Opinion
E072495
03-05-2020
In re A.N., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.N., Defendant and Appellant.
Taylor L. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Lynne G. McGinnis and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J278470) OPINION APPEAL from the Superior Court of San Bernardino County. Winston S. Keh, Judge. Affirmed with directions. Taylor L. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Lynne G. McGinnis and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, A.N. (minor), was charged by petition with one count of making criminal threats. (Pen. Code, § 422, subd. (a).) After a court trial, the petition was found true. After a dispositional hearing, the court placed minor on probation with a term that minor was not to own, acquire, or possess a firearm before turning 30 years old. Minor appealed.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, minor raises three arguments: (1) that there was insufficient evidence to find the criminal threats charge true; (2) that the matter must be remanded because the trial court failed to exercise its discretion to state whether the offense was a misdemeanor or felony; and (3) the term forbidding him from owning, acquiring, or possessing a firearm may only be imposed if the trial court determines the offense was a misdemeanor. We affirm the judgment but remand with instructions.
II. FACTUAL AND PROCEDURAL BACKGROUND
Minor was a high school student in Jamie M.'s sixth period class, the last class of the day. While in Jamie M.'s class minor would sometimes "talk about the streets a lot and explain how hard it was on the streets." Jamie M. initially thought minor was talking about being homeless, but when she asked him he laughed at her and told other students that Jamie M. "doesn't understand the streets." When asked to elaborate what life "on the streets" was like, minor would sometimes pantomime shooting and killing people, stepping over their bodies, and taking things from them. This scared Jamie M., though minor never pretended to shoot at her or other students. Minor would also sometimes charge towards Jamie M., making her think he was going to knock her over, only to dodge at the last moment. Jamie M. asked him to stop this multiple times because he is "a big young man" and Jamie M. was concerned he would accidentally knock her over.
On September 11, 2018, minor called Jamie M. and asked her to look at something. Minor showed her that he had been wearing a shirt with an AK-47 firearm on it all day and nobody had said anything about it. Jamie M. told him that the shirt was inappropriate. At the end of the class, minor walked past Jamie M.'s desk and told her "'I'm going to shoot up the school tomorrow.'" Minor did not express that he was joking before walking out of the classroom.
Jamie M. feared that minor would actually carry out this plan based on his previous behavior. Moreover, she felt that it was "not for [her] to determine whether or not he is making a threat," that "[t]here was no joking about it," and that her "responsibility [was] to make sure that the students are safe and staff is safe." Thus, Jamie M. immediately reported minor's actions to the assistant principal and the school resource officer Deputy Alcala.
Deputy Alcala went to minor's home and, with his mother's consent, searched the living room of the home, which contained minor's bed. Deputy Alcala found two steak knives in two shoeboxes and a black BB gun in the baseboard of a subwoofer speaker. Minor came home during Deputy Alcala's search, and the deputy explained why he was there. Minor denied saying that he was going to shoot up the school, and claimed that he actually said, "'I hope I don't get shot.'"
On November 1, 2018, the district attorney for San Bernardino County filed a juvenile wardship petition charging minor with one count of making criminal threats. (§ 422, subd. (a).) The juvenile court held a court trial on March 5, 2019. The court found the petition true. The court held a dispositional hearing on March 29, 2019, where it placed minor on probation under his mother's custody. It also imposed a gun restriction, barring minor from owning, possessing, or exercising custody or control over a firearm until age 30. Minor was ordered not to possess any dangerous weapons, including firearms, as a condition of probation.
III. DISCUSSION
Minor argues that there was insufficient evidence to support the juvenile court's "true" finding that minor violated section 422. Specifically, minor argues that there was insufficient evidence adduced at trial to support a finding that minor specifically intended his statement be taken as a threat. In addition, minor argues that the juvenile court failed to specify whether the offense was a misdemeanor or felony, and that the gun restriction it imposed may be improper depending on whether the offense was a misdemeanor or felony. A. Sufficient Evidence Existed to Find that Minor had the Specific Intent that His Statement be Taken as a Threat
"[O]n this appeal challenging the sufficiency of the evidence to support a juvenile court judgment sustaining the criminal allegations of a petition made under the provisions of section 602 of the Welfare and Institutions Code, we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal." (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) Under this standard of review, we "'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (Ibid.) In other words, "the critical inquiry is 'whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the [offense] beyond a reasonable doubt.'" (Ibid.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the true finding].'" (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) "We resolve all evidentiary conflicts . . . 'in favor of the verdict, drawing every reasonable inference the [trier of fact] could draw from the evidence.'" (People v. Brady (2018) 22 Cal.App.5th 1008, 1014, quoting People v. Cardenas (2015) 239 Cal.App.4th 220, 226-227.)
"Substantial evidence must be of ponderable legal significance, reasonable in nature, credible and of solid value." (People v. Briscoe (2001) 92 Cal.App.4th 568, 585.) However, "[t]he trial court, not the reviewing court, 'is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences . . . .'" (People v. Duncan (2008) 160 Cal.App.4th 1014, 1018, quoting People v. Woods (1999) 21 Cal.4th 668, 673.)
"In order to prove a violation of section 422, 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—which may be 'made verbally, in writing, or by means of an electronic communication device'—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.)
"[S]ection 422 does not require an intent to actually carry out the threatened crime. [Citation.] Instead, the defendant must intend for the victim to receive and understand the threat, and the threat must be such that it would cause a reasonable person to fear for his or her safety." (People v. Wilson (2010) 186 Cal.App.4th 789, 806.) "[T]he determination whether a defendant intended his words to be taken as a threat . . . can be based on all the surrounding circumstances and not just on the words alone. The parties' history can also be considered as one of the relevant circumstances." (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340, superseded by statute on other grounds as noted in People v. Franz (2001) 88 Cal.App.4th 1426, 1442.)
On appeal, minor contends there was insufficient evidence to show that he made the threatening statement with the specific intent that it be taken as a threat. Instead, minor argues that the evidence shows only that he intended the statement as a joke. We disagree.
Substantial evidence supported the juvenile court's finding that minor had the specific intent that his statement be taken as a threat. Minor had a history of engaging in mock violence around Jamie M. Minor pantomimed shooting sprees and charged Jamie M., apparently with the intent of frightening her. Minor knew that this behavior frightened Jamie M., because she told him to stop doing it for fear he would accidentally knock her over. The history between Jamie M. and minor indicates that minor took some pleasure in teasing and frightening Jamie M. by suggesting that he was capable of tremendous violence. Thus, the juvenile court could have reasonably inferred that minor's threat was intended to induce fear in Jamie M. as another escalation in this behavior. Even if minor never had any intention of carrying out the threatened violence, the juvenile court could still reasonably conclude that he intended Jamie M. to take the statement as a threat and to be frightened for her safety.
In addition to minor's history with Jamie M., the precise circumstances of the threat also suggest that minor knew his threat would be taken seriously even if he did not take it seriously himself. It is an unfortunate fact that school shootings are becoming increasingly common tragedies in America. School administrators, students, and parents are hyper-aware that a mass shooting is an all-too-real possibility at any school. As such, any threat of a mass shooting—particularly a clear, unequivocal statement that the declarant is going to "'shoot up the school tomorrow,'"—is extremely likely to be taken as a serious threat. That minor likely knew his statement would be taken as a threat gives rise to the reasonable inference that he intended it as a threat. This is only bolstered by the fact that minor chose the anniversary of September 11, 2001—a day when many teachers, staff, and students might have an increased sensitivity to the possibility of terrorism—to threaten a terror attack of his own.
Thus, there was sufficient evidence that defendant specifically intended that his statement be taken as a threat, and we affirm the juvenile court's "true" finding as to the criminal threats charge. B. The Matter Must Be Remanded to Permit the Juvenile Court to Exercise Its Discretion to Designate the Criminal Threats Offense as a Felony or Misdemeanor
"If [a] minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." (Welf. & Inst. Code, § 702.) "The language of the provision is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult." (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) A violation of Penal Code section 422 is punishable either as a misdemeanor or a felony. (§ 422, subd. (a).)
Given the above, the juvenile court was obligated to explicitly declare whether minor's violation of section 422 was a felony or misdemeanor. Both minor and the People agree that the juvenile court did not do so. We agree with the parties.
We find no evidence in the record of any explicit statement by the juvenile court regarding whether minor's offense was a felony or misdemeanor. It is true that documents filed with the court and statements made on the record generally treated minor's offense as a felony; for instance, the petition charged the offense as a felony, the People argued in their closing that it should be a felony, and the defense argued that the conduct did not rise to the level of a felony. The court also stated that it found "the allegation in the petition . . . to be true. Minor has violated Penal Code section 422[, subdivision ](a), a felony." However, despite this, at no point did the court acknowledge that it had the discretion to designate the offense a misdemeanor, nor did it explicitly do so. Even if we accept the juvenile court's brief statement as an explicit declaration that it considered the offense a felony, there is nothing in the record which demonstrates that the juvenile court recognized it had the discretion to treat the offense as a misdemeanor.
Therefore, we agree with the parties that this case must be remanded to allow the juvenile court to explicitly declare whether the offense would be a felony or misdemeanor in the case of an adult. (See Manzy W., supra, 14 Cal.4th at pp. 1210-1211 [finding that remand is appropriate where juvenile court failed to exercise its duty to declare an offense either a felony or misdemeanor].) C. On Remand, the Juvenile Court Should Only Re-Impose the Gun Restriction Term if it Declares the Offense to be a Misdemeanor
Section 29820, subdivisions (a) and (b) together prohibit any person who is both "alleged to have committed . . . any offense enumerated in Section 29805," and is "adjudged a ward of the juvenile court," from owning, possessing, or having custody or control over a firearm until the age of 30. Section 29805, subdivision (a), states that "any person who has been convicted of, or has an outstanding warrant for, a misdemeanor violation of Section . . . 422 . . . and who . . . owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, punishable by imprisonment in a county jail not exceeding one year or in the state prison." (§ 29805, subd. (a), italics added.) Though section 29820 also places gun restrictions on wards of the juvenile court for other types of violations, only Penal Code section 29805 references Penal Code section 422. (Cf. Welf. & Inst. Code, § 707, subd. (b); Pen. Code, §§ 1203.073, 25850, 25400, subd. (a), 26100, subd. (a).) Thus, the gun restrictions required by Penal Code section 29820 apply only to misdemeanor violations of Penal Code section 422, and not felonies.
We recognize the anomalous situation created by the statute subjecting misdemeanants to the firearms restriction, while excluding felons. --------
Indeed, it does not appear that juvenile courts may order gun restrictions of any kind for felony violations of section 422. As the People point out in their brief, gun restrictions for juvenile felony offenders may be found in section 29800, subdivision (b). To the extent this section applies to juvenile offenders it only applies to "any person who has been convicted of a felony or of an offense enumerated in Section 23515, when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court." (§ 29800, subd. (b).)
Thus, section 29820 gun restrictions only apply to juvenile section 422 misdemeanants, and section 29800 gun restrictions would not apply to minor even if he was a juvenile section 422 felon because he was not convicted in adult court. Therefore, the juvenile court's order that defendant be barred from owning or possessing a firearm until he is 30 may only be imposed if, on remand, the juvenile court declares that minor's violation of section 422 would be a misdemeanor if minor were an adult.
IV. DISPOSITION
We remand to the juvenile court with instructions to declare, pursuant to Welfare and Institutions Code section 702, whether minor's offense is a misdemeanor or a felony. If the juvenile court determines the offense is a felony, we direct the juvenile court to strike the gun restriction barring minor from owning, possessing, or having custody or control of a firearm until he is 30 years old. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: CODRINGTON
Acting P. J. RAPHAEL
J.