Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PDL2005-0057
NICHOLSON, J.
Following a joint jurisdictional hearing for minors E.J. (hereafter appellant) and J.H. (hereafter Chris), the juvenile court sustained charges against each minor of conspiracy to commit murder (Pen. Code, §§ 182, subd. (a)(1), 187) and, as to appellant only, a charge of making a criminal threat (§ 422). Each minor was declared a ward of the court and ordered to serve time in juvenile hall to be followed by formal probation in the home of his parents.
Hereafter, references to undesignated sections are to the Penal Code.
Appellant contends (1) the evidence is insufficient to support either charge; (2) remand is required for the juvenile court to declare whether the offense of making a criminal threat was a felony or misdemeanor; and (3) the court violated his federal and state constitutional rights when, as a condition of probation, it ordered him not to associate with anyone on probation. We shall affirm the sustaining of the conspiracy charge, reverse the criminal threat finding, and modify the probationary condition.
FACTS
Daniel H. (age 16) testified that in March 2005 he was a high school classmate of both appellant (age 15) and Chris (age 16), and “hung out” with both of them.
On March 29, 2005, prior to first period, Daniel H. was talking with Chris when appellant walked up with Danielle G. While Daniel H. spoke with Danielle G., Chris and appellant had a separate conversation about 30 feet away. Daniel H. overheard appellant and Chris talking about Chris having gone to appellant’s house for a few hours during the spring break. Just before the bell rang for first period, Daniel H. heard appellant, in a normal voice, say the word “Columbine.” Appellant told Chris that they would arm themselves with guns and, starting in the lower quad, shoot other students and then meet in the upper quad where they would kill each other. Daniel also heard “some of this discussion during lunch.”
During cross-examination and further redirect examination, Daniel H. attempted to retreat by suggesting the only statement he actually heard appellant say prior to first period was, “I looked up Columbine over spring break.” Chris, who seemed like he was not really paying attention, nodded his head and sarcastically responded, “[L]ike yeah, whatever, dude.” Daniel H. tried to muddle, if not further retreat, from his previous testimony in which he sketched out a morning conversation between appellant and Chris, focused on shooting and, instead, in which he sought to sketch out an alternative, lunch break conversation, although still about shooting students and, additionally, about blowing up buildings.
Daniel H. testified that during lunchtime he saw appellant remove a map of the school from his backpack and, with Danielle G. present, talk to Chris about blowing up buildings with explosives. Chris responded sarcastically, “[Y]eah, with C4 explosives.” Appellant also suggested they use “grenades” to blow up the “C” building.
Daniel W., who was 17 years old at the time of the jurisdictional hearing, testified that on the day in question, when he and appellant were in their first period study hall, appellant came up to Daniel W. and asked, “Do you want to die?” Daniel W. replied, “No. Why would you ask me that?” Appellant said, “I’m planning a Columbine” at the school. Daniel W. was “shocked” and sat down. Appellant then said, “I was just wondering if you want to be on my hit list?” Daniel W. replied, “No, I don’t want to die.”
Later, during the same study hall session, Daniel W. and appellant were seated next to each other at computers. Daniel W. noticed that appellant was viewing two Web sites -- one called Vampire Freaks, which shows a lot of violence, and the other one on Columbine. The teacher, Joyce Shinn, asked what “everyone was doing,” and appellant replied that he was looking at the Columbine Web site. Shinn confirmed Daniel W.’s testimony, testifying that she saw several boys standing around appellant and asked him what he was doing. Appellant said he was looking at the guns on the Columbine Web site. Shinn told appellant to get off the Internet and get back to whatever he was working on.
During the fourth period that day, appellant told classmate Travis P. (age 15) that he was going to “shoot up the school,” that a friend named Chris was going to help him, that he wanted to kill as many students as possible before the police arrived, and that he wanted Travis P. to help by keeping “the cops off of him.” Appellant wanted the police to kill him, but if they failed then he would do it himself. Appellant showed Travis P. a map of his plans. (Hereafter, “the map.”) Travis P. did not believe appellant was joking and, at lunchtime, reported the matter to Officer John Jacobs, the school resource officer, who in turn informed the principal.
Also during fourth period, appellant told classmate Andrew P. that he was going to do what they did at Columbine -- bring guns to school and kill students and teachers. Appellant asked Andrew P. to help and showed him a map which showed where Officer Jacobs and people in the administration office would be.
After lunchtime, Officer Jacobs interviewed appellant at the school’s main office. Jacobs told appellant that he had information that appellant had brought a gun to school and was going to shoot students and wanted to know if others were involved. Appellant said he did not have a gun and the only other person involved was Chris.
Jacobs then interviewed Chris, asking him about a conversation Chris and appellant had during the lunch hour. Chris said that he and appellant had talked about Columbine and ways of getting into the school if they wanted to hurt students. Chris said that while he did not like the students, he would not actually shoot them. Chris said that appellant told him that he would bring a gun to school and shoot students, and that appellant had talked about Columbine and what the students felt when going through the shooting there. Chris told appellant the idea was stupid and that he did not believe appellant would have gone through with it.
Still, that same day, Jacobs interviewed appellant again, confronting him with the additional information provided by Chris. Appellant initially denied knowledge of the map, but after further questioning admitted to having it. Appellant admitted looking at the Columbine Web site during study hall and several times during the last couple of weeks. Appellant said he looked at the Columbine Web site because he wanted to know how the students felt during the shooting. Appellant also told Jacobs the entire thing was a joke and he would not have brought bombs or guns to school.
Appellant was searched that afternoon and the map he had been displaying was found in his backpack along with a journal containing various writings regarding death and suicide. In appellant’s wallet was a scrap of paper reminding appellant to “say goodbyes to online friends,” and on the other side of the paper it said, “eamty [empty] dead broken shattered, why am I alive[?]”
Chris was also searched that afternoon. In his backpack were writings regarding killing others and wanting to die.
The following day, March 30, 2005, search warrants for both boys’ homes were executed. In appellant’s room were several writings relating to dying and suicide. In a closet in the master bedroom was a bolt-action .22 caliber rifle; however, no ammunition for the rifle was found in the home. Computers and computer hard drives that were sitting on the dining room table were seized. A plastic bag containing 9mm. and .45 caliber ammunition was found, but no guns corresponding to that ammunition were located.
At Chris’s home, officers found a Winchester .22 caliber lever-action rifle and a BB or pellet gun in the master bedroom closet, a closet which also connected to Chris’s room. No ammunition which would fit either gun was found. On the floor in the same closet were three boxes of M-5000 firecrackers. Also found was a notebook containing writings, including a drawing of a lunchroom with tables and a fire pit, the word “fire” on an undesignated but enclosed area, and a drawing of “satan” decapitating “god.”
On April 6, 2005, Detective Kim Nida conducted a four-hour interview with Chris. Chris said that he had been thinking of suicide since the sixth grade, that he gets teased by other students who call him “retard” and “stupid,” and that appellant shared the same feelings. Chris had written the notes before spring break and had shared the notes with appellant.
This tape was marked exhibit 16, but was neither admitted into evidence nor viewed by the court.
Chris initially denied knowing of the map drawn by appellant, but eventually admitted so knowing. Chris said that at lunchtime he and appellant stood by the “E” building and pointed out how they would move and where they would go. They would enter the campus at different locations, meet in the middle and kill each other or themselves with pistols and rifles. As to the “M-5000s,” Chris said a friend had given them to him, they had set some of them off in water, and they were weak, making only a ripple in the water. When asked whether he would actually carry through and shoot people, Chris replied that he would not.
Chris testified that when he first saw appellant before class on the morning of March 29, 2005, they were by the “E” building and appellant said that he had gone on the Columbine Web site during spring break. Appellant told Chris what had occurred at Columbine and that was the only discussion they had regarding Columbine before they went to class. After about five to 10 minutes of conversation appellant went to his first period class and Chris, who did not have a first period class, just stayed in the area where they had been talking.
Although there was no agreement to meet at lunch, the next time Chris saw appellant was at lunchtime, by the “E” building where Chris usually ate lunch. With about 10 to 15 people in the area, appellant pulled the map from his backpack and showed it to Chris. The two talked about where they would come from and about bringing guns to school. Prior to lunchtime the two had never discussed such topics. To Chris, the discussion was “just talk and joking about it.” He and appellant never agreed to shoot or kill people, and he, Chris, had no intention of doing so.
Appellant testified, admitting having met Chris prior to school the morning of March 29, 2005, and telling Chris and Daniel H. about the Columbine Web site. Appellant also admitted drawing the map during his fourth period class because he was still thinking about Columbine. The map was of the upper quad area of the high school, including the gym. At lunchtime appellant showed the map to Chris, but was not trying to get him to agree upon a plan to come to school and shoot people. Chris had not known that appellant was going to draw the map and prior to lunchtime he and Chris had never discussed a plan to attack the school.
Appellant denied asking Travis P. to join a plan to attack the school or of threatening him in any way. Likewise, appellant never asked Daniel W. if he wanted to join the plan and he denied asking Daniel W. whether he “want[ed] to die” or threatening to put him on a hit list. Appellant wrote poems about death and suicide because he was “[j]ust bored, writing whatever comes to mind.” Appellant also denied being angry with anyone or wanting to kill anyone at the school.
DISCUSSION
I
Appellant contends the evidence is insufficient to support either the charge of conspiracy to commit murder or the making of a criminal threat. The People, rather than seeing appellant’s contention as a straight challenge to the sufficiency of the evidence to support the conspiracy charge, claim appellant’s argument reduces to one that inconsistent verdicts cannot stand in conspiracy cases. That is to say, if Chris was acquitted of the conspiracy charge, as appellant claims he should have been, then to avoid inconsistent verdicts appellant must likewise be acquitted. For reasons to follow we conclude the People have misanalyzed appellant’s first contention, and that the evidence is sufficient to support the conspiracy count but not the criminal threat charge.
The rules governing appellate review are well settled. “When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the [accused] guilty beyond a reasonable doubt.” (People v. Green (1980) 27 Cal.3d 1, 55; In re Frederick G. (1979) 96 Cal.App.3d 353, 362-365.)
A. Conspiracy to Commit Murder
“A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy.” (People v. Morante (1999) 20 Cal.4th, 403, 416.) “No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement . . .” (§ 184.) The agreement may be shown by circumstantial evidence, such as the conduct of the parties in carrying out an activity which constitutes the targeted crime. (People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1417.)
Appellant does not claim, nor could he reasonably do so, that the evidence is insufficient to establish that he hatched a plan to kill students at the school and attempted to get Chris to join him. Nor does he claim the evidence was insufficient to show an overt act in furtherance of the conspiracy. Instead, appellant limits his argument to a lack of substantial evidence showing that Chris entered into an agreement to participate in appellant’s plan to kill other students.
Specifically, appellant argues: “The evidence against [Chris] was weak from its inception. [Chris’s] involvement in this case consisted of two short conversations in which he contributed almost nothing to appellant’s bravado talk of attacking the school. He was present before school started where appellant talked to [Chris] and others about bringing guns to school and doing a Columbine-style shooting. [Chris] apparently contributed nothing to this conversation. After lunch, appellant showed [Chris] a map he had drawn of the school. Over the next few minutes, the two talked about Columbine, using guns, how ‘they would move and where they would go,’ and about killing themselves in the end. When appellant talked about blowing up the school, [Chris] suggested using C4. That, in a nutshell, is the end of [Chris’s] participation.” (Internal citations omitted.)
While that evidence alone is sufficient, even as appellant interprets it, appellant’s argument simply fails to consider other evidence adduced at the jurisdictional hearing regarding Chris’s involvement in the plot.
Chris told Detective Nida that he disliked school because his classmates frequently ridiculed him, that the teasing was getting worse, that appellant had been similarly treated, and both he and appellant shared the same feelings. For an extended period before March 29, 2005, both boys had entertained thoughts of death, killing and suicide and had put these thoughts in writings and drawings. Chris also admitted to Nida that he had written such notes before spring break and had shared the notes and his thoughts with appellant, meaning they had discussed such matters prior to speaking with each other the morning of March 29, 2005.
Chris testified that when he saw appellant before class started on March 29, 2005, appellant told him that he had gone on the Columbine Web site and told him what had occurred at Columbine. A few minutes before the bell rang for the start of first period, Daniel H., while talking with Danielle G. approximately 30 feet from where Chris and appellant were speaking, heard appellant say, “I looked up Columbine over spring break” and Chris nodded his head in response. After the bell rang, appellant left for class and Chris did not see him again until lunchtime.
At lunchtime, appellant showed Chris the map he claimed to have drawn in fourth period. The map shows an area marked lower and the upper quads of the high school, including in the upper quad the cafeteria, the gym and an undesignated building. The word “clear” is written in several areas on the map. In the cafeteria building is written “plant bomb,” in the gym building is written “blow up,” and in the undesignated building is written “shoot it up.” Also in the upper quad is a circled area next to which is the phrase “end it here.”
Chris told Detective Nida that, after looking at the map, he and appellant stood by the “E” building and detailed how they would move and where they would go. Chris would enter the campus on a side road and appellant would enter from a different location. They would meet in the middle and end it either by killing themselves or having the police kill them. The attack would be made with pistols and rifles.
In sum, the evidence presents a classic profile of students who commit Columbine-type shootings. Both appellant and Chris disliked school and their classmates because, they asserted, they were frequently ridiculed by the latter, thus providing a common motive for an attack. Both boys were preoccupied with death, suicide and killing others, feelings which they had reduced to writings and drawings and shared with each other. That the two actually intended to commit such an attack was substantially supported by Daniel H.’s testimony, which the court was entitled to and impliedly did accept notwithstanding Daniel H.’s later attempt to retreat from his testimony, that prior to first period he overheard Chris and appellant speaking of arming themselves, shooting students, and then shooting themselves. Indeed, when appellant spoke of Columbine, Chris nodded his head, which was conduct from which the court could infer Chris’s knowledge and assent as to that subject. Further support for their having agreed to commit the assault was shown by appellant’s having reduced the plan to a map which at lunchtime the two used to enact how and from where they would commit the shootings. Moreover, both boys had immediate access to rifles and needed only ammunition to carry out such a plan. Finally, although both boys denied being serious about the plot, the court was not required to accept such self-serving statements, particularly in light of their having been made only after they were called to account for their actions.
Reasonable inferences drawn from the foregoing evidence include, as the juvenile court found generally, that appellant and Chris, during a spring break visit at appellant’s home, discussed and agreed to arm themselves and to commit a Columbine-style campus massacre at their high school, later talked about their plans at school on the morning of March 29, 2005, and, at lunch the same day, reviewed a tactical map of the campus, drawn by appellant. Reasonable inferences from the evidence include, as the juvenile court found specifically, support for all four overt acts alleged in the petition. Even so, one overt act by but one coconspirator suffices to satisfy this requirement of the law. In this case, appellant’s overt act of drawing the map so quickly after the morning conversation and the same day discussing it with Chris further reinforces already sufficient evidence of conspiracy to reprise the Columbine massacre. Consequently, substantial evidence supports the court’s finding of an agreement to commit murder.
Now as to the People’s position. The People interpret appellant’s argument as one based upon the “notion that consistent verdicts are required in joint conspiracy trials,” a position which the People note was repudiated in People v. Palmer (2001) 24 Cal.4th 856 (Palmer). The People then conclude, “Unfortunately, appellant’s argument is premised on bad law and overruled cases.” Contrary to the People’s assertion, appellant’s citations to the law and cases are correct. What is “unfortunate” is that, because the People have misanalyzed appellant’s simple, straightforward insufficiency of the evidence claim, they have not addressed his argument and, therefore, have been of no assistance to this court in this regard.
Subsequently, the People paraphrase appellant’s argument and conclusion as follows: “(1) appellant impliedly concedes that the quantum of evidence proffered on the conspiracy charge was sufficient as to him; (2) nevertheless, he argues that -- notwithstanding the juvenile court’s true finding as to his co-participant’s conspiracy charge -- the evidence against his co-participant was insufficient to warrant that true finding; and (3) based on appellant’s belief that if the only other conspirator is acquitted, the conspiracy charge against the remaining conspirator cannot stand, appellant submits that his true finding must therefore be stricken.” (Italics in original.)
In Palmer, Palmer (age 15) and codefendant Price (age 29), went on a crime spree one day in December. In one incident, Price was driving and Palmer was his passenger, when Price chased down a Ford driven by Richard Humphries. While Humphries was attempting to get away from Price, Palmer fired two shots, one of which grazed Humphries’ scalp. Humphries escaped by driving on the wrong side of a divided highway. (Palmer, supra, 24 Cal.4th at pp. 858-859.)
In a second incident, Price sideswiped a BMW driven by Judith Showalter and both vehicles stopped. While Price was speaking with Showalter, Palmer opened her car door, said “take this, bitch,” and shot her in the head. Showalter slumped over and played dead while Price and Palmer took her pager and purse. One of them then pulled her out of the BMW; they left her on ground as they drove off in her car. Showalter survived, although she suffered major injuries. (Palmer, supra, 24 Cal.4th at p. 859.)
Price and Palmer were each charged with attempted murder of Humphries and conspiracy to murder Showalter. Because Palmer and Price had each made statements absolving themselves and incriminating each other, the defendants were jointly tried but to separate juries. Although “both juries heard essentially the same evidence” (Price, supra, at p. 859), Price’s jury found him guilty of both offenses while Palmer’s jury found him guilty of the attempted murder and acquitted him of the conspiracy charge. (Id. at pp. 859-860.)
On review to the California Supreme Court, Price invoked the “so-called rule of consistency -- that the acquittal of all alleged coconspirators but one requires acquittal of the remaining alleged conspirator . . . .” (Palmer, supra, 24 Cal.4th at p. 858.) Specifically, Price argued that, because it takes at least two to conspire and because the only coconspirator (Palmer) had been acquitted of the conspiracy, his conviction for the same conspiracy must be reversed because it resulted in inconsistent verdicts. (Palmer, supra, 24 Cal.4th at p. 860.)
The Supreme Court rejected Price’s contention, concluding: “[T]he rule of consistency [of verdicts] is a vestige of the past with no continuing validity. Many reasons may explain apparently inconsistent verdicts: lenience, compromise, differing evidence as to different defendants, or, possibly, that two juries simply viewed similar evidence differently. If substantial evidence supports a jury verdict as to one defendant, that verdict may stand despite an apparently inconsistent verdict as to another defendant.” (Palmer, supra, 24 Cal.4th at p. 858.)
Drawing the above conclusion, Palmer was careful to distinguish between challenges to inconsistent verdicts and challenges to the sufficiency of the evidence to support the verdicts. As an example, Palmer cited Hartzel v. United States (1944) 322 U.S. 680 [88 L.Ed. 1534]. In Hartzel, three defendants were tried together and convicted of conspiracy; however, the trial court set aside two of the defendants’ conspiracy convictions because of insufficient evidence. The United States Supreme Court stated that the codefendants “‘were the only co-conspirators of petitioner named in the indictment and the setting aside of their convictions makes it impossible to sustain petitioner’s conviction upon the basis of . . . the conspiracy count.’” (Palmer, supra, 24 Cal.4th at p. 862, quoting Hartzel v. United States, supra, 322 U.S. at p. 682, fn. 3.) Palmer concluded that, “Fairly read, [Hartzel] simply involved insufficient evidence rather than a silent invocation of the rule of consistency.” (Palmer, supra, 24 Cal.4th at p. 862.)
Palmer also observed that in United States v. Powell (1984) 469 U.S. 57 [83 L.Ed.2d 461], the court had noted that review of sufficiency of the evidence challenges “‘should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt.’” (Palmer, supra, 24 Cal.4th at pp. 863-864, quoting United States v. Powell, supra, at p. 67.)
Here, simply put, appellant’s argument is that conspiracy requires an agreement of at least two people; where only two people are involved and the evidence is insufficient to show that one of the two entered into the alleged agreement, there could be no agreement; and no agreement means no proof of a conspiracy.
As to the People’s claim that appellant has relied on a case overruled in Palmer, this too is error. The case at issue is People v. James (1961) 189 Cal.App.2d 14. Appellant cited James for the proposition that a person cannot conspire alone, i.e., it takes at least two to form a conspiracy. It is true that Palmer overruled James, but not on the point cited by appellant. (See Palmer, supra, 24 Cal.4th at p. 867, overruling James to the extent it was inconsistent with Palmer’s rejection of the rule of inconsistent verdicts.) Indeed, Palmer observed that the statement in James “‘that one may not conspire with himself’” is an “‘irrefutable proposition.’” (Palmer, supra, 24 Cal.4th at p. 864.) Consequently, the People’s position was not well taken.
B. Making of a Criminal Threat
Appellant contends the evidence is insufficient to support the finding he made a criminal threat against Daniel W., a violation of section 422. We agree.
A violation of section 422 expressly requires, inter alia, that the threatened person “reasonably . . . be in sustained fear for his or her own safety or for his or her immediate family’s safety.” For purposes of section 422, “sustained fear” means fear over a period of time “‘that extends beyond what is momentary, fleeting, or transitory.’” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140, quoting People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Section 422 provides: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
For example, in Ricky T., a 16-year-old student became angry with a teacher who opened a classroom door and hit him. (In re Ricky T., supra, 87 Cal.App.3d at p. 1135.) The student cursed at the teacher and told him, “I’m going to kick your ass.” (Id. at pp. 1135-1136.) The student was sent to the office and later was found to have committed a violation of section 422. (Id. at p. 1135.)
The appellate court reversed, finding the evidence failed to establish the teacher was in “sustained fear” because the only evidence of fear was the teacher having told a police officer the next day that he had “felt threatened” when he ordered the student to go to the office. (In re Ricky T., supra, 87 Cal.App.4th at p. 1140.) Since the teacher’s fear “did not exist beyond the moments of the encounter,” it did not constitute the condition of “sustained fear” as contemplated by section 422. (In re Ricky T., supra, 87 Cal.App.4th at p. 1140.)
Similar circumstances obtain here. Daniel W. testified that during the first period class appellant asked him, “Do you want to die?” Daniel W. replied, “No. Why would you ask me that?” Appellant said, “I’m planning a Columbine.” After Daniel W. sat down, appellant said to him, “I was just wondering if you want to be on my hit list?” Daniel W. responded, “No. I don’t want to die.” Daniel W. also observed the minor looking on the Web site at “Vampire Freaks,” showing “guys blowing their head off and like a Darth Vadar type person.”
When testifying, Daniel W. was asked if appellant’s comments caused him “concern,” and he replied, “Yes.” Daniel W. couldn’t have been too concerned from appellant’s “threat,” because he neither immediately reported the threat to the teacher or to anyone else nor did he leave the classroom. Instead he waited until that night when he told his father. And neither Daniel W. nor his father was concerned enough to report the matter to the police that night. Nor did the threat deter Daniel W. from returning to school the next day where, at some unspecified time, he related the incident to someone who, in turn, told him to go the office and report it. Thus, like the teacher in Ricky T., any fear suffered by Daniel W. because of appellant’s threat was “fleeting” and was inconsistent with a finding of “sustained fear” as that term is used in section 422. Hence, we shall reverse the finding and order the charge dismissed.
II
Appellant contends that reversal of the conspiracy charge is required because the juvenile court “explicitly found that neither minor intended to actually carry out the murder plan,” thereby precluding the necessary finding the appellant and Chris had the specific intent to commit murder. The record does not support the assertion.
As previously noted, “[a] conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of [the target] offense . . . .” (People v. Morante, supra, 20 Cal.4th at p. 416.)
In support of his contention, appellant relies on two comments by the court made after the court had found “beyond a reasonable doubt” that the evidence had proven the charge of conspiracy to commit murder. The comments are: “I expect that when push comes to shove, these young men probably would not have carried it out, but that’s not a factor in making my decision about whether the conspiracy has been proved beyond a reasonable doubt” and “[t]hey may not have carried it out, you know, it may have just been a plan that would never have come to fruition, but there you have it.”
According to appellant, these comments by the court “made it clear in its ruling that it did not believe that the minors would have carried out the murders of their classmates or others at the school,” that is to say, neither minor had the required specific intent to commit murder. We do not so understand the court’s comments.
“[T]he crime of conspiracy is complete with the agreement and an overt act, and no subsequent action can exonerate the conspirator of that crime.” (People v. Sconce (1991) 228 Cal.App.3d 693, 702.) Here, prior to making the cited comments, the court had already found beyond a reasonable doubt that appellant and Chris had a entered into an agreement to commit murder, that they had intended to commit murder, and that they committed an overt act in furtherance of the agreement. The court’s doubt that they would have carried out the murders when, at a later time, it actually came down to gunning down their classmates and teachers had no bearing on whether the crime of conspiracy had already been completed. Consequently, appellant’s contention is rejected.
III
Appellant contends that remand is necessary for the court to declare whether the section 422 violation is a felony or a misdemeanor, as required by Welfare and Institutions Code section 702. Since we are reversing the finding of this charge and ordering it dismissed, the contention is moot.
IV
Appellant contends the juvenile court violated his federal and state constitutional rights when it imposed a constitutionally vague and overbroad condition of probation that he “have no association with [Chris] or anyone on probation.” He is correct.
In In re Sheena K. (2007) 40 Cal.4th 875, filed after the filings of the briefs herein, the California Supreme Court held that a probationary condition prohibiting the probationer from associating with anyone who was a member of a specified class of persons, without a requirement that the probationer know the person was a member of the class, was constitutionally vague (id. at pp. 889-892); that because such conditions present a pure question of law, a probationer’s failure to object to its imposition does not forfeit the issue for appeal (id. at pp. 880-889); and that an acceptable remedy when such a condition is challenged on appeal is for the appellate court to insert the knowledge requirement (id. at p. 892).
The precise condition in In re Sheena K. was that she “not associate with anyone disapproved of by probation.” (Id. at p. 878.)
Since the condition imposed upon appellant is for constitutional purposes indistinguishable from that of In re Sheena K., we shall insert the knowledge requirement.
DISPOSITION
The juvenile court’s sustaining of the charge of making a criminal threat in violation of section 422 is reversed and that charge is dismissed. The juvenile court’s order prohibiting appellant from associating with anyone on probation is amended to read “[insert appellant’s full name] is to have no association with [insert co-minor J.H.’s full name] or anyone he knows to be on probation.” The juvenile court is directed to amend its records to reflect the foregoing changes and to forward the appropriate documents to appellant and the probation department. In all other respects, the judgment is affirmed.
We concur: BLEASE, Acting P.J., CANTIL-SAKAUYE, J.