Opinion
B292439
05-15-2020
In re J.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.G., Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Acting Senior Assistant Attorney General, Michael R. Johnsen and Amanda V. Lopez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NJ29539) APPEAL from a judgment of the Superior Court of Los Angeles County, John H. Ing, Judge. Affirmed. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Acting Senior Assistant Attorney General, Michael R. Johnsen and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant J.G. appeals from a judgment of the juvenile court holding him liable for making bomb threats to three schools: Phineas Banning High School (Banning), Carson High School (Carson), and Gulf Avenue Elementary School (Gulf). At the adjudication hearing, the prosecution established that a phone belonging to appellant was used to call Banning; minutes later, a phone belonging to appellant's friend J.L. was used to call Carson and Gulf. Additionally, police officers testified that while appellant had accused J.L. or another friend of making each call, he admitted that he was present when the calls were made, that he contemporaneously understood the calls to relate to bomb threats, and that he identified Gulf as the school his brother attended, with the understanding that his friends intended to make a bomb threat to that school. Testifying in his defense, appellant admitted he and his friends had intended to make prank calls, but claimed he neither understood nor inquired about the calls' subject matter at the time his friends made them. In closing argument, the prosecutor argued appellant was liable for all three bomb threats on an aiding and abetting theory; defense counsel argued appellant was merely a bystander. Finding the allegations with respect to all three bomb threats true, the juvenile court declared appellant a ward of the court.
On appeal, appellant contends no substantial evidence supported the court's true findings concerning his role in the Carson and Gulf bomb threats (made from his friend's phone). He makes no contention of error with respect to the Banning threat (made from his phone). Finding substantial evidence supported the judgment in its entirety, we affirm.
STATEMENT OF THE CASE
In a petition under Welfare and Institutions Code section 602, the Los Angeles District Attorney alleged that appellant maliciously and falsely reported the placement of bombs at Banning (count one), Gulf (count two), and Carson (count three), in violation of Penal Code section 148.1, subdivision (c), which provides, "Any person who maliciously informs any other person that a bomb or other explosive has been or will be placed or secreted in any public or private place, knowing that the information is false, is guilty of a crime . . . ." After a contested adjudication, the juvenile court sustained the petition and declared all three offenses felonies. Appellant was declared a ward of the court and placed home on probation. Appellant timely appealed.
PROCEEDINGS BELOW
A. Prosecution Case
An office technician at Banning, a Spanish teacher at Carson, and an assistant principal at Gulf all similarly testified that on May 15, 2017, between 12:00 and 12:30 p.m., each received a call falsely reporting the presence of a bomb at their respective schools. Each witness testified the caller was male. The witness from Banning testified the caller sounded young, while the witness from Carson testified the caller sounded "older-age." The Carson and Gulf witnesses testified the caller spoke Spanish, while the Banning witness did not recall what language the caller spoke.
Michael Elliott, an information technology detective for the Los Angeles School Police Department, obtained AT&T records listing calls to each school on the day of the threats. Using those records and a police database, he identified a phone number that appellant later admitted was his own, as well as a phone number associated with the name of appellant's friend J.L., who appellant later admitted made at least one of the threats. Detective Elliott and an AT&T manager testified that on the day of the bomb threats, a call was made from appellant's number to Banning at 12:10 p.m.; calls were made from J.L.'s number to Carson at 12:13, 12:36, and 12:37 p.m.; and two calls were made from J.L.'s number to Gulf at 12:39 p.m. Each call was made using "*67" (star-67), which prevents the recipient of the call from seeing the caller's number. Additionally, a call was made from appellant's number, using star-67, to J.L.'s number at 12:19 p.m.
Detective Elliott interviewed appellant in the presence of appellant's mother and Officer David Llamas (who also testified in rebuttal). Detective Elliott testified that appellant admitted he, J.L., and two mutual friends (David and Jonathon) visited a fast food restaurant to make prank calls on the day of the bomb threats, and that upon their arrival, Jonathon expressed an intent to call Banning. Appellant claimed he left his phone with his friends while he ordered food, and returned to find J.L. using his phone, speaking a Spanish dialect too quickly for him to fully understand. He admitted understanding that the call related to a bomb threat. Appellant reclaimed his phone when J.L. completed the call. He remained with his friends as they made three additional calls to schools, all of which were "various types of bomb threats." As appellant prepared to leave the restaurant, one of his friends asked him where his brother attended school, and he answered that his brother attended Gulf.
Officer Llamas's account of appellant's statements during the interview generally corroborated Detective Elliott's account. Officer Llamas additionally recalled that appellant admitted he told his friends his brother attended Gulf "with the understanding that they were going to call in a bomb threat" to his brother's school.
B. Defense Case
Appellant was the sole defense witness. He testified that on the day of the bomb threats, he, J.L., David, and Jonathon visited a fast food restaurant. He further testified that "the plan" was to make prank calls, explaining, "Before we went to [the restaurant] we mentioned we were going to do prank calls . . . ."
After appellant and his friends arrived at the restaurant, Jonathon said he was going to call Banning, but appellant did not know why. Appellant then left his friends to order food for everyone, leaving his phone at the table where his friends were sitting. When he returned five to ten minutes later, J.L. was using appellant's phone, speaking Spanish too quickly for appellant to understand. Appellant's friends were laughing when J.L. completed the call, and appellant thought they were laughing about "a joke we had mentioned." Appellant reclaimed his phone, distributed the food he had ordered, and started eating.
Appellant denied telling the police he understood J.L. to be making a bomb threat, instead claiming he told the police he learned the subject matter of J.L.'s call only after leaving the restaurant. On cross-examination, appellant described his proficiency in Spanish as follows: "Sometimes I mess up. I was raised on the language, but I wasn't raised on most of the language because they speak Spanish -- [¶] . . . [¶] I can speak Spanish but not most of the language that are spoken [sic]." When asked whether a transcript of J.L.'s call would enable him to determine whether J.L. had spoken an unfamiliar dialect, he did not answer the question, instead testifying that he had not understood J.L. because "the way that [J.L.] had spoken on the phone -- the language -- Spanish was fast for me to understand."
Appellant remained with his friends as they made "numerous" phone calls in Spanish. He did not understand what was said on the calls "because there was low volume." His friends were laughing. He never asked what they were saying on the calls.
Around the time appellant left the restaurant, his friends asked him which school his brother attended, and he told them that his brother attended Gulf. He denied that he intended his friends to make a bomb threat to Gulf. He testified, "I didn't really think why the reason why [sic] they were asking me what school my little brother was going to."
C. Arguments and Ruling
The prosecutor argued appellant was liable for all three bomb threats under an aiding and abetting theory. He argued appellant's admitted plan to make prank calls with his friends established the bomb threats had been made maliciously and with knowledge that the information was false. He further argued appellant had known his friends were making bomb threats and intended to aid or encourage them to do so, relying on the police officers' testimony that appellant had admitted he contemporaneously understood the nature of the calls and nevertheless named Gulf as a target. Finally, he argued appellant had aided the threat to Banning by providing his phone, and aided or even "order[ed]" the threat to Gulf by naming it as a target. He articulated no theory regarding the threat to Carson, instead submitting on the testimony.
Appellant's counsel argued appellant had neither planned to make bomb threats nor understood the nature of the calls at the time they were made. Noting that appellant had reclaimed his phone after J.L. completed the call to Banning, he argued that any aid he supplied by leaving his phone behind was unintentional. He further argued appellant had neither aided nor intended to aid the Gulf call, as his friends likely would have identified Gulf as a target even had appellant not named it, and appellant had named it without knowing his friends were seeking a target.
The juvenile court sustained the petition on all counts. In announcing its ruling, it addressed appellant's counsel as follows: "[Y]ou make a great argument, but for the fact that your client was not credible and I did not believe his testimony or even all of his statements that he made to the police officer." It did not expressly adopt the prosecutor's aiding and abetting theory.
The court declared all three offenses felonies, declared appellant a ward of the court, and placed him home on probation. Appellant timely appealed.
DISCUSSION
As noted, appellant does not challenge the sufficiency of the evidence to support count one -- the bomb threat to Banning made from appellant's phone. Rather, he contends no substantial evidence supported the true findings concerning his aiding and abetting of the bomb threats to Carson and Gulf.
A. Principles
It is a crime, which may be punished as either a felony or a misdemeanor, for any person to "maliciously inform[] any other person that a bomb or other explosive has been or will be placed or secreted in any public or private place, knowing that the information is false . . . ." (Pen. Code, § 148.1, subd. (c).) An intent to vex or annoy satisfies the malice requirement. (See In re J.M. (2019) 36 Cal.App.5th 668, 678, citing Pen. Code, § 7, subd. (4).)
A person is guilty of a crime as an aider and abettor if the person "'"aids, promotes, encourages or instigates"'" its commission by act or advice, with "'"knowledge of the unlawful purpose of the perpetrator"'" and "'"the intent or purpose of committing, encouraging, or facilitating the commission of the offense."'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen).) Ordinarily, a finding of the required conduct paired with the required knowledge will support a reasonable inference of the required intent. (See People v. Morales (2003) 112 Cal.App.4th 1176, 1198-1199.)
We review the sufficiency of the evidence supporting a conviction for substantial evidence, meaning evidence from which a reasonable factfinder could find the defendant guilty beyond a reasonable doubt. (People v. Ghobrial (2018) 5 Cal.5th 250, 277-278.) "[T]heories suggested by the prosecutor are not the sole theories the [factfinder] may consider in making its determination of guilt." (People v. Clark (2011) 52 Cal.4th 856, 947 (Clark).)
B. Analysis
We find no error in the juvenile court's true findings regarding appellant's liability for the bomb threats made to Carson and Gulf, because substantial evidence supports the following sequence of events: Appellant planned to make prank calls with J.L. and mutual friends. Appellant made the bomb threat to Banning, using star-67 to obscure his number. J.L. made an initial call to Carson (using star-67), but did not complete the bomb threat. Minutes later, despite being in J.L.'s immediate presence, appellant called J.L.'s phone, again using star-67. Thereafter, J.L. made two more calls to Carson (again using star-67), this time completing the bomb threat to the school. Finally, when a friend asked appellant which school his brother attended, he named Gulf, fully understanding that J.L. intended to make a bomb threat to that school -- which J.L. proceeded to do.
The petition alleged that appellant made the bomb threat to Banning, without alleging that he acted as an aider and abettor. In sustaining the petition, the juvenile court did not expressly adopt the prosecutor's aiding and abetting theory, but did express its view that neither appellant's testimony, nor "even all of his statements that he made to the police" were credible. The court was entitled to consider theories not suggested by the prosecutor. (See Clark, supra, 52 Cal.4th at 947.)
Appellant appropriately concedes the evidence supported a reasonable inference that he himself made the threat to Banning. He admitted in his testimony that the Banning threat was made with his phone, which he kept on his person throughout most of the incident (he claimed he parted from his phone for a brief period, during which J.L used it to make the threat, but the court was entitled to reject that claim). The reasonable inference that appellant made the Banning threat was reinforced by testimony suggesting the Banning caller had a young-sounding voice, whereas the Carson caller had an older-sounding voice, suggesting the calls were made by different people.
This sequence of events supported findings that appellant aided and abetted the bomb threats to Carson and Gulf. It was reasonable to infer that he knew of J.L.'s purpose to make the threats and intended to encourage or assist the fulfillment of that purpose, given his admitted plan to make prank calls with J.L., his making of the first bomb threat, and his identification of Gulf as the school to which J.L. intended to make an additional threat. (See, e.g., In re Jessie L. (1982) 131 Cal.App.3d 202, 207-208, 217-218 [sufficient evidence supported aiding and abetting liability, where defendant told police he and his companions discussed plan to find someone to rob, and he continued "go[ing] along with them after observing [a first] attempted robbery"].) Further, it was reasonable to infer that appellant actually encouraged and assisted the calls to Carson and Gulf by: (1) making the threat to Banning as an example; and (2) testing or demonstrating the efficacy of the star-67 function by using it to call J.L.'s phone before J.L. completed the threats to Carson and Gulf. (See People v. Yarber (1979) 90 Cal.App.3d 895, 911, 916-917 [finding substantial evidence, absent trial court's prejudicial instructional error, to sustain defendant's conviction for aiding and abetting her husband's oral copulation with minor, where jury could find defendant performed oral sex on husband shortly before minor did "in order to encourage and induce [minor] to follow suit"]; cf. People v. Madison (1966) 242 Cal.App.2d 820, 827 [rejecting defendant's contention that evidence disclosed no "affirmative act" sufficient to sustain his conviction, as aider and abettor, for grossly negligent driving resulting in death, where defendant expressed hostility to victim before he and his companions chased victim's car and, during chase, defendant "affirmed his willingness to have the driver continue the pursuit" by telling driver to "'[g]et'" victim]; People v. Lodge (1963) 212 Cal.App.2d 410, 411-413 [finding substantial evidence that defendant "counseled" and "cooperated" with perpetrator in accomplishing theft of TV, where defendant accompanied perpetrator on walk through store, conversed with perpetrator before walking to TV department together, and continued accompanying perpetrator as perpetrator walked out with TV and fled from pursuers].)
It is immaterial that the prosecutor did not suggest these theories. (See Clark, supra, 52 Cal.4th at 947.) The prosecutor did suggest an alternative valid theory with respect to the Gulf threat: appellant aided the threat by identifying J.L.'s preferred target (i.e., by identifying Gulf as the school his brother attended). (See Nguyen, supra, 61 Cal.4th at 1055-1056 [defendant's presence in car with fellow gang members and his staring at victims as they passed by, in context of war with victims' gang, supported reasonable inference that defendant intentionally facilitated victims' impending shooting by "spotting potential targets"].) This theory supplies an independent basis for affirming the true finding concerning the Gulf threat.
The cases cited by appellant do not assist him. Though two found insufficient evidence to support aiding and abetting liability, they are distinguishable. (See Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262, 1276-1279 [finding insufficient evidence to support aiding and abetting liability, where defendant merely stood, unarmed, behind perpetrator of murder and attempted murder, and no evidence supported reasonable inference that defendant knew perpetrator would murder or even assault victims]; People v. Joiner (2000) 84 Cal.App.4th 946, 966-967 [same, where there was no evidence defendant assisted perpetrator before completion of crime or was "involved in any planning" of crime].) Another case cited by appellant is analogous in part, but in a manner that supports the judgment. In People v. Miranda (2011) 192 Cal.App.4th 398, our colleagues in Division Eight found substantial evidence that the defendant intended to facilitate the perpetrator's plan to rob the victim of marijuana (either by intimidating the victim into handing the marijuana over or assisting the perpetrator in seizing it), and emphasized that the defendant testified, "'We asked [the victim] for some weed.'" (Id. at 409.) Here, appellant testified, "Before we went to [the restaurant] we mentioned we were going to do prank calls . . . ." (Italics added.) This testimony -- consistent with the evidence that appellant and J.L. each made at least one bomb threat -- supported a reasonable inference that appellant shared J.L.'s purpose and intended to promote its fulfillment.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: WILLHITE, J. CURREY, J.