Opinion
B202801
10-29-2008
In re C.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.A., Defendant and Appellant.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
INTRODUCTION
The juvenile court sustained petitions filed under Welfare and Institutions Code section 602. The first petition alleged that defendant, appellant and minor C.A. committed one count of criminal threats. The second petition alleged that he committed one count of attempted second degree robbery. C.A. contends on appeal that there is insufficient evidence to support the true findings. We disagree, and we therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. The criminal threat.
Romulo Tapia works with the Los Angeles Police Departments Explorer program. He is a drill instructor at the juvenile programs boot camp. Police officers are present during instruction. As of July 7, 2007 he had been a drill instructor for about one year.
On July 7, 2007, Tapia was working at the boot camp with C.A., who was spending his first day at boot camp. Because C.A. had failed to follow instructions, Tapia ordered him to do push ups. C.A. stood and said, "Florencia Trese," which is the name of a gang. He also said, "`Im going to catch you slipping. Watch when the officer is not around. Im going to beat your ass. [¶] . . . [¶] . . . `Im going to kill you." While making these statements, C.A. was standing a foot or less in front of Tapia, and "somewhat approaching" him. Seeing that C.A. was getting close to Tapia, an officer intervened. The officer took over, and Tapia left.
Tapia felt threatened and scared when C.A. made these statements. Tapia saw C.A. one time after the incident, but Tapia just walked past C.A. without speaking to him. Tapia said at the hearing that he was still afraid.
B. The attempted robbery.
Over one month later, on August 23, 2007, E.R. was in his schools locker room. He was checking messages on his cell phone when C.A. and R.G. walked past him. E.R.s attention was drawn to them because a friend had just told him that somebody asked for the friends cell phone. As C.A. stood about five feet away, R.G. told E.R. to give him the phone if he didnt want to get fucked up. E.R. refused. R.G. put his hand in E.R.s pocket, but E.R. "smacked" his hand away. R.G. punched E.R., who fought back. During this time, C.A. did not do or say anything.
But, when E.R. ran, C.A. ran after him. C.A. asked E.R. why he was running. E.R. ran to school staff, and security guards arrived.
R.G. told a police officer that he wasnt trying to "pocket check" E.R., and that E.R. hit him for no reason. C.A. said E.R. started hitting R.G., and when E.R. ran, C.A. chased him. But later C.A. said he did it because he needed the money.
II. Procedural background.
Two petitions under Welfare and Institutions Code section 602 were filed based on these two incidents. The first petition was filed on July 25, 2007, and it alleged one count of criminal threats (Pen. Code, § 422). The second petition was filed on August 27, 2007, and it alleged one count of attempted second degree robbery (Pen. Code, § 211). The adjudications on the charge of criminal threats and of robbery took place at two separate hearings. Both allegations were found true and the petitions were sustained. The juvenile court reduced the criminal threats offense to a misdemeanor.
On September 17, 2007, C.A. was declared a ward of the court and he was placed home on probation for the misdemeanor criminal threats. The maximum term of confinement was one year. On September 21, 2007, the juvenile court ordered him home on probation for the robbery and set the maximum term of confinement at three years.
DISCUSSION
I. There is sufficient evidence to support the true findings on both counts.
C.A. contends that the evidence was insufficient to support the true findings that he made a criminal threat and aided and abetted an attempted robbery; hence, his due process rights were violated. We find that there was sufficient evidence to support the true findings on both counts.
A. Sufficiency of the evidence standard of review.
We review claims of insufficient evidence to sustain a criminal allegation in a petition under Welfare and Institutions Code section 602 using the same standard as in a criminal case. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) To determine whether the evidence is sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment 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 the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) "We draw all reasonable inferences in support of the judgment. [Citation.]" (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears "`that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. Sufficiency of the evidence of criminal threats.
A defendant may be found guilty of making a criminal threat when there is substantial evidence that (1) the defendant willfully threatened to commit a crime that could result in anothers death or great bodily injury; (2) defendant specifically intended the statement be taken as a threat (notwithstanding that the defendant might not have intended to carry out the threat); (3) the threat, on its face and under the circumstances made, is so unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution; (4) the threat caused the victim to suffer sustained fear for his or her safety; and (5) the fear was reasonable under the circumstances. (Pen. Code, § 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
1. Sustained fear.
C.A. first argues that the record fails to establish that Tapia was in "`sustained fear" for his safety and that the fear was reasonable under the circumstances. (See, e.g., In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140 [a victim must actually be in sustained fear and the sustained fear must be reasonable under the circumstances].) To be "sustained," the victims fear must be more than "momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
To support his argument that Tapias fear was merely momentary, fleeting or transitory, C.A., points out that Tapia was a drill instructor at a juvenile boot camp run by the Los Angeles Police Department. As such, C.A. speculates that Tapia "must have been trained to deal with confrontations of this kind." C.A. relies on In re Alejandro G. (1995) 37 Cal.App.4th 44. In Alejandro G., the minor, using profane language, challenged a police officer to a fight. The court said that to determine whether Penal Code section 415—which concerns using offensive words in public that are designed to provoke an immediate violent reaction—has been violated, courts must consider the totality of the circumstances, including the circumstance that the victim was a "police officer trained and obliged to exercise a higher degree of restraint than the average citizen . . . ." (Alejandro G., at pp. 49-50.)
Alejandro G. does not help C.A. Unlike the victim in Alejandro G., the victim here, Tapia, was not a police officer. He was a drill instructor, albeit at a boot camp for juveniles. The record does not establish what training, if any, Tapia had to deal with threats. Indeed, the presence of police officers at boot camp creates an inference that it is the officers, not the drill instructors, who must deal with threatening situations. In any event, the fact that the victim in Alejandro G. was a police officer trained to deal with threats did not compel the court to find that the evidence was insufficient to support a violation of Penal Code section 415. To the contrary, the court affirmed a judgment finding the minor guilty of violating that section, even though the offensive words there were arguably less egregious (a challenge to a fight) than the words here, namely, a threat to kill Tapia.
C.A. also argues that Tapia could not reasonably have been in sustained fear because police officers were present and, indeed, a police officer immediately intervened. That C.A. might not have been able to act immediately on his threat, given the officers presence, does not lessen the reasonableness of the fear to which Tapia testified. (See, e.g., People v. Franz (2001) 88 Cal.App.4th 1426, 1448-1449 [rejecting argument that there was insufficient evidence to support the immediacy element because defendants threat was made in a police officers presence and because defendant was escorted from the scene].) C.A. not only threatened to hit Tapia, he also threatened to kill him. He buttressed his threats by stating, "Florencia Trese," the name of his gang and by suggesting he would wait until the officers were not around before acting. Tapia knew that C.A. was a gang member. C.A. was not in custody and was free to leave after boot camp.
Next, C.A. speculates that Tapia was not in sustained fear because he did not take action to address the threat. For example, the teacher in In re Ricky T., supra, 87 Cal.App.4th 1132, sent a student who threatened him to the schools office, but the police were not called until the next day. Here, Tapia did not send C.A. away after he was threatened. Instead, C.A. remained at boot camp for about 30 minutes more, leaving 10 minutes early on his own accord. But the record shows that an officer immediately intervened, and Tapia and C.A. thereafter had no interaction. C.A. also points out he was not detained until three weeks after the incident. The record, however, does not reveal why there was a delay in detaining C.A., and there is certainly nothing in the record to suggest the delay was somehow attributable to a failure on Tapias part to report the incident.
C.A. lastly points to the lack of a history of animosity between him and Tapia as evidence Tapia could not have been in sustained fear. Certainly, a history of animosity is a factor to consider. (People v. Gaut (2002) 95 Cal.App.4th 1425.) It is not, however, the only factor or necessarily a definitive one. That this was a single incident between two people who had never before met does not compel a conclusion there is insufficient evidence to support the sustained fear element.
2. Immediacy of the threat.
For C.A. to be guilty of making a criminal threat, the threat, on its face and under the circumstances made, had to be so unequivocal, unconditional, immediate, and specific as to convey to Tapia a gravity of purpose and immediate prospect of execution. But the "`unconditional" threat required by Penal Code section 422 is not "absolute." (People v. Bolin, supra, 18 Cal.4th at p. 339.) Rather, the word "so" in section 422 indicates that unequivocality, unconditionality, immediacy and specificity "`must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim. [Citation.]" (18 Cal.4th at p. 340.) We evaluate the totality of the circumstances to determine whether the communication conveyed to the victim a gravity of purpose and an immediate prospect of execution of the threat. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859-863; People v. Butler (2000) 85 Cal.App.4th 745, 753-754; In re Ricky T., supra, 87 Cal.App.4th at p. 1136 [threats are judged in their context].)
C.A. again relies on the officers presence to refute the "immediacy" of execution of the threat. The record shows that C.A. was doing push ups. Angered, he stood, threatened Tapia, and took a step toward Tapia. He told Tapia to "watch when the officer" was not around. That an officer was there and timely intervened and averted any further confrontation does not diminish the immediacy of the threat.
C.A. also characterizes the incident as a youthful outburst made under stressful circumstances—being ordered to do push ups in the mud. He likens the threat to the ones in In re George T. (2004) 33 Cal.4th 620. George T. gave two classmates poems, one of which stated, in part, "`I am Dark, Destructive, & Dangerous. I slap on my face of happiness but inside I am evil!! For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz Im BACK!!" (Id. at p. 624.) The court found that the poem was "ambiguous and plainly equivocal" and that the surrounding circumstances surrounding distribution of the poem failed to show "it was sufficiently unequivocal to convey" an immediate prospect George T. would bring guns to school and shoot students. (Id. at pp. 636, 638.)
In contrast to the poem in In re George T., there was nothing ambiguous or equivocal about C.A.s threats to Tapia. C.A. said he wanted to fight Tapia, and he emphasized his willingness to fight by standing and moving closer to Tapia. He also threatened to kill Tapia and underscored the threat by claiming his gang, Florencia Trese, and by warning Tapia to watch out when the officers were not looking. Given the specificity of the threat and the surrounding circumstances, C.A. cannot claim the same poetic license afforded to the minor in In re George T.
C. Sufficiency of the evidence of the attempted robbery.
To prove robbery, the People must establish that the defendant (1) took property from the victims person or immediate presence, (2) by means of force or fear, and (3) with the specific intent to permanently deprive the victim of the property. (Pen. Code, § 211; People v. Young (2005) 34 Cal.4th 1149, 1176-1177.) "A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164; see also Pen. Code, § 31 [all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet its commission are principals in any crime so committed].) Among factors which may be considered in determining aiding and abetting are presence at the crime scene, companionship and conduct before and after the offense. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.)
C.A. argues that the evidence shows he was merely present at the attempted robbery: He stood nearby while R.G. tried to take the cell phone from the victim. To the contrary, the evidence shows that C.A. did more than just stand there. Before C.A. and R.G. approached the victim, the victims friend mentioned that two people had approached him and asked for his cell phone. This evidence raises the reasonable inference that C.A. did have knowledge of R.G.s unlawful purpose. C.A.s conduct after R.G. tried and failed to take the victims cell phone also supports the conclusion that C.A. aided and abetted the robbery: When the victim fled, C.A. ran after him. And although the juvenile court chose to give the statement no weight, the record shows that C.A. told an officer that he "did it for the money." This evidence, even if we disregard C.A.s incriminating statement, is more than sufficient to support the true finding on the attempted robbery count.
DISPOSITION
The judgment is affirmed.
We concur:
CROSKEY, Acting P. J.
KITCHING, J. --------------- Notes: C.A. testified that Tapia ordered him to do pushups. Tapia then kicked mud in his face and called him a flower, wetback and stupid Latino. C.A. stood, asked Tapia what was his problem, and challenged him to a fight. An officer then intervened, and C.A. went back to exercising. C.A. denied threatening Tapia and mentioning Florencia Trese. Tapia denied he called C.A. any names.