Opinion
B297710
04-24-2020
In re GUADALUPE R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. GUADALUPE R., Defendant and Appellant.
Holly Jackson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NJ29866) APPEAL from an order of the Superior Court of Los Angeles County, John H. Ing, Judge. Reversed. Holly Jackson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Guadalupe R., a minor, appeals the sufficiency of the evidence supporting the juvenile court's finding that she made a criminal threat. We agree there is insufficient evidence Guadalupe specifically intended that the statements at issue be taken as a threat, and reverse.
BACKGROUND
We summarize the facts presented by the People; Guadalupe did not adduce any evidence on her own behalf other than through cross-examination of the People's sole witness, Gennifer Arciga.
Guadalupe's mother was Arciga's best friend, and Arciga had known Guadalupe since Guadalupe was a child. Guadalupe's uncle was Arciga's former boyfriend.
Guadalupe had an Instagram account, and her followers included family and friends (including members of Arciga's family). Arciga had been one of those followers, until Guadalupe's uncle was charged by authorities with molesting Arciga's daughter. After this criminal charge, Arciga stopped following Guadalupe's Instagram account on January 17, 2019.
On April 11, 2019, Guadalupe made a post to her daily story on Instagram. An Instagram story disappears after 24 hours. The post listed the names of Arciga and Arciga's children, including the child that was the alleged molestation victim. It also listed other names, including Guadalupe's mother and her deceased father. The post included the words "If you see your name on my death list your [sic] dead" and "I fucking hate my friend, my family." It also had emojis for a gun, a happy face, and a crying face.
One of Arciga's family members, Evelyn Espinosa, saw the Instagram story (which was public) about one hour after Guadalupe's post. Espinosa took a screen shot of Guadalupe's Instagram story, and texted it to Arciga. There was no evidence Guadalupe told Espinosa to show Guadalupe's Instagram story to Arciga. When Arciga saw the text, she was scared because of the reference to a "death list" accompanied by a gun emoji, and the fact that Guadalupe knew where Arciga lived. Arciga did not know Guadalupe to own any firearms, but she had seen Guadalupe's uncle (the ex-boyfriend) with a gun in the past. Arciga called the police about 10 minutes after she received the texted screen shot. Arciga testified that she was still afraid when the police arrived, and was still in fear as of May 13, 2019, the day she testified.
Arciga tried to look at Guadalupe's Instagram account the same day she received the text from Espinosa, but was unable to do so because Arciga was blocked from any access to the account. Arciga said that being blocked meant Guadalupe "doesn't want me seeing her stories."
The People filed a petition alleging that Guadalupe was a person who came within the provisions of Welfare and Institutions Code section 602 in that she committed felony criminal threats (Pen. Code, § 422, subd. (a)). The juvenile court found the allegation to be true, and sustained the petition. The court designated Guadalupe a Welfare and Institutions Code section 602 ward, ordered that she be placed at home on probation, and denied her motion to reduce the charge to a misdemeanor.
All unspecified statutory references are to the Penal Code.
This timely appealed followed.
DISCUSSION
To sustain a finding that Guadalupe made a criminal threat in violation of section 422, the People had to show (1) Guadalupe willfully threatened to commit a crime that would result in death or great bodily injury to another person, (2) that Guadalupe made the threat with the specific intent that the statement be taken as a threat, even if there was 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 Arciga a gravity of purpose and an immediate prospect of execution of the threat, (4) that the threat actually caused Arciga to be in sustained fear for her safety or for the safety of her immediate family, and (5) that Arciga's fear was reasonable under the circumstances. (§ 422, subd. (a); In re George T. (2004) 33 Cal.4th 620, 630.)
Guadalupe challenges the sufficiency of the evidence on three of these elements: her specific intent that the statement be taken as a threat, whether her alleged threatening statement was unequivocal, unconditional, immediate and specific; and whether the posting actually caused Arciga to be in sustained fear. As we find insufficient evidence of Guadalupe's specific intent that the posting be conveyed to Arciga, we do not address Guadalupe's other arguments.
A. Standard of Review
The substantial evidence standard of review applies to challenges to the sufficiency of the evidence in a juvenile proceeding involving criminal behavior. (In re M.V. (2014) 225 Cal.App.4th 1495, 1518.) We review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible and of solid value—such that a reasonable trier of fact could find a defendant guilty beyond a reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57.)
B. Insufficiency of Specific Intent Evidence
"Section 422 was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others." (People v. Felix (2001) 92 Cal.App.4th 905, 913.) In other words, section 422 does not punish such things as "mere angry utterances or ranting soliloquies, however violent." (People v. Teal (1998) 61 Cal.App.4th 277, 281.) "Accordingly, where the accused did not personally communicate a threat to the victim, it must be shown that [s]he specifically intended that the threat be conveyed to the victim." (In re Ryan D. (2002) 100 Cal.App.4th 854, 861.) "Where the threat is conveyed through a third party intermediary, the specific intent element of the statute is implicated." (In re David L. (1991) 234 Cal.App.3d 1655, 1659.)
A survey of cases in which the alleged threat was communicated to the victim through a third party illustrates the insufficiency of the evidence against Guadalupe on the necessary element of specific intent. In David L., the victim and a third party were standing near lockers at school when the defendant approached them with a belt wrapped around his fist, pushed the victim against a locker, and swung at the victim. (In re David L., supra, 234 Cal.App.3d at p. 1658.) The victim swung back, knocking the defendant to the ground. (Ibid.) Later, the defendant called the third party and told her he was angry about the incident and to listen, after which she heard a metallic clicking noise. (Ibid.) The defendant told her the sound was a gun and he was going to shoot the victim. (Ibid.) She told the victim about the threat the following day. (Ibid.) Based on the prior assault, at which both the victim and the third party were present, the court found there was sufficient evidence to infer the defendant intended the third party to act as an intermediary and tell the victim about the threat. (Id. at pp. 1659-1660.)
In Ryan D., the defendant turned into his art class a painting showing him shooting a police officer in the head; the officer depicted had recently cited the minor for possession of marijuana. (In re Ryan D., supra, 100 Cal.App.4th at p. 857.) Despite the defendant admitting it was reasonable to expect the officer would see the painting, the court concluded there was insufficient evidence to prove the minor specifically intended the painting be shown to the officer, and thus insufficient evidence the defendant intended the painting to be taken as a threat. (Id. at pp. 863-864.)
In Felix, the defendant told his psychotherapist he wanted to kill the victim, and the therapist told the victim. (People v. Felix, supra, 92 Cal.App.4th at pp. 908, 909.) The court concluded the defendant's statement did not support a criminal threats charge because there was insufficient evidence the defendant intended the threat to be communicated to the victim, even though the defendant specifically said he wanted to kill the victim. (Id. at p. 908.)
Finally, in People v. Roles (2020) 44 Cal.App.5th 935, the defendant and his wife were involved in a contentious family law matter. The defendant's wife and minor child were each represented by separate counsel. (Id. at p. 939.) The defendant left threatening telephone messages with minor's counsel, in which he also threatened his wife's counsel. (Ibid.) The court found insufficient evidence that the defendant intended the minor's counsel to communicate the content of the voice messages left with minor's counsel to wife's counsel, and reversed a criminal threats charge naming wife's counsel as the intended target of the threats. (Id. at p. 945.)
The court affirmed a criminal threats charge naming minor's counsel as the victim. (People v. Roles, supra, 44 Cal.App.5th at pp. 939, 951.)
The facts here more closely resemble Ryan D., Felix, and Roles than David L. In David L. the defendant, the third party, and the victim were all present during an initial incident; the defendant called the third party specifically about that incident the very next day and threatened only the victim. In contrast, in Ryan D., Felix, and Roles, the threat was passed on by an intermediary, but no other facts suggested the defendant's specific intent that the threat be conveyed by the third party to the person threatened.
Here, Guadalupe did not send any message directly to Arciga. While there was acrimony between Arciga and Guadalupe's uncle, there was no evidence of prior conflict between Guadalupe and Arciga other than Arciga unfollowing Guadalupe on Instagram three months before the post at issue because of the uncle's arrest. At the time Guadalupe made her "death list" post in April 2019, Arciga was no longer following Guadalupe on Instagram, and Guadalupe had blocked Arciga from seeing Guadalupe's Instagram account. As Arciga admitted, this blocking meant that Guadalupe specifically did not want Arciga to see what Guadalupe was posting. Guadalupe did not ask anyone (on Instagram or otherwise) to share her post with others in general, or with Arciga in particular. By design, the story was only online for 24 hours. While it may have been reasonable to expect someone might pass the contents of the post onto Arciga, that alone is not sufficient evidence of a specific intent on Guadalupe's part that Arciga be informed of the post's contents. (In re Ryan D., supra, 100 Cal.App.4th at pp. 863-864.) Indeed, the evidence did not even show that Espinosa was following Guadalupe's Instagram account as of April 11. 2019, as opposed to coming across the story unbidden while surfing the internet.
To borrow the words of the Ryan D. court, "although [Guadalupe's post] was intemperate and demonstrated extremely poor judgment, the evidence fails to establish that [Guadalupe] intended to convey a threat to" Arciga. (In re Ryan D., supra, 100 Cal.App.4th at pp. 857-858.) Given the insufficiency of the evidence of specific intent, reversal is required.
DISPOSITION
The jurisdiction and disposition order is reversed.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
ROTHSCHILD, P. J.
BENDIX, J.