Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Ct. No. J216655, Joan M. Borba, Judge.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
J.W. (the minor) contends on appeal: (1) that there was insufficient evidence to support his felony conviction for maliciously informing of a false bomb (Pen. Code, § 148.1, subd. (c)); (2) that the court abused its discretion by refusing to reduce the felony to a misdemeanor; and (3) that the court also abused its discretion in refusing to grant him informal probation. We will affirm.
FACTS AND PROCEDURAL HISTORY
On Thursday, April 26, 2007, 10 days after the massacre at Virginia Tech, J.W. wrote a note on a piece of toilet tissue and put it in a textbook used by students in Mr. Steuben’s first period science class at Upland High School. The note, which had a drawing of a bomb on it, said, “Everybody dies on 4/30/07. UHS will blow up.” The student who discovered the note showed it to some of his classmates before turning it in to Mr. Steuben. Mr. Steuben discussed the note with the whole class. During the discussion, J.W. did not confess.
The Virginia Tech incident, referred to repeatedly by the prosecution in the course of the trial, took place on April 16, 2007, and was reported as one of the worst school shootings in United States history. (http://www.nytimes.com/2007/04/16/us/ 16cnd-shooting.html [as of Nov. 21, 2008].)
A student in the first period science class who heard the discussion was scared by what the note said. She told the teacher of her next class, Mr. “Pish” out loud, that a bomb-threat note had been found in her first period class. This class also discussed the matter and Mr. Piscioneri called the school’s office. School administrators informed Officer Brian Garcia (Officer Garcia), the school’s resource officer, and the Upland Police Department. Another student who had heard about the note during the discussion in Mr. Picscioneri’s class was afraid because he did not want to die and did not want anybody else to get hurt. On Sunday, April 29, 2007, school authorities notified students’ families about the note and the Ontario bomb squad searched the campus with dogs. No bomb was found.
Mr. Pish is short for Mr. Piscioneri.
There are approximately 3,700 students enrolled at Upland High School. About 45 percent of the students did not attend school on April 30, 2007. The normal absence rate is about 10 percent. Students who did not go to school on April 30 gave various reasons for their decisions to stay home. One student did not go because his sister talked their father into keeping him home; a second student did not go because her mother did not want her to; and a third did not go because he did not want to die.
On May 2, 2007, some time after an anonymous source had identified J.W. as a suspect, Officer Garcia spoke to him. The minor told the officer that he wrote the note not as a threat but to warn others of his premonition that the school was going to blow up. J.W. also said he had told the student who found the note to throw it away. On May 3, J.W.’s mother told Garcia that she had noticed that her son was not eating normally, and was acting strange and crying, during the previous weekend.
The source may have identified J.W. from a handwriting sample taken from students in Mr. Steuben’s first period class, although the fact that this had been done was only alluded to, not brought out clearly, during the hearing.
On August 17, 2007, the District Attorney of San Bernardino County filed a Welfare and Institutions Code section 602 petition charging J.W. with two felonies: maliciously informing of a false bomb (Pen. Code, § 148.1, subd. (c), count 1) and making criminal threats (Pen. Code, § 422, count 2).
On November 6, 2007, the court found count 1 true. A predisposition probation report filed November 30, 2007, documented J.W.’s April 2006 arrest and conviction for fighting in public. (Pen. Code, § 415, subd. (1).) J.W. told the probation officer interviewing him on November 6, that he did not believe he should receive any consequences for his actions because “most people considered it a joke.” The report concluded that “the minor . . . realizes the seriousness of his actions” but recommended that he be declared a ward of the court and placed on formal probation with terms and conditions. At the dispositional hearing on December 5, 2007, the court refused defense motions to reduce the Penal Code section 148.1 offense to a misdemeanor and to place J.W. on informal rather than formal probation. The court declared the minor a ward and placed him on formal probation in the custody of his mother.
This appeal followed.
DISCUSSION
J.W. argues first that the evidence was insufficient to support the juvenile court’s finding that he wrote the bomb-threat note maliciously. We disagree.
Standard of Review:
“When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . .” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) If the evidence reasonably justifies the trier of fact’s findings, the opinion of the reviewing court that it might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley).) We are bound to give due deference to the trier of fact and may not substitute our evaluation of the credibility of witnesses for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The standard is the same whether the case involves direct or circumstantial evidence. (People v. Vasco (2005) 131 Cal.App.4th 137, 160-161.) Given this court’s limited role on appeal and because we must draw all inferences in favor of the judgment, a defendant bears an “‘enormous burden’” in claiming that the evidence is insufficient to support a conviction. (Id. at p. 161.)
“Any person who maliciously informs any other person that a bomb or other explosive has been or will be placed or secreted in any public or private place, knowing that the information is false, is guilty of a crime punishable by imprisonment in the state prison, or imprisonment in the county jail not to exceed one year.” (Pen. Code, § 148.1, subd. (c).) As used in the Penal Code, the word “‘maliciously’” imports “a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” (Pen. Code, § 7, subd. 4.) Conviction under a statute proscribing an action done “maliciously” does not require proof of a specific intent. (People v. Licas (2007) 41 Cal.4th 362, 366; People v. Adkins (2001) 25 Cal.4th 76, 85 (Adkins).) A general intent crime “‘entails only an intent to do the act that causes the harm.’” (Adkins, at p. 86.)
Here, there was ample evidence that J.W. intended to do the act of writing a false bomb-threat note and that his act caused significant harm to fellow students, to their families, and to school administrators. J.W. admitted to Officer Garcia that he had written the note and placed it in the book, and that he knew it had been found. The note was discussed openly in Mr. Steuben’s first period class, and while some students apparently considered it a joke, others were made afraid. In the end, school officials had to warn about 3,700 families and the school had to be searched by a bomb squad. Approximately 45 percent of the students enrolled at the school—more than 1600 people—did not attend school on the day identified in J.W.’s note. Some did not come because family members dissuaded them; others did not come because they were afraid.
There was also evidence that J.W. committed the act with an intent to vex, annoy, or injure other people. Firstly, his explanations of intent were inherently contradictory: he told the officer that he wrote it to warn his classmates but also that he told the student who found the note to throw it away. An intent to warn others of impending doom is clearly incompatible with a simultaneous effort to suppress the “warning.” Secondly, J.W. did not confess to having written the note either at the time it was found or in the days that followed, despite the fact that the false threat was causing extensive harm. He was apparently upset over the weekend of April 27-29, 2006, but chose to remain silent. He confessed only after the net of suspicion closed around him. This long silence in the face of spreading distress to his classmates and their families, not to mention school officials, indicates an ongoing wish to vex or annoy, not a wish to warn and protect.
In sum, we cannot say that the evidence does not reasonably justify the finding of the trier of fact that J.W. maliciously informed other persons of a false bomb threat. He makes much of his statement to Officer Garcia that he wrote the note to warn his classmates, implying that his intent was beneficent. He also suggests that the fact that he was upset over the weekend could indicate that he was himself afraid that a bomb was going to blow up the school. But the possibility that the evidence might reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. (Stanley, supra, 10 Cal.4th at p. 793.)
Abuse of Discretion Claims:
J.W.’s second and third arguments, respectively, are that the trial court abused its discretion when it denied defense motions to reduce his offense to a misdemeanor and to grant him informal rather than formal probation.
A trial court has broad discretion in imposing a sentence and its decisions are generally reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 840-841.) This discretion includes decisions about whether to reduce a “wobbler” offense—a crime that in the trial court’s discretion may be sentenced as either a felony or a misdemeanor—to a misdemeanor. (Pen. Code, § 17, subd. (b)(3); People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 976-977 (Alvarez).) Despite its breadth, a court’s exercise of this discretion must be based on an individualized consideration of the offense and the offender and must be exercised in a manner that is not arbitrary or capricious and that is consistent with the letter and spirit of the law. Factors to be considered in the decision include a defendant’s past criminal history and his appreciation of and attitude toward the offense. (Alvarez, at p. 978.) In the face of a silent record, this court will presume that a trial court was aware of its discretion and followed the law in performing its official duties. (Evid. Code, § 664; People v. Burnett (2004) 116 Cal.App.4th 257, 261 (Burnett).) “This presumption is a logical extension of the rule ‘concerning the presumption of regularity of judicial exercises of discretion apply[ing] to sentencing issues.’” (Burnett, at p. 261.)
Here, although the court did not specifically comment on its reasons for refusing to reduce J.W.’s felony to a misdemeanor, the same court had presided over all of the relevant hearings in the case. During the hearings and from the information in the probation report the court learned that J.W. had twice been cited for fighting and had once been suspended from school. It also learned that he did not appreciate the seriousness of his current crime. Despite the fact that the whole school had been thrown into confusion, despite the fact that students and their families had been made afraid for their lives, despite the fact that police and a bomb squad had had to search the campus and about 1600 students had stayed home from school on April 30, 2007, J.W. still thought everyone had taken his bomb-threat note as a “joke.” Finally, the court had learned that J.W.’s attitude was less than remorseful: he told the probation officer that he thought he should not receive any consequences for his act. In these circumstances, we cannot find that the court abused its discretion when it refused to reduce J.W.’s felony to a misdemeanor.
Similarly, a court has broad discretion to choose probation or other forms of custodial confinement in order to hold juveniles accountable for their behavior. One of the options is informal probation. (In re Eddie M. (2003) 31 Cal.4th 480, 507; Kody P. v. Superior Court (2006) 137 Cal.App.4th 1030, 1033-1034.) Factors to be considered when a court decides whether to grant informal probation are similar to those it considers when deciding whether to reduce a “wobbler” offense to a misdemeanor. They include the attitudes and maturity of the minor, the minor’s delinquency history, the recommendation of the referring agency (Cal. Rules of Court, rule 5.516(b)(4), (b)(5), (b)(6)), and “[a]ny other circumstances that indicate that a program of informal supervision would be consistent with the welfare of the child and the protection of the public.” (Cal. Rules of Court, rule 5.516(b)(9).)
Here, as discussed above, J.W.’s attitude demonstrated immaturity and a lack of appreciation for the magnitude of his offense and its effect on others. The probation department’s report properly recommended formal probation. The court did not abuse its discretion in concluding that this was the disposition most consistent with J.W.’s welfare and the protection of the public.
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., MILLER, J.