Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J0700422
Marchiano, P.J.
M.H. appeals from a dispositional order committing him to a ranch facility after he was found to have committed a felony violation of Penal Code section 76, by threatening a judge. The contested issue on appeal is whether the jurisdictional finding was supported by substantial evidence. We conclude that it was and affirm the finding.
I. FACTS
Defendant was transported by juvenile hall counselors David Ferguson and Sunny Smith on February 13, 2008, to appear before Judge Lois Haight in juvenile court on an allegation that he had tested positive for methamphetamine while on home supervision. Defendant expected to be released from custody, but Judge Haight ordered that he remain at juvenile hall until he had a clean drug test. Methamphetamine remains in a person’s system for 72 hours; thus, defendant was likely to be released in only a few days, but he was described as furious when the judge announced her decision.
Smith testified that when defendant received the ruling, “[h]e had tears in his eyes . . . and he was huffing and puffing in an angry manner, and he had his fists balled up.” Judge Haight, an experienced juvenile court judge who saw sometimes 50 minors a week in her courtroom, but was filling in for another judge on defendant’s case, found his demeanor at the time “bizarre.” She testified that defendant “was like Dr. Jekyll and Mr. Hyde.” She said that he was “very calm and smiling” before her ruling, but “the minute I detained him he . . . became extremely menacing in the court. [¶] . . . [¶] He was glaring at me. He was obviously furious. [¶] . . . [¶] I noticed a complete change come over [defendant’s] face in court, enough so that I gave a signal to my bailiff to watch him.”
Defendant was taken to the back of the courtroom where, according to Smith, he said, “anybody who looks at [me] funny is going to get it,” and according to Ferguson, said, “[f]uck that bitch.” Smith said that, after Judge Haight left the bench, defendant said, “That’s okay. I am going to call my cousin and have him peel her wig.” Ferguson recalled defendant saying, “I can make a phone call when I get back to Juvenile Hall, have my cousin peel her cap.” Smith said that a few seconds later, defendant asked, “What’s her name, Ms. Haights[?]”
Ferguson, who had worked for 18 years in the juvenile justice system, testified that defendant’s statement meant, “[t]o have somebody shoot [Haight] . . . beat her up . . . attack her.” Ferguson had heard on television and at juvenile hall the expression defendant used. Smith said that she took the statement to mean that Haight would be shot in the head. Smith said that when she advised defendant that she would have to report the threat, he just “shrugged his shoulders like he didn’t care.”
Deputy Sheriff Stephen Tanabe testified that when he interviewed defendant about the incident defendant initially denied making any threatening comments, but eventually admitted saying that “he would let his [two pit bull] dogs go on her.” Defendant testified that Tanabe asked him, “ ‘Would you do any bodily harm to her if you was to see her right now and you was just walking right now?’ ” Defendant said he answered, “ ‘At this time I would be walking my dogs and if she would have said anything I would have let my dogs go.’ ” Defendant said he did not remember saying that he would call his cousin and have him peel the judge’s wig. “The only thing I said referring to Judge Haight,” defendant testified, “is that I hope she dies in her sleep when I was angry.”
Juvenile hall personnel called Judge Haight’s bailiff to alert the judge to the threat. Haight recalled the bailiff telling her “in essence” that defendant had said, “ ‘I am going to get my gang to cap the Judge,’ and somehow kill me.” Haight testified that she took this as a serious threat. She said that she was afraid when she learned of the threat, “[g]iven the entirety of the circumstances.” Those circumstances included defendant’s reaction, and the response of his family—who were “screaming and . . . yelling”—to the ruling, and the prospect that defendant would soon be set free.
II. DISCUSSION
A. Substantial Evidence
Penal Code section 76 provides: “(a) Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any . . . judge . . . with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense . . . [¶] . . . [¶] (c) For purposes of this section, the following definitions shall apply: [¶] (1) ‘Apparent ability to carry out that threat’ includes the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date. [¶] (2) ‘Serious bodily harm’ includes serious physical injury or serious traumatic condition. [¶] . . . [¶] (5)’Threat’ means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.”
Defendant contests the sufficiency of the evidence to support findings that: (1) he intended his statement to be taken as a threat; (2) he had the apparent ability to carry out the threat; and (3) Judge Haight reasonably feared for her safety. The standard of appellate review in criminal cases applies in juvenile proceedings. (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605.) The question is whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.) We “ ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (Ibid.)
Whether a statement is intended to be taken as a threat is determined from the language used and the surrounding circumstances. (People v. Gudger (1994) 29 Cal.App.4th 310, 321 (Gudger).) According to the uncontradicted testimony of Ferguson and Smith, the words used here—peeling Haight’s wig or cap—were a threat to shoot her or beat her up. Defendant was furious with Judge Haight when he uttered the words; shortly before he said them, his demeanor toward Haight had been so menacing that she had signaled her bailiff to keep a watchful eye on him. Given the words defendant used, his “disgruntled and agitated state” (ibid.), and his “specific and well-focused pique with [the] [j]udge” (ibid.), the evidence was sufficient to support a finding that the statement was intended as a threat.
Defendant argues that he could not be found to have threatened Haight because he was only mumbling to himself about peeling her wig or cap, and he did not repeat that statement (compare Gudger, supra, 29 Cal.App.4th at pp. 314-315 [defendant repeatedly threatened to shoot the judge]). However, the record does not establish that defendant was merely muttering under his breath when he made the threat. Smith testified that defendant spoke quietly as if thinking out loud when he said that anyone looking at him funny was going to get it, but Ferguson said that defendant spoke in a normal tone of voice when he called Haight a bitch. Ferguson said that defendant “mumbled and came to the conclusion of saying [that he would have his] cousin peel her cap.” This testimony might have meant that defendant mumbled before, not while, making the threat. In any event, defendant’s tone of voice did not dictate a finding, one way or another, about whether a threat was intended. The same is true as to whether the threat was repeated. The evidence supported a finding that multiple threats were made: the wig or cap peeling threat Ferguson and Smith overheard, and the “let the (pit bull) dogs go on her” threat Tanabe testified that defendant admitted. The statute at any rate does not require the making of multiple threats.
Defendant contends that he could not be found to have had the ability to carry out the threat because the prosecution did not prove that he had a cousin (who could assault Haight), and he did not make any gestures when he voiced the threat (compare People v. Butler (2000) 85 Cal.App.4th 745, 754-755 [prosecution for threats under Pen. Code, § 422; defendant grabbed victim’s arm, forcibly invaded her home, and assaulted people inside].) Defendant could not have made any threatening gestures when he voiced the threat because, as Ferguson explained, he was “handcuffed and shackled” at the time. The prosecution was not required to prove that defendant had a cousin who could carry out the threat; it was sufficient to show that defendant himself would likely soon be released from custody. (See Pen. Code, § 76, subd. (c)(1) [prisoner with stated release date may be found to have apparent ability to carry out a threat].)
As to whether Judge Haight reasonably feared for her safety, the court could credit her testimony that she took defendant’s threat seriously. Moreover, “[b]ecause it was plainly evident [defendant] despised the judge and desired to harm her, the [trier of fact] could rationally infer [the judge] reasonably feared for her safety.” (People v. Andrews (1999) 75 Cal.App.4th 1173, 1179.)
Substantial evidence supports the court’s findings as to the essential elements for defendant’s violation of Penal Code section 76.
B. Dispositional Order
Defendant contends, the People concede, and we agree that the dispositional order was deficient because the court failed to calculate the maximum time of confinement as required by Welfare and Institutions Code section 726, subdivision (c).
III. CONCLUSION
The jurisdictional finding is affirmed. The dispositional order is reversed insofar as it fails to set forth the maximum time of confinement and should be corrected; in all other respects, the dispositional order is affirmed.
We concur: Swager, J., Margulies, J.