Ms. Lemieux could be his worst enemy. Moreover, the fact that it was 3:00 a.m. and no other witnesses were present, made Ms. Lemieux particularly vulnerable. Ms. Lemieux took the threats seriously and was frightened of the minor’s and his gang’s power to hurt not only herself but also other residents. In addition, the threats were so substantial that Ms. Lemieux was still afraid some three months later. Ms. Lemieux’s fear was sustained and reasonable under the circumstances. The threats in this case when viewed in the context of the surrounding circumstances, were unequivocal, unconditional, immediate, specific, and conveyed a grave and immediate prospect of execution. (People v. Bolin, supra, 18 Cal.4th at p. 340; see also In re Ernesto H. (2004) 125 Cal.App.4th 298, 312-313; People v. Butler (2000) 85 Cal.App.4th 745, 755; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1342.)
2. Dissuading a witness
The minor also argues there was insufficient evidence to support the juvenile court’s true finding regarding his section 136.1, subdivision (b)(1) dissuading a witness allegation. The minor concedes that “[I]t is possible that the statements made to [Ms.] Lemieux... could be interpreted as attempts to dissuade a witness.” The minor argues that because the juvenile court was silent regarding its true finding, it is impossible to know whether it made that finding based upon his statement, “Don’t do it. Don’t do it.” when the police car approached. The minor concludes that these statements were “too spur-of-the-moment, too simplistic, and too vague to rise to the level of ‘dissuading a witness.’” We disagree.
Section 136.1 states: “(b) Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished...: [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer... or to any judge.”
Ms. Lemieux understood the words to mean that if she involved the officer the minor’s prior threats would be carried out. As set forth above, the minor had just minutes earlier told Ms. Lemieux that he and other gang members could be her worst enemy. Immediately prior to the officer’s arrival, the minor had attempted to force Ms. Lemieux to shake his hand or suffer the consequences. Ms. Lemieux was familiar with the minor and his prior harassment of the neighbors. Under the totality of the circumstances there was substantial evidence upon which the juvenile court could base its true finding.
B. Effectiveness of Counsel
The minor argues that he was denied effective assistance of counsel based upon his attorney’s introduction of damaging evidence and his failure to object to the prosecutor’s improper argument. Our standard of review in determining whether defendant was denied effective assistance of counsel was specified by the Supreme Court as follows: ‘“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.)’ (People v. Williams (1997) 16 Cal.4th 153, 215.) [¶]... ‘... “In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.” (People v. Ray (1996) 13 Cal.4th 313, 349.)’ (People v. Williams, supra, 16 Cal.4th at p. 215.)” (People v. Majors (1998) 18 Cal.4th 385, 403.) The Supreme Court has also held: “Moreover, ‘[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 206, quoting People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Anderson (2001) 25 Cal.4th 543, 569.) Counsel need not pursue futile or meritless objections or argument. (People v. Prieto (2003) 30 Cal.4th 226, 261; People v. Ochoa (1998) 19 Cal.4th 353, 432; People v. Lewis (1990) 50 Cal.3d 262, 289.) Our Supreme Court has determined that in ruling on the effectiveness of counsel, the reviewing court must also consider the record of what counsel did do at trial. (In re Ross (1995) 10 Cal.4th 184, 209; People v. Miranda (1987) 44 Cal.3d 57, 121.)
The minor first cites to defense counsel’s questioning of Ms. Lemieux on cross-examination. Defense counsel inquired whether the minor had said, “If you don’t want anything to happen to you, you need to shake my hand.” Ms. Lemieux responded, “Yes.” Prior to that testimony, Ms. Lemieux had indicated only that the minor had repeatedly ordered her to shake his hand. The minor further argues that defense counsel failed to object to the prosecutor’s argument that the minor told Ms. Lemieux, “I don’t want to hurt you.” The minor points out that neither Ms. Lemieux nor Officer Heady testified that the minor had said anything about “hurting” Ms. Lemieux. The minor concludes that “[W]ithout these two more damaging statements, ” the juvenile court had only the minor’s statement to Ms. Lemieux that he and his gang could be her “best friend or worst enemy” in determining whether a criminal threat had been made. We disagree.
Contrary to the minor’s argument, Ms. Lemieux testified that the minor had warned her, “I know you by your face.” Ms. Lemieux specifically testified, “I was afraid of him hurting me or damaging the building or hurting other people who live in the - - other residents of the building, you know.” Ms. Lemieux further stated she feared the minor would “... hit me, whatever, just violence, you know.”
The minor also repeatedly insisted Ms. Lemieux shake his hand and look the other way to avoid the gang being “her worst enemy.” Officer Heady testified that Ms. Lemieux said, “[S]he was afraid [the minor] would hurt her.” Officer Heady said Ms. Lemieux was afraid of “retaliation on her and her property.” These statements and actions were substantial evidence of the criminal threat even without the statements to which the minor objects. In addition, because no misconduct occurred, counsel had no reason to object. The prosecutor argued: “[Ms. Lemieux] said she refused to shake [the minor’s] hand and he told her if you don’t want anything to happen to you you have to shake my hand. [¶] She said she was very fearful of her safety. She said she thought he was going to hurt her. He said he knew her face. And basically essentially that [the gang] could come after her. And he also then told her if you look the other way [the gang] will do you favors. [¶] She said she felt very scared that she would be hurt. She believed the threats. And so what we have - - and she said to this day she’s still afraid. She told the police officers that night that she was afraid he would hurt her and she was also fearful of retaliation from him and the... gang.” The California Supreme Court has held: “‘“‘[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]...’... ‘[He]... “... is not limited to ‘Chesterfieldian politeness’” [citation], and he may “use appropriate epithets....”’” (People v. Wharton [(1991)] 53 Cal.3d [522] 567-568 [].)’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819, quoting People v. Williams, supra, 16 Cal.4th at p. 221; People v. Brown (2003) 31 Cal.4th 518, 554.) Here, the inferences drawn from the prosecutor’s argument that Ms. Lemieux feared she would be hurt were supported by the evidence presented. In addition, Ms. Lemieux specifically testified that she was afraid the minor would hurt her. Counsel need not pursue futile or meritless objections or argument. (People v. Prieto, supra, 30 Cal.4th at p. 261; People v. Ochoa, supra, 19 Cal.4th at p. 432.) Because the prosecutor’s argument was a proper comment on the evidence, no objection was necessary.
As noted earlier, we must also look to what counsel did in determining his or her effectiveness. Defense counsel argued that the prosecution had not proven the elements of a criminal threat: “First element of criminal threat is a threat crime - - pardon me, to threaten a crime of death or great bodily injury. I don’t think we have anything close to that here, not even under circumstantial evidence.” Defense counsel then cited several cases and distinguished them for the court, noting that there was no direct threat of death of bodily injury in this case. This argument suggested the elements of the criminal threat were not demonstrated. Moreover, even if counsel’s question and failure to object constituted less than effective assistance of counsel, no prejudice resulted. Even absent the introduction of the testimony on cross-examination and the prosecutor’s argument, substantial evidence supported the juvenile court’s true findings at the adjudication hearing.
C. Designation of Counts 1 and 2 as Felonies
The minor argues that the juvenile court failed to declare on the record whether the criminal threat and dissuading a witness charges should be designated as felonies or misdemeanors. Section 702 provides in pertinent part: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” California Rules of Court, rule 5.780, provides in relevant part: “(e) If the court determines by... proof beyond a reasonable doubt in a section 602 matter, that the allegations of the petition are true, the court must make findings on each of the following... [¶]...[¶] (5) In a section 602 matter, the degree of the offense and whether it would be a misdemeanor or a felony had the offense been committed by an adult. If any offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration, and must state its determination as to whether the offense is a misdemeanor or felony....”
As noted previously, the minor was charged with criminal threat and dissuading a witness. Both counts were designated as felonies in the petition. The minor argues that the juvenile court did not make a designation at either the adjudication or disposition hearing. However, at the disposition hearing, the prosecutor requested that the juvenile court advise the minor of the fact that “he has a strike on his record.” Defense counsel stated: “Your Honor, we don’t object to a strike package.” The juvenile court then stated: “All right. It looks like it is, indeed, a [Welfare and Institutions Code section] 707(b) offense. That being the case, you should also be aware, [the minor], that the court found you true of one count of intimidating or dissuading a witness. That means now that when you walk out these doors, you now will have as an adult a strike. [¶] What does that mean? If you get a strike - - you get two or more strikes, you’ll be looking at 25 years to life as an adult. That means that this particular conviction or finding true at adjudication will be used against you and on your record for the rest of your natural born life. It will not go away. You now have one strike. [¶] Do you understand?” The minor responded, “Yes, sir.” The juvenile court continued: “If you pick up another serious or violent felony, that will line you up to be looking at 25 years to life.” The minute order prepared for the disposition hearing indicates at line 20: “Offense declared to be a felony (count(s) 1, 2) misdemeanor (count(s) 3, 4)” However, “‘[A] discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error.’” (People v. Williams (1980) 103 Cal.App.3d 507, 517, quoting the Los Angeles Superior Court Criminal Trial Judge’s Bench Book at page 452.)
In In re Manzy W. (1997) 14 Cal.4th 1199, 1204, the California Supreme Court held: “What is not at issue is what the juvenile court must do. The language of the provision [section 702] is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. (Webster’s New Internat. Dict. (3d ed. 1961) at p. 586 [defining ‘declare’ as ‘to make known publicly, formally, or explicitly’ ‘to state emphatically’]...)” (See also In re Eddie M. (2003) 31 Cal.4th 480, 487; In re Ramon M. (2009) 178 Cal.App.4th 665, 675; In re Jorge Q. (1997) 54 Cal.App.4th 223, 238.) The Supreme Court further held in In re Manzy W.: “[W]e disagree with the minor that remand is, in effect, ‘automatic’ whenever the juvenile court fails to make a formal declaration under Welfare and Institutions Code section 702. The holdings in [In re] Kenneth H. [(1983)] 33 Cal.3d 616, and [In re] Ricky H. [(1981)] 30 Cal.3d 176, do not so require. Thus, speaking generally, the record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error.” (In re Manzy W., supra, 14 Cal.4th at p. 1209.) In In re Jacob M. (1989) 210 Cal.App.3d 1178, 1180, our colleagues in the Court of Appeal for the Fourth Appellate District held: “[T]here is no statutory requirement the court express its reasons for the choice, only that the choice be ‘found’ and be ‘noted in the minutes of the court....’ ([Former] Cal. Rules of Court, rule 1355(f).) ‘The Legislature has the means by which to require such a statement when it elects to do so.’ (In re John H. [(1978)] 21 Cal 3d 18, 25.) ”
In this case, the juvenile court clearly indicated it was treating the dissuading witness charge as a felony when it advised the minor that the charge constituted a “strike.” The juvenile court also stated that future serious or violent felonies could put him in line to one day receive a 25-year-to-life sentence. While it is clear that the juvenile court and all counsel considered count 2 to be a felony, the juvenile court did not make a specific statement that the criminal threat in count 1 was also to be designated as a felony. The juvenile court’s comments do not satisfy the requirements of Welfare and Institutions Code section 702 as to count 1. (In re Manzy W, supra, 14 Cal.4th at p. 1208.) As a result, we must remand the matter to allow the juvenile court to declare on the record whether count 1 is also a felony or is to be treated as a misdemeanor.
The matter is remanded to the juvenile court to allow it to declare on the record whether the criminal threat in count 1 was a misdemeanor or felony. The wardship order is affirmed in all other respects.
We concur: ARMSTRONG, Acting P.J. KRIEGLER, J.