Opinion
A148565
12-20-2017
In re C.U., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.U., Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT] THE COURT: It is ordered that the opinion filed herein on December 20, 2017, be modified as follows:
1. On page five of the opinion, the paragraph beginning with the words "C.U. suggests there was insufficient evidence," shall be deleted and replaced with the following three paragraphs:
C.U. suggests there was insufficient evidence to support a finding that she said anything to G.L. that was " 'so unequivocal, unconditional, immediate, and specific as to convey to [G.L.] . . . a gravity of purpose and an immediate prospect of execution of the threat' " (Toledo, supra, 26 Cal.4th at p. 228), or to cause her to be in sustained fear for her personal safety (Ricky T., supra, 87 Cal.App.4th at pp. 1139-1140). C.U. emphasizes the lack of substantial evidence supporting two elements of the offense: specificity and immediacy.
In People v. Wilson (2010) 186 Cal.App.4th 789 (Wilson), where similar issues were raised, the defendant prison inmate, while handcuffed and being escorted across the prison yard, said to a guard: "I get out in ten months. I find people. That's what I do, and I'm going to find you, and I'm going to blast you." (Id. at p. 798.) When returned to a holding cell, he made gestures with his hands to simulate shooting the guard from inside the cell. (Id. at pp. 798, 815.) Although the defendant's threat was to shoot the guard ten months in the future, the Fifth Appellate District held his threat was sufficiently specific where he threatened the victim with death or great bodily injury. (Id. at p. 806.) With respect to immediacy, the court noted that while the threats statute "requires the threat to convey ' "a gravity of purpose and an immediate prospect of execution of the threat," ' it 'does not require an immediate ability to carry out the threat.' " (Id. at p. 807.) Rather, the immediacy element requires " 'that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out.' " (Ibid., quoting People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.) The gravamen of section 422 is the "knowing infliction of mental terror" upon the victim. (Wilson, at p. 806.) G.L.'s knowledge of C.U.'s prior violent acts could properly be considered in determining that C.U.'s threats did convey to G.L the prospect that C.U. would carry out the threat imminently, which reasonably caused G.L. to be in sustained fear. (See People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
C.U. argues that her statements to G.L were ambiguous, citing In re George T. (2004) 33 Cal.4th 620, a case involving a high school student's actions in giving two classmates a poem with various "discomforting and unsettling" lines in it. (Id. at pp. 624-626, 636.) In that case, our Supreme Court held that "a reviewing court should make an independent examination of the record in a section 422 case when a defendant raises a plausible First Amendment defense to ensure that a speaker's free speech rights have not been infringed by a trier of fact's determination that the communication at issue constitutes a criminal threat." (Id. at p. 632.) The context here matters. Far more than words were involved. C.U.'s course of conduct on the evening in question—which included punching another ward in the face, assaultive conduct for which C.U. had to be handcuffed and pepper-sprayed—plainly indicates that staff at the Girls in Motion Treatment Program viewed her as immediately dangerous to the safety of those around her. G.L. also testified that, because of appellant's history of assaultive conduct, she decided against returning to appellant's room out of fear appellant would attack her. Even assuming C.U. had asserted a First Amendment defense (which she failed to do in the juvenile court), we view as frivolous the suggestion that adjudicating her guilty of a making a criminal threat against G.L. somehow presents a risk to First Amendment values. Whether reviewed under an independent examination standard or for substantial evidence, there is ample evidence in the record here to support a determination that, in threatening G.L., C.U. violated section 422, subdivision (a). There is no change in the judgment. Appellant's petition for rehearing is denied. Dated: __________
/s/_________, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1101519)
In this juvenile delinquency case, C.U., a previously adjudicated ward, was found to have violated section 245, subdivision (a)(4), section 422, subdivision (a), and section 69 of the Penal Code. She appeals, attacking the adjudications for insufficiency of the evidence. We affirm.
All statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
The Contra Costa County District Attorney's Office filed a petition under Welfare and Institutions Code Section 602 charging C.U., an adjudged ward, with three criminal offenses alleged in separate counts: assault by force likely to produce great bodily injury (§ 245, subd. (a)(4)), making a criminal threat (§ 422, subd. (a)), and resisting an executive officer (§ 69). All three counts were sustained. The court ordered C.U. to serve two years and 93 days of confinement and continued C.U.'s wardship, with no termination date. The evidence from the hearing is summarized below.
A. C.U. is a Previously Adjudicated Ward
In 2011, C.U. was found to have committed a misdemeanor violation of section 148, subdivision (a)(1) for resisting, delaying or obstructing a peace officer in Alameda County. She was transferred to Contra Costa County and adjudged a ward of the court. In 2014, following her tenth sustained probation violation, C.U. was committed to the Girls in Motion Treatment Program. On December 2, 2014, while housed in Juvenile Hall, C.U. attacked another resident, J.O.
B. C.U. Assaults J.O.
The incident involving J.O. occurred one evening in an all-girls unit during a movie night. Because the girls were expected to watch the movie in silence, a probation counselor repeatedly reprimanded C.U. for talking during the movie. C.U. refused to stop talking, and as a result, was ordered to go to her room. As C.U. was getting up to leave, J.O., another female minor in juvenile hall, whispered something at C.U. that made her upset. C.U. blurted out, "What are you laughing for, Bitch?" and threw her juice at J.O.'s face.
J.O. stood up and C.U. immediately began to punch J.O. in the face, causing J.O. to fall back on a cement ledge. C.U. then climbed on top of J.O. and continued to punch her face. Staff members rushed to intervene to stop the fight. Staff pepper sprayed C.U. multiple times to restrain her, without apparent effect on C.U. From the record it appears J.O. was not fighting C.U. back. J.O. suffered bruising around her eyes and a cut below one eye in the attack. Eventually, C.U. was handcuffed and escorted to the showers to rinse the pepper spray from her face, and then to her room.
While C.U. was being escorted to the showers, she repeatedly struggled to free herself, used profane language, and made threats to the staff members who were escorting her. C.U.'s aggressive behavior and refusal to follow orders resulted in the staff taking her down into a prone position multiple times. One of the staff members was left with a bruise on her arm, caused by struggling with C.U. Due to past suicide attempts, when C.U. was escorted to her room, staff removed her clothing and the sheets from her room for her safety, and she was clothed in a suicide-resistant smock.
C. C.U. Threatens G.L.
Later the same evening, C.U. made threatening statements to a probation counselor, G.L. After her physical altercation with J.O., C.U. was locked in her room. Because C.U.'s bedding and clothes were removed from her room as a safety measure, G.L. went to C.U.'s room to talk to her and see if she could return C.U.'s things. When G.L. approached C.U.'s room and tried speaking to her, C.U. aggressively told G.L.: "Fuck you, bitch. I'm going to fucking get you, bitch. Wait until I get out of this room, bitch."
C.U.'s statements alarmed G.L. because C.U. had an aggressive demeanor and tone. G.L. claims that she was concerned about her safety because she knew of several instances where C.U. had gotten physical with staff. G.L. decided not to return C.U.'s things because she was afraid that C.U. was going to physically attack her when she opened the door to C.U.'s room. Due to C.U.'s past behavior, G.L. was afraid that C.U. intended to pull her hair, punch her in the face, and kick her.
II. DISCUSSION
On appeal, C.U. mounts sufficiency of the evidence challenges to her convictions, focusing the appeal on her section 245, subdivision (a)(4) and section 422, subdivision (a) sustained counts. We review these adjudications for substantial evidence (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136; People v. Russell (2005) 129 Cal.App.4th 776, 786) and in doing so consider the whole record, evaluating the evidence in the light most favorable to the judgment. (Ricky T., supra, at p. 1136.) We look to whether the record discloses substantial evidence from which a reasonable trier of fact could find the essential elements of each crime true beyond a reasonable doubt. (Ibid.) We conclude it does for each challenged adjudication.
A. The Record Supports the Conviction for Violation of Penal Code 245 , Subdivision (a)(4)
Under section 245, subdivision (a)(4), "[a]ny person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." C.U. argues that she did not use force great enough to cause great bodily injury, relying on People v. Duke (1985) 174 Cal.App.3d 296, 302, but that case is inapposite. We find substantial evidence in the record to support the court's determination that, in attacking P.O., C.U. violated section 245, subdivision (a)(4). (People v. Roberts (1981) 114 Cal.App.3d 960, 965.)
B. The Record Supports the Conviction for Violation of Penal Code 422 , Subdivision (a)
Section 422, subdivision (a) criminalizes willful threats "to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . be taken as a threat, even if there is no intent of actually carrying it out . . . ." "In order to prove a violation of section 422 [subdivision (a)], the prosecution must establish all of the following: (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 . . . 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." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
C.U. suggests there was insufficient evidence to support a finding that she said anything to that was " 'so unequivocal, unconditional, immediate, and specific as to convey to [G.L.] . . . a gravity of purpose and an immediate prospect of execution of the threat' " (Toledo, supra, 26 Cal.4th at p. 228), or to cause her to be in sustained fear for her personal safety (Ricky T., supra, 87 Cal.App.4th at pp. 1139-1140). We disagree. G.L.'s knowledge of C.U.'s prior violent acts could properly be considered in determining that C.U.'s threats caused G.L. to be in sustained fear. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) There is substantial evidence in the record to support the court's determination that, in threatening G.L., C.U. violated C.U. violated section 422, subdivision (a).
III. DISPOSITION
The judgment is affirmed.
/s/_________
Streeter, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Rivera, J.