Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Ct. No. NJ24980, John C. Lawson, II, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
The juvenile court sustained a petition charging that appellant O.R. made criminal threats in furtherance of gang activity. Appellant challenges the juvenile court’s determinations regarding the petition; in addition, he contends that a condition imposed on his probation is constitutionally infirm. We reject these contentions, and affirm.
RELEVANT PROCEDURAL BACKGROUND
On September 23, 2009, a petition was filed under Welfare and Institutions Code section 602, charging appellant with making criminal threats (Pen. Code, § 422). The petition further alleged that appellant committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(B)). On October 16, 2009, the juvenile court sustained the petition and found the gang allegation to be true. Appellant was declared a ward of the court and placed in juvenile camp for a period not to exceed eight years.
All further statutory citations are to the Penal Code.
FACTS
A. Prosecution Evidence
Yvonne Hernandez was the principal witness to the incident underlying the charge against appellant, which occurred on September 21, 2009. Prior to this date, Hernandez and her family resided near appellant, who belongs to a group known as “CTE, ” which Hernandez characterized as a “tagging crew.” Appellant’s nickname was “Chucky.” Appellant often stood in front of his apartment building with his associates.
In July 2009, Hernandez looked through her kitchen window and saw appellant and his associates approaching her husband and son. She ran outside and discovered appellant swinging his skateboard at her son. Accompanying appellant was his brother, whom Hernandez knew as “Kosmo, ” and another person nicknamed “Intro.” When Hernandez said that she intended to call the police, appellant and his associates retreated.
In August 2009, Hernandez’s son was arrested and charged with the attempted murder of Intro. At the suggestion of the police, Hernandez and her family moved out of their residence to avoid potential retaliation by CTE members. At some point after the arrest, Hernandez saw Intro and appellant in an alley. The handle of a gun was visible above appellant’s waistband. When Hernandez’s husband returned to their former apartment to pick up their belongings, he encountered Intro’s wife or girlfriend, who said that there was a “green light[]” against Hernandez’s family.
Hernandez believed her son to be a gang member, but denied that she belonged to a gang.
On September 21, 2009, Hernandez stopped her car at a red light. According to Hernandez, while she waited at the light, appellant walked passed her in the crosswalk, accompanied by Kosmo and a person she knew as “Arturo.” When appellant saw Hernandez, he directed gang signs at her and raised his middle finger. As he did so, he said, “You guys are gonna get it. You guys are green-lighted.” Hernandez understood this to mean that she was going to be killed, and regarded it as a serious threat. As she drove away, she saw appellant and his companions looking at her and laughing.
Long Beach Police Officer Sean Magee, a gang expert, provided testimony about the CTE crew. According to Magee, “CTE” abbreviates several phrases used in connection with the crew, including “crazier than ever.” Appellant belonged to the CTE crew, as did Kosmo, Arturo, and Intro. Because the CTE crew engages in violent and gun-related crimes in addition to vandalism, Magee characterized it as a hybrid “tag-banger” group. Magee opined that the crew constituted a criminal street gang.
Magee further testified that Hernandez’s son belonged to a rival tag-banger group known as the “Latin Thugs.” The incident underlying the arrest of Hernandez’s son for attempted murder aggravated the hostility between the groups, and led the CTE crew to “green light[]” Hernandez and her family. According to Magee, when a gang or crew member says, “you’re green-lighted, ” the statement is a threat: it means that “you’re good to be killed” and that someone in the gang or crew will “take you out in some way.” He opined that appellant’s threat to Hernandez was issued with the specific intent to promote, further, or assist the CTE crew.
B. Defense Evidence
Alfredo R., appellant’s brother, denied that he belonged to the CTE crew, but acknowledged that his nickname is “Kosmo.” According to Alfredo, on September 21, 2009, he observed no remarks or gestures by appellant to Hernandez when he and appellant crossed the street.
DISCUSSION
Appellant contends (1) that there is insufficient evidence to support the sustained petition for making a criminal threat and (2) that the juvenile court imposed a constitutionally infirm probation condition. For the reasons explained below, we reject these contentions.
A. Criminal Threat
Appellant contends that the sustained petition for making a criminal threat under section 422 fails for want of substantial evidence. He argues there is insufficient evidence that his remarks to Hernandez on September 21, 2009 threatened “immediate[] and specific” harm to her, within the meaning of section 422. We disagree.
Generally, “‘[t]he proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
To prove the offense of making a criminal threat, as defined in section 422, the prosecution is obliged to establish five elements: “(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. [Citation.]” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Section 422 provides in pertinent part that a criminal threat is made by a 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, ... is to be taken as a threat, even if there is no intent of actually carrying it out, [and] 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.”
Here, appellant contends that there is insufficient evidence to establish elements (1) and (3) because appellant’s remarks did not specify how, when, or by whom Hernandez would be killed. He argues that the prosecution failed to show that his remarks were a threat, rather than a warning, for purposes of element (1). In addition, he maintains that even if his remarks constituted a threat, the prosecution did not show that the threat was “so... immediate[] and specific as to convey... a gravity of purpose and an immediate prospect of execution, ” for purposes of element (3) (§ 422).
Regarding element (1), whether a remark constitutes a threat under section 422 “must be gleaned from the words and all of the surrounding circumstances.” (People v. Martinez (1997) 53 Cal.App.4th 1212, 1218.) Thus, “[e]ven an ambiguous statement may be a basis for a violation of section 422.” (People v. Butler (2000) 85 Cal.App.4th 745, 753-755.) Furthermore, the fact that the threat might be carried out by a third party, rather than the person issuing the threat, does not remove it from the scope of section 422. (In re David L. (1991) 234 Cal.App.3d 1655, 1659.)
Regarding element (3), the terms “‘unequivocal, ’” “‘unconditional, ’” “‘immediate, ’” and “‘specific, ’” as used in the statement of the element, do not impose unqualified requirements on threats actionable under section 422. (People v. Bolin (1998) 18 Cal.4th 297, 337-340.) As our Supreme Court has explained, “‘unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.’” (Ibid., quoting People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157.) Thus, a threat may satisfy element (3) even though the threatener lacks the immediate ability to carry it out, and the threat does not specify the precise time and manner of its implementation. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1432 [defendant’s threat to kill woman satisfied element (3), even though he made threat while in jail, in view of his history of abusive conduct toward the woman]; People v. Mosley (2007) 155 Cal.App.4th 313, 316-322 [incarcerated defendant’s threats to arrange for fellow gang members to follow jail guards home and kill them satisfied element (3), in view of his violent conduct in jail].)
An instructive application of these principles is found in People v. Mendoza (1997) 59 Cal.App.4th 1333. There, the defendant and his brother belonged to the Happy Town street gang. (Id. at p. 1337.) After the defendant’s brother was charged with the murder of a police officer, the defendant told a witness who had testified at his brother’s preliminary hearing that the witness had “‘fucked up his brother’s testimony’” and that “‘[h]e was going to talk to some guys from Happy Town.’” (Ibid.) A few minutes later, a Happy Town gang member parked in front of the witness’s house and gestured at her, and she later learned that other gang members were “looking for her.” (Id. at p. 1338.) The appellate court concluded there was sufficient evidence that the defendant’s remarks constituted a threat satisfying elements (1) and (3), as the witness had provided damaging testimony against the defendant’s brother, and the defendant had acted on his announced intention to rally the gang against the witness. (Id. at p. 1341.)
We reach the same conclusion here. Hernandez testified that appellant threw gang gestures toward her and asserted, “you guys are gonna get it. You guys are green-lighted.” Officer Magee testified that the term “green-lighted” meant that Hernandez was to be killed by CTE crew members; in addition, Hernandez testified that she so understood the remarks. This testimony, coupled with the evidence regarding the CTE crew’s hostility toward Hernandez and her family, established that appellant’s remarks constituted a threat, for purposes of element (1).
There is also ample evidence to support the juvenile court’s determination regarding element (3). Magee testified that the CTE crew engaged in gun-related violence, and that the incident underlying the arrest of Hernandez’s son exacerbated the rivalry between the CTE crew and the Latin Thugs. In addition, Hernandez testified that in July 2009, appellant engaged in a violent encounter with her family; that after her son’s arrest for the attempted murder of Intro, she saw appellant carrying a gun while he accompanied Intro; and that her husband independently heard that Hernandez’s family had been “green-lighted.” This evidence is sufficient to establish that appellant’s threat conveyed “a gravity of purpose and an immediate prospect of execution, ” for purposes of element (3) (§ 422).
Appellant’s reliance on In re Ricky T. (2001) 87 Cal.App.4th 1132 is misplaced. There, a juvenile cursed at a teacher and said, “‘I’m going to get you, ’” after the teacher accidently hit him with a door while opening it. (Id. at p. 1135.) The appellate court concluded that there was insufficient evidence that the remarks satisfied element (3), as the juvenile apologized for the remarks and had no history of misconduct toward the teacher. (Id. at pp. 1137-1138.) In contrast, as explained above, appellant’s remarks and conduct demonstrate the seriousness of purpose and imminence of action required under element (3). In sum, there is sufficient evidence that appellant made a criminal threat to Hernandez.
B. Probation Condition
Appellant contends that one of the conditions imposed on his probation is unconstitutionally vague and overbroad. As recorded on the preprinted form for probation conditions attached to the pertinent minute order, condition No. 15 states: “Do not associate with... anyone known to be disapproved of by... parents[, ]... Probation Officer.” Appellant argues that this condition is infirm because it fails to specify that the probationer must know who has been disapproved. In our view, he is mistaken.
As appellant notes, the formulation of condition No. 15, as found on the preprinted form, was enunciated in In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.). There, our Supreme Court examined a prior version of condition No. 15, which specified in pertinent part “that [the] defendant not ‘associate with anyone disapproved of by Probation Officer.’” (Id. at p. 880.) The court held that the condition was unconstitutionally infirm because it failed to notify the probationer in advance not to associate with persons whom the probationer knew to be disapproved of by the probation officer. (Id. at p. 891.) The court stated: “[W]e suggest that form probation orders be modified so that such a restriction explicitly directs the probationer not to associate with anyone ‘known to be disapproved of’ by a probation officer or other person having authority over the minor.” (Id. at p. 892.)
Appellant contends that this formulation of condition No. 15 is not free of constitutional error because it fails to specify that probationers themselves must know the identities of the disapproved persons. He argues that the condition “is still vague and ambiguous... as to who -- whether the minor, a parent, or a probation officer -- must have knowledge of persons disapproved of by the parent or the probation officer.” However, in propounding the current formulation of condition No. 15, the court in Sheena K. impliedly addressed and resolved this challenge to the formulation. Prior to stating the formulation, the court examined its discussion of a similar contention in People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117 (Acuna). In Acuna, the court confronted an injunction that prohibited named members of a gang from associating with “‘any other known... member’” of the same gang. (Id. at p. 1117.) The court rejected the defendants’ contention that the condition was infirm because it rendered the injunction applicable if a defendant associated with a person known to the police -- but not to the defendant -- as a gang member. (Ibid.) On this matter, the court reasoned that the requisite knowledge requirement was “fairly implied” under the circumstances, and that any court enforcing the injunction would insert the requirement. (Ibid.)
Because the court in Sheena K. announced the current formulation of condition No. 15 after noting its resolution of the contention in Acuna, the formulation must be interpreted in light of Acuna. We thus conclude that condition No. 15, as stated in Sheena K., already contains the knowledge requirement proposed by appellant. Because condition No. 15, in its current form, bars a probationer from associating with persons he or she knows to be disapproved of by the probation officer or other specified individuals, the condition is not constitutionally infirm.
DISPOSITION
The commitment order is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.