Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County No. JJD063988. Valeriano Saucedo, Judge.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A petition was filed alleging that Steven M., Jr. (the minor), came within the provisions of Welfare and Institutions Code section 602 because he committed four violations of the law. The juvenile court found all four counts true and ordered the minor to boot camp.
The minor argues that the true findings were not supported by sufficient evidence, evidence was erroneously admitted against him, and the juvenile court erred in its application of Penal Code section 17, subdivision (b). As we shall explain, we agree with some of the minor’s contentions. As a result, we will reverse the true finding in count 1 and remand the matter to the juvenile court for resentencing and clarification of the findings related to count 2.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
Counts 1, 2 and 3
Count 1 alleged the minor violated section 211, second degree robbery. This charge arose out of a struggle between the minor and his mother after she confiscated the minor’s cell phone. The struggle occurred on June 7, 2009, when the minor retaliated by taking his mother’s cell phone.
Count 2 alleged the minor violated section 459, first degree burglary. This charge arose out of conduct that occurred two days later when the minor returned to his mother’s residence threatening to harm the mother’s boyfriend.
Count 3 alleged the minor made criminal threats to the mother’s boyfriend, James K. (Hereafter James.) This conduct also occurred on June 9, 2009. The juvenile court heard the following testimony related to these counts.
On June 7, 2009, the minor was living with his mother. The minor’s mother and James determined there was a need to punish the minor and concluded that taking his cell phone from him was an appropriate form of punishment. The mother was unsure how long the minor would lose his cell phone, but estimated it would be about a month.
The minor attempted to get his cell phone back. When that attempt was unsuccessful, the minor took his mother’s cell phone out of her hand. She tried to take her cell phone from the minor by force. The minor refused to return the cell phone. The mother yelled at the minor to return the cell phone, and he responded with an expletive. The mother eventually fell over the table as she struggled to get her cell phone back from the minor. The mother hit her head on a table and injured her arm and leg. The mother told police officers at the time that the minor pushed her over the table, but claimed the statement was made out of frustration with the minor’s behavior.
The minor eventually returned the cell phone and then went to stay with his father. At that time, the mother wanted the minor to continue living with his father, but nothing definitive had been arranged and the minor had most of his personal belongings at his mother’s house. Nor did the minor’s mother object to the minor’s coming to the house to retrieve his personal belongings. The minor was not to come to the house unsupervised after June 9.
James recalled a time in June 2009 when he and the minor’s mother confiscated the minor’s cell phone for disciplinary purposes. James received a phone call on the minor’s cell phone while it was in his possession. Originally he thought the call was from the minor, but the caller was shouting so it was difficult to identify the voice. He eventually decided the phone call was not from the minor. The caller told James that “they” knew where he was and they were coming to “kick [his] ass.” James understood the caller’s comments to be a threat and was concerned. When James spoke to the police officer, he told the officer that he felt the caller would follow through on the threat. James decided to call the police when the minor showed up at the residence after James had left.
In June 2009, the minor’s grandmother was living with the minor and his mother. On June 7, the grandmother was in her bedroom when she heard the minor and his mother yelling. The grandmother came out of her bedroom and the yelling stopped. She denied seeing the minor strike his mother. She denied calling the police that day or speaking with an officer. She later recalled speaking with an officer, although she could not recall the officer to whom she spoke.
The grandmother could not recall an incident a few days later where the minor appeared at the residence when he was not supposed to be there. She could not recall calling the police because of the minor’s behavior. She, however, recognized her voice on the tape of a call made to the emergency operator.
Visalia City Police Officer Adam Aguallo was dispatched to James’s residence on June 9, 2009. While there, Aguallo spoke with the minor’s mother. She informed him that a few days earlier she had approached the minor to retrieve her cell phone when the minor pushed her and caused her to fall over a table. The minor then kicked her leg and stomach while she was lying on the ground. She eventually retrieved her cell phone from the minor when the minor put it down.
Aguallo also spoke with James that date. James stated that he had received a phone call from the minor on the minor’s cell phone. In that phone call, the minor threatened to “beat the shit out of” James.
Aguallo also spoke with the grandmother, who advised him that she had seen the minor kick his mother in her leg and stomach two days before the interview. The grandmother told Aguallo that on the day of the interview the minor had come to the residence with another individual and had threatened to kill James.
Count 4
The petition alleged in count 4 that the minor violated Health and Safety Code section 11360, subdivision (a), possession of marijuana for sale. This charge arose out of conduct that occurred on October 13, 2009. The juvenile court heard the following testimony related to this count.
On October 13, 2009, Juvenile Detective Dustin Thompson was assigned to the high school attended by the minor when he received a call from a teacher reporting the odor of marijuana. Thompson and a school vice-principal responded to the report and eventually found marijuana that had been brought into the classroom by Salvador C. (Hereafter Salvador.) There was a usable amount of marijuana discovered, although less than one ounce. Salvador stated that he had obtained the marijuana from the minor. The minor was then brought to Thompson’s office. He admitted that he gave the marijuana to Salvador but denied selling the marijuana to Salvador.
Thompson confiscated Salvador’s cell phone. On the cell phone Thompson found text messages to and from Salvador to a Steven M. that established the minor sold the marijuana to Salvador. Thompson confirmed through the minor’s father that the phone number listed for Steven M. was the number to the minor’s cell phone.
Defense case
The minor’s mother testified that she did not tell Aguallo that the minor had struck her during the June 7 incident.
Adjudication
The juvenile court found all four allegations true, although it reserved the right to declare counts 1 and 2 to be misdemeanors pursuant to section 17, subdivision (b). At the dispositional hearing, the juvenile court determined that counts 1 and 2 should be reduced to misdemeanors and ordered the minor to participate in a one-year boot camp program.
DISCUSSION
Although argued under various theories, the minor’s various contentions are a challenge to the sufficiency of the evidence. His primary arguments rely on a claim that the juvenile court erroneously admitted evidence. First we will analyze the evidentiary claims and then discuss the sufficiency of the evidence.
I. Erroneous Admission of Evidence
The minor argues the juvenile court erroneously admitted into evidence the text messages that provided the only evidence that the minor sold the marijuana as alleged in count 4. In addition, the minor claims the juvenile court improperly permitted the prosecution to introduce into evidence statements made by the grandmother to officers, since they were hearsay and no exception to the hearsay rule applied.
We review the juvenile court’s evidentiary rulings for an abuse of discretion. (People v. Brady (2010) 50 Cal.4th 547, 558.) “An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court’s decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.] The abuse of discretion standard affords considerable deference to the juvenile court, provided that the court acted in accordance with the governing rules of law. ‘“The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown. [Citation.]” [Citations.]’ [Citation.] A decision ‘that transgresses the confines of the applicable principles of law is outside the scope of discretion’ and is an abuse of discretion. [Citations.]” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.)
Cell phone text messages
In count 4, the People alleged that the minor had sold marijuana to Salvador. The investigating officer testified that he was called to investigate the odor of marijuana in the classroom at the high school. A search of various students established that Salvador possessed less than one ounce of marijuana. A cell phone was recovered from one of Salvador’s pockets. The prosecutor introduced into evidence several text messages received on, and sent from, the cell phone. The prosecutor established through the minor’s father that the text messages were sent by Salvador to the minor’s cell phone, and the responses were sent from the minor’s cell phone.
The relevant text messages began with the minor asking the buyer if he wanted “to buy any herb?” The message was sent on October 12, 2009, at 3:38 p.m. The buyer replied that he was interested and told the minor to “bring a 10” the next day. This message was sent on October 12 at 3:39 p.m. One minute later the minor confirmed the transaction-“For sure, Bro.” At 10:56 p.m. on the same date the buyer sent a text message to the minor reminding him to bring the “dime.” The minor replied one minute later with “Find me in the morning, I’ll have it.” On October 13, Salvador was found with marijuana in his possession.
Defense counsel repeatedly objected that the messages were inadmissible because the prosecution failed to establish a proper foundation for the messages. The minor renews his objection here. He asserts that while the text messages sent to the buyer’s cell phone were sent from the minor’s phone, there was no evidence that they were sent by the minor. He also argues there was no evidence that the messages sent by the buyer were sent to the minor’s cell phone. Because this foundation was not established, the minor contends the messages were inadmissible hearsay.
The minor frames his argument in terms of a lack of authentication. “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.) A writing must be authenticated before it may be introduced into evidence. (Id., § 1401, subd. (a).) Circumstantial evidence and content are both valid means of authenticating a writing. (People v. Smith (2009) 179 Cal.App.4th 986, 1001-1002; People v. Gibson (2001) 90 Cal.App.4th 371, 383.)
We assume, without deciding, that text messages are a writing within the meaning of the Evidence Code, a proposition with which neither party disagrees.
Here, the circumstantial evidence adequately authenticated the text messages. First, the minor’s father confirmed that the phone number Salvador received messages from, and to which Salvador sent messages, belonged to the minor’s cell phone. There was no evidence to suggest that anyone other than the minor had access to, or sent messages from, the minor’s cell phone. The only logical inference that can be drawn from these facts is that the minor was the person with whom Salvador was communicating.
Moreover, the content of the messages themselves confirmed that they were communications between the minor and Salvador. The messages clearly established that on October 12, 2009, Salvador was seeking to purchase a small quantity of marijuana from whomever possessed the minor’s cell phone. On October 13, Salvador was found in possession of a small quantity of marijuana. The minor admitted providing the marijuana to Salvador but denied the transaction was a sale.
The minor contends there must be absolute proof of the foundational facts before the juvenile court can consider the evidence. He, however, has provided no authority that such is required. Indeed, such a burden would be impossible to meet absent a confession by both the sender and receiver.
The facts presented here, and the logical inferences drawn from them, are sufficient to establish the foundation necessary for the texts to be admitted and considered by the juvenile court. The juvenile court did not abuse its discretion when it admitted the text messages found on Salvador’s cell phone.
Impeachment of the grandmother
The grandmother’s testimony differed significantly from the statements she gave to officers who responded to the scene and the statements she made when she called for emergency assistance. She denied making many of the statements that were harmful to the minor’s case and claimed she could not remember making other similar statements. For example, she denied (1) calling the police, (2) seeing the minor hit or kick his mother, (3) the minor coming to the house two days later, (4) telling an officer that she saw the minor kicking the mother in the stomach and leg, (5) telling an officer that the minor came to the house in a rage a few days later, and (6) telling an officer that the minor threatened to kill James.
The grandmother also claimed she could not recall (1) the minor directing profane language at her, (2) informing James the minor had been at the residence, and (3) telling an officer that the minor had been at the residence with a Hispanic gentleman. The grandmother claimed she had a hard time remembering things because of her health.
When the prosecutor called Aguallo to testify to the numerous inconsistent statements the grandmother had made when he interviewed her, defense counsel objected on hearsay grounds, asserting that because the grandmother could not recall making various statements, the impeachment exception to the hearsay rule did not apply. The minor renews this objection here.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. (Evid. Code, § 1200, subd. (a).) Hearsay generally is not admissible. (Id., subd. (b).) There are, however, numerous exceptions to the hearsay rule. (Id., § 1220 et seq.) The People argue that Aguallo’s testimony was admissible because he testified to prior inconsistent statements made by the grandmother. (Id., § 1235.)
Evidence Code section 1235 provides that an out-of-court statement made by a witness that is inconsistent with the witness’s testimony at the hearing is admissible. “Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness’s prior statement describing the event. [Citation.] However, courts do not apply this rule mechanically. ‘Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’[s] prior statement [citation], and the same principle governs the case of the forgetful witness.’ [Citation.] When a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness’s ‘I don't remember’ statements are evasive and untruthful, admission of his or her prior statements is proper. [Citation.]” (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.)
There is a difference between a denial, and a failure to recollect. A significant portion of the questioned evidence involves the grandmother’s denial of making certain incriminating statements. These denials do not involve her failure to recollect and are not difficult to analyze.
About the June 7 incident, the record reveals that Aguallo testified that the grandmother told him she heard a loud crash, went into the living room, and saw the minor kicking his mother in the leg and stomach. She told the minor to leave his mother alone. At the hearing she denied seeing the minor kicking his mother, so Aguallo’s testimony that the grandmother admitted seeing the minor kicking his mother was an admissible inconsistent statement. Whether the grandmother told the minor to leave his mother alone could not have caused the minor any prejudice. So, if this statement was admitted erroneously, the error was harmless.
About the June 9 incident, Aguallo testified that the grandmother told him that the minor barged into her room, asked for his mother’s location, and stated that James was lucky because the minor and his friend were there to kill him. The grandmother also told Aguallo that the minor stated he wished she would die, and he went through the house slamming items.
Since the grandmother denied the minor came to the residence in a rage on June 9, and denied the minor threatened to kill James, this portion of Aguallo’s testimony properly was admitted as inconsistent statements. With regard to the other statements made by the minor on June 9, none were directly relevant to the issues before the juvenile court and, if they were admitted erroneously, the error was harmless.
II. Sufficiency of the Evidence
We now turn to the claims that the charges were not supported by substantial evidence. We review claims of insufficient evidence using well established rules.
“When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.) “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (Jackson v. Virginia (1979) 443 U.S. 307, 318-319); see People v. Staten (2000) 24 Cal.4th 434, 460. “[I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.” (People v. Bean (1988) 46 Cal.3d 919, 933.) “In a case, such as the present one, based upon circumstantial evidence, we must decide whether the circumstances reasonably justify the findings of the trier of fact, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding would not warrant reversal of the judgment. [Citation.]” (People v. Proctor (1992) 4 Cal.4th 499, 528-529.) The same standard applies in juvenile proceedings. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371-1372.)
Count 4-possession of marijuana for the purposes of sale
The minor argues that there was insufficient evidence that he possessed the marijuana for the purposes of sale, in violation of Health and Safety Code section 11360, subdivision (a). His argument is premised on his assertion that the text messages discussed above were inadmissible. The minor contends that if the text messages are not considered, there is no proof that he sold the marijuana to Salvador. Since we have concluded the juvenile court did not abuse its discretion in admitting the text messages, and the text messages reflect a clear intent to sell marijuana to Salvador, we reject this argument.
Count 2-burglary
The minor contends the true finding on the burglary count must be reversed for two reasons.
First, the minor argues that there was insufficient evidence that he entered the residence on June 9 with the intent to commit a felony. Without the grandmother’s statements to Aguallo that were admitted into evidence, the minor claims there was no evidence to support this element of the crime. As explained above, we conclude that the grandmother’s statements properly were admitted, and these statements established an intent to commit, at a minimum, an assault resulting in great bodily injury. Accordingly, we reject this argument.
Second, the minor argues that since he lived at the residence, he could not have committed a burglary. In People v. Gauze (1975) 15 Cal.3d 709, 714 (Gauze), the Supreme Court held that one cannot commit a burglary of his or her own home because he or she has a possessory right of habitation. The Supreme Court reasoned that a burglary can be committed only by a person who does not have any right to be in the building. (Ibid.) Since Gauze was a cotenant in the apartment in which the incident occurred, the Supreme Court reversed the burglary conviction. (Id. at p. 717.)
People v. Ulloa (2009) 180 Cal.App.4th 601 provides a useful example of a situation where the defendant did not have a possessory right of habitation. The victim and the defendant were married, and both signed a lease for the apartment in which the incident occurred. There was substantial evidence, however, that at the time of the incident the victim and defendant were separated, and the defendant was living elsewhere. The appellate court rejected the defendant’s contention that he could not be convicted of burglary because he was a tenant under the lease. “Here, there was evidence defendant and [the victim] were estranged and separated due to having serious marital problems; defendant had voluntarily moved out of the apartment; defendant had committed prior domestic violence against [the victim]; and [the victim] feared defendant. Also, because defendant yelled at [the victim] from outside the apartment at 5:00 a.m. and broke in, a reasonable inference could be drawn that defendant no longer had a key to the apartment and entered without [the victim’s] consent, with intent to commit theft or some other crime. Under such circumstances there was sufficient evidence supporting a finding that defendant did not have an unconditional possessory interest in the apartment. We thus conclude the apartment lease did not constitute a complete defense to burglary and there was sufficient evidence supporting defendant’s burglary conviction.” (Id. at p. 610.)
The minor relies on Gauze to argue that since he lived at the residence, he had a possessory right of habitation and could not commit a burglary. The issue is whether there was substantial evidence that the minor did not have the right to be in the residence. We conclude there was sufficient evidence.
The minor’s mother testified that on June 7, two days before the incident that led to the burglary charge, she had an argument with the minor during which she attempted to take his cell phone as punishment. A struggle of uncertain proportions occurred. After the struggle the police were summoned, and the minor’s father was called to remove the minor from the residence. The mother had not decided whether the minor would live with his father permanently, but she considered the arrangement to be at least “semipermanent.” The minor had a lot of personal items at the residence, but his mother wanted him to stay with his father. The minor was told his options were to go to juvenile hall or stay with his father. The minor was told staying with his mother was not an option.
On cross-examination, the mother admitted that it would have been permissible for the minor to retrieve his personal belongings from the residence. The minor, however, did not have a key to the residence, and the mother wanted the minor to stay at his father’s house.
Although the mother testified that the minor could come to the residence to pick up his things, she was clear that the minor was not staying at the residence after the June 7 incident. The juvenile court logically could have inferred that the minor no longer had a possessory interest in the residence after June 7 and therefore could commit a burglary if he entered the residence without permission. Since it was undisputed the minor did enter the residence without permission, there was substantial evidence that a burglary occurred.
Count 1-robbery
The crime of robbery requires the intent to deprive the owner permanently of his or her property. (People v. Smith (2009) 177 Cal.App.4th 1478, 1488-1490.) In People v. Avery (2002) 27 Cal.4th 49 (Avery), the Supreme Court held that the requirement that the perpetrator intend to deprive the victim permanently of his or her property cannot be interpreted literally and includes depriving the victim of his or her property “for so extended a period as to deprive the owner of a major portion of its value or enjoyment.” (Id. at p. 55.)
The minor was charged with robbery as a result of the June 7 incident where he took his mother’s cell phone and refused to return it. He argues that there was not substantial evidence that he intended either to deprive his mother permanently of her cell phone or to take it for a period of time that would deprive her of a major portion of its value or enjoyment. We agree.
“‘[I]ntent is inherently difficult to prove by direct evidence. Therefore, the act itself, together with its surrounding circumstances must generally form the basis from which the intent of the actor may legitimately be inferred.’ [Citation.]” (People v. Edwards (1992) 8 Cal.App.4th 1092, 1099.) As is typical, there was no direct evidence of the minor’s intent. The circumstances of the incident, however, are compelling.
The mother confiscated the minor’s cell phone as punishment for an undisclosed transgression. Although the issue apparently was undecided at the time, the mother testified that she probably would not have returned the cell phone to the minor for one month. The minor became upset and, in a childish attempt at retaliation, he took his mother’s cell phone and refused to give it back to her. He did not run out of the residence or attempt to damage the cell phone; he merely sat on the couch and refused to return the cell phone on his mother’s demand. The mother’s cell phone was returned the same day.
The juvenile court erroneously sustained the prosecution’s objection to testimony of other similar instances of the minor taking, and returning, his mother’s cell phone when his was confiscated. The testimony was relevant circumstantial evidence of his intent on this occasion. The minor does not assign this ruling as error, so we will not review it. Nor is this evidence necessary to resolve this issue.
We cannot conclude from this circumstantial evidence that the minor intended to deprive his mother permanently of her property. Nor can a plausible inference be drawn to conclude that he intended to deprive his mother of the cell phone for a period of time that would have resulted in depriving his mother of a major portion of its value of enjoyment. Typically, this provision applies to property that is dated material, perishable, or food for only seasonal use. (Avery, supra, 27 Cal.4th at p. 56.)
Even if we assume, as the People suggest, that the minor intended to keep his mother’s cell phone until she returned his phone, an assumption with little or no evidentiary support, the loss of use of the cell phone for one month would not have deprived the mother of a major portion of its value or enjoyment. There was no evidence that this cell phone would lose any value in 30 days. Nor was there any evidence of what consequence, if any, would be imposed on the mother by her cell phone provider if she did not possess the cell phone. The loss of use of the cell phone would appear, at most, to be nothing more than an inconvenience for the mother.
The lack of evidence that the minor intended to deprive his mother permanently of the cell phone requires reversal of the true finding on this count.
Count 3-Criminal threat
The juvenile court found true the allegation that the minor violated section 422. In part, the prosecution was required to prove the minor made a threat to kill or cause great bodily injury to the victim and that the minor intended the threat be communicated to the victim. (CALCRIM No. 1300.) The minor argues there was not substantial evidence to establish this element.
The prosecution argued that either of two statements made by the minor could support the charge. One was the statement made by the minor on June 9, when he entered the residence when only the grandmother was present. The grandmother told officers on this occasion that the minor stated that James was lucky he was not at the residence because the minor and his companion were going to kill him.
The minor argues that this statement was insufficient to support the charge because there was no evidence to indicate that he intended the statement to be communicated to James. The minor is correct.
The minor also argues this statement was admitted erroneously as a prior inconsistent statement. As explained above, we reject this argument.
Nothing in the statement itself indicated that the minor wanted his grandmother to communicate the statement to James. Instead, the statement, standing alone, simply was a comment to the grandmother from an angry, immature child. Nor did the minor’s previous statements to James suggest that the minor knew his grandmother would communicate the statement to James because there was no evidence that the grandmother was told about the statements the minor made directly to James. Instead, the only logical inference was that the grandmother, having heard the rantings of the minor on numerous occasions, simply would disregard the statement as harmless nonsense.
This conclusion, however, does not resolve the issue because the other statement made by the minor was sufficient to support the charge. Although there was some inconsistency in the testimony, it is clear that the minor spoke with James on the phone when James possessed the minor’s cell phone. During this call the minor threatened to harm James physically. The minor argues that the circumstances surrounding the threat established that the minor merely was making comments without any intent to carry them out. We disagree.
The minor relies on In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.) to support his position. Ricky, a high school student, left the classroom to go to the bathroom. When he returned to the classroom, the door was locked. The teacher opened the door, apparently accidentally hitting Ricky in the head. Ricky cursed the teacher and stated that he was “‘going to get’” the teacher. (Id. at p. 1135.) The teacher admitted that Ricky did not make a specific threat or commit any other act of aggression. The teacher felt threatened and reported the matter. When interviewed by authorities, Ricky admitted “getting in [the teacher’s] face, ” but stated he did not threaten the teacher, nor did he intend to threaten the teacher. (Ibid.) One week later Ricky was interviewed a second time by authorities, and this time he admitted stating to the teacher that he told the teacher he was going to “kick [his] ass.” (Id. at p. 1136.)
Emphasizing that it was required to analyze the statements while considering all of the circumstances, that appellate court concluded that there was insufficient evidence that Ricky had made a true threat. (Ricky T., supra, 87 Cal.App.4th at p. 1139.) “It is clear by case law that threats are judged in their context. [Citations.] By this standard, appellant’s ‘threats’ lack credibility as indications of serious, deliberate statements of purpose. The lack of surrounding circumstances information is striking.” (Id. at p. 1137.) The appellate court also noted the lack of prior confrontations between Ricky and the teacher.
“In contrast to other cases upholding section 422 findings, there was no evidence in this case to suggest that appellant and [the teacher] had any prior history of disagreements, or that either had previously quarreled, or addressed contentious, hostile, or offensive remarks to the other. (See, e.g., People v. Mendoza (1997) 59 Cal.App.4th 1333, 1341-1342 … [the use of surrounding circumstances-defendant and the victim had been associated with a gang and defendant knew the victim had testified at a trial regarding a gang member-changed seemingly nonspecific words into a threat]; [People v.] Martinez [(1997)] 53 Cal.App.4th [1212, ] 1214-1216 [defendant and one of the victims were involved in a stormy relationship]; People v. Allen (1995) 33 Cal.App.4th 1149, 1151-1154 … [same]; People v. McCray (1997) 58 Cal.App.4th 159, 172 [defendant’s past violence toward the victim was relevant to the determination of whether defendant made a terrorist threat]; [People v.] Stanfield [(1995)] 32 Cal.App.4th [1152, ] 1154-1157 [attorney’s emotionally disturbed ex-client was properly convicted for terrorist threats, even though the threat was grammatically conditional, because circumstances revealed other threats and defendant’s possession of the means of accomplishing the threat].) Nor was there evidence that a physical confrontation was actually imminent. (See People v. Lepolo (1997) 55 Cal.App.4th 85, 88-90 [defendant raised a machete over his head, pointed to a police officer, and said ‘“I want that officer”’].)
“Appellant’s intemperate, rude, and insolent remarks hardly suggest any gravity of purpose; there was no evidence offered that appellant’s angry words were accompanied by any show of physical violence-nothing indicating any pushing or shoving or other close-up physical confrontation. [The teacher] told [the investigator] that appellant had ‘not … further[ed] the act of aggression.’ There is no evidence that appellant exhibited a physical show of force, displayed his fists, damaged any property, or attempted to batter [the teacher] or anyone else.” (Ricky T., supra, 87 Cal.App.4th at p. 1138.)
The minor contends the circumstances surrounding this case parallel Ricky T. We disagree. The grandmother testified that the minor had been arguing with his mother frequently. The mother admitted a confrontation two days before James was threatened, and she informed officers that the minor pushed her to the floor and kicked her while she lay on the ground. The mother admitted that James participated in the decision to punish the minor by taking away his cell phone. Two days later the minor called his cell phone and James answered it. The minor made statements that adequately conveyed an intent to cause James harm. The minor then came to the residence with a friend and reiterated that he was there to “kill” James. These circumstances demonstrated an out-of-control teenager acting out violently. Unlike Ricky T., the minor had a very recent history of violence with his mother and acted to carry out his threat against James by coming to the residence, where he was not permitted, and making additional threats against James, even though James was not present. This was more than substantial evidence to support the true finding on this count.
III. Section 17, Subdivision (b)
At the dispositional hearing, the juvenile court declared counts 1 and 2 to be misdemeanors pursuant to section 17, subdivision (b). Section 17, subdivision (b) provides that when a court has discretion to punish a crime as either a misdemeanor or a felony, the crime will be classified as a misdemeanor if one of the enumerated circumstances exist. As the parties agree, the juvenile court exceeded its authority when it did so.
Section 17, subdivision (b), by its terms, applies only to crimes that generally are referred to as “wobblers, ” i.e., crimes that can be punished either as felonies or misdemeanors. (People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 974.) For example, second degree burglary is a wobbler because it can be punished “by imprisonment in the county jail not exceeding one year or in the state prison.” (§ 461, subd. (b).) “Absent alternate punishment authorized by statute, a trial court ‘has no power to reduce a straight felony to a misdemeanor.’ [Citations.]” (People v. Mauch (2008) 163 Cal.App.4th 669, 674.)
The juvenile court found true the allegations that the minor had violated sections 211 and 459. As we have concluded, there was not substantial evidence to support the section 211 charge, and we will not concern ourselves with that charge. A violation of section 459, first degree burglary, however, is a straight felony. Burglary in the first degree is punishable “by imprisonment in the state prison for two, four, or six years.” (§ 461, subd. (a).) Therefore, the juvenile court exceeded its jurisdiction when it “reduced” count 2 to a misdemeanor.
While the parties agree the juvenile court erred, they differ on the appropriate remedy. The People urge us to recalculate the maximum period of confinement, considering the burglary to be a felony. We reject this approach primarily because we also have reversed the true finding on the robbery charge because there was insufficient evidence.
The minor urges us to remand this matter to the juvenile court to allow it to determine what it really meant to do. The minor notes that the juvenile court stated at the adjudication hearing, after it found the allegations in the petition true, that it was reserving the right to consider the burglary charge to be a misdemeanor. When asked by defense counsel if the court was reserving judgment on count 2, the juvenile court stated it was “with respect to whether it is felony or misdemeanor conduct.” At the dispositional hearing, the juvenile court specifically found the burglary was “misdemeanor, not felony, conduct.”
It is clear the juvenile court concluded the minor’s actions did not support a felony conviction of first degree burglary, yet it found the charge true. Under these circumstances we will remand the matter to the juvenile court to allow it to clarify its findings on count 2.
DISPOSITION
The true finding on count 1 is reversed and the juvenile court is ordered to enter a finding that the count is not true. The judgment is affirmed in all other respects, with the exception of count 2, which we will remand to the juvenile court to allow it to clarify its findings.
WE CONCUR: WISEMAN, Acting P.J., POOCHIGIAN, J.