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In re G.W.

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Jul 10, 2017
C082273 (Cal. Ct. App. Jul. 10, 2017)

Opinion

C082273

07-10-2017

In re G.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. G.W., Defendant and Appellant.


NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV137693)

Following a contested jurisdictional hearing, the juvenile court sustained a petition (Welf. & Inst. Code, § 602) alleging that minor George W. made a criminal threat (Pen. Code, § 422) to his former girlfriend, M.W., and M.W.'s grandmother, Cheryl. On appeal, the minor contends there was insufficient evidence to support the juvenile court's findings. We disagree and affirm.

Undesignated statutory references are to the Penal Code.

I. BACKGROUND

A. Factual Background

1. Count One: Criminal Threat Made to M.W.

The minor and M.W. met when they were freshmen in high school. At the time of the contested jurisdictional hearing, they had been a couple for over three years. They had a 16-month-old daughter and M.W. was pregnant with their second child. M.W. was 17 years old.

M.W. testified that she and the minor had lived together "off and on" at her parents' house for the past two years, and that the minor had moved out at some point because they were "fighting a lot." M.W. explained that they had gotten into two arguments that had "turned physical." During the second argument, which occurred in November 2015 before Thanksgiving Day, the minor put his hands on M.W.'s throat and yelled at her. Although M.W. testified that the minor did not "squeeze or anything," she previously told Sacramento County Sheriff's Deputy Richard Nielsen that the minor had choked her, and that she felt scared when he did so.

The day after the choking incident, M.W. told the minor that she no longer wanted to be with him. She also stopped letting the minor see their daughter, which made him mad.

A few days after the break-up, the minor started sending M.W. text messages. At first, they were "nice text messages." But, when M.W. ignored them, the minor sent messages threatening to kill her and her baby if she did not allow him to see their daughter. The minor also sent M.W. a message indicating that if he did not get a chance to kill her, he would kill her brother or grandmother. The minor told M.W. that he would run his car into her house and start shooting people.

On December 3, 2015, M.W. filed an application for a restraining order against the minor. In support of her application, M.W. asserted that the minor got "really angry" and choked her, and that she was concerned that he might do something worse or hurt someone else, including their daughter. M.W. claimed that the minor had threatened to kill her and take her child, and that she delayed seeking a restraining order because she was "scared" and did not know what to do. M.W. also claimed that the minor had choked her younger sister "in the past." As part of her application, M.W. submitted various documents containing messages the minor had sent to her. These documents show that, in addition to threatening to kill M.W.'s parents, the minor told M.W., among other things, that he was going to "really put hands on [her]," "chop [her] fucking head off," and "run [his] car through [her] fucking house." He also sent M.W. a message saying, "[You are] making me want to kill [you] and I feel like I would be ok with that." In other messages, the minor indicated that M.W. would not be giving birth to their child because he was going to "break [her] off." According to M.W., she did not serve the restraining order on the minor because she "was afraid he was going to come and hurt [her] family."

M.W. testified that the minor sent messages to her mother. In those messages, he indicated that he was going to kill her parents.

On December 5, 2015, the minor sent M.W. a text message with a picture of bullets. The message said, "I'm going to real like shoot one today[.] I can feel it." When M.W. told the minor to stop and explained that this type of behavior was why she did not want him around their daughter, he replied, "I'm glad [you] just bought some more for this [.]22." He then sent her a message that stated, "Yeah[,] well[,] it's a rap[.] I have [you] a dead[]line and if I don't see her[,] I'll shoot [your brother] and grandma today."

The text message indicated that the minor would shoot "Jt." The initials "Jt" are a reference to M.W.'s brother.

Around two to three hours after the minor threatened to kill M.W.'s brother and grandmother, M.W.'s aunt called 911 and M.W. spoke with the dispatcher. Deputy Nielsen was dispatched to M.W.'s house. When Deputy Nielsen arrived at the residence, M.W. told him about the minor's threat to kill her and her child as well as his threat to kill her brother and grandmother. She also told Deputy Nielsen that the minor had threatened to drive his car into her house and shoot people.

M.W. testified that she would not have called the police on her own.

Although M.W. testified that she was not afraid of the minor and was not scared that he would actually hurt her or any member of her family, she told Deputy Nielsen that she was scared of the minor and believed his threats. Further, while M.W. testified that she had only seen the minor with a gun on one occasion in the past and never saw him with a gun in his waistband, she told Deputy Nielsen that she had seen the minor carry a gun, and that he typically carried it in his waistband. When Deputy Nielsen testified, he said that M.W. was crying and seemed very scared during their conversation.

2. Count Two: Criminal Threat Made to Cheryl

After the minor moved out of M.W.'s house, Cheryl allowed him to stay with her. However, a few days before December 5, 2015, Cheryl told the minor that he needed to move out because of his anger. When the minor was collecting his belongings, he told Cheryl that he would kill M.W. and her unborn baby if "he couldn't see his . . . daughter." According to Cheryl, the minor said that if he could not be with M.W. and his daughter then "nobody was going to be." The minor also told Cheryl that he would "run a car into [her] house."

When Deputy Nielsen spoke with M.W. about the minor's threats, Cheryl was present. Cheryl spoke with Deputy Nielsen and told him about the conversation she had with the minor when he was collecting his belongings. She said that the minor "basically" threatened "to blow [her] house up and kill everybody [inside]." Cheryl also said that the minor threatened "to drive a vehicle into her residence" to "kill people," including her. Cheryl explained that during the conversation, the minor kept putting his hand into his waistband as if he were going to pull out a gun. He also repeatedly told her that he had a gun. Although Cheryl never saw a gun, she observed a bulge in the minor's pants. According to Cheryl, the minor was "behaving kind of[] erratically." She explained that she "felt kind of frozen" and apprehensive about what was going to happen.

When Cheryl testified, she claimed that she was afraid the minor might hurt M.W., explaining, "[M.W.] doesn't know when to stop her mouth and neither does he. And so, the two of them together are like gasoline and fire when they get going, when their mouths get going." While Cheryl also testified that she was not afraid the minor would hurt her or anybody in her family, she told Deputy Nielsen that the minor is crazy and would kill "somebody." Cheryl also told Deputy Nielsen that she felt threatened and scared by the minor's conduct. She said that he was "continually acting crazy and that his attitude . . . was continually getting worse." B. Procedural Background

On December 8, 2015, a petition was filed pursuant to Welfare and Institutions Code section 602, subdivision (a), charging the minor with two counts of making a criminal threat (§ 422). A contested jurisdictional hearing commenced on February 22, 2016, and concluded on March 1, 2016. At the conclusion of the hearing, the juvenile court sustained the allegations in the petition. At the dispositional hearing, the juvenile court adjudged the minor a ward of the court and ordered him to serve 23 days in the juvenile hall with credit for 23 days served. The minor was placed on probation with various terms and conditions, including the condition he complete 64 days on electronic monitoring with credit for 64 days served, serve four days on the Juvenile Work Project program, complete a Batterer's Treatment program, and have only peaceful and lawful contact or communication with M.W. and Cheryl. His maximum term of confinement was set at six years.

The minor filed a timely notice of appeal.

II. DISCUSSION

The minor contends there is insufficient evidence in the record to support the juvenile court's findings that he made a criminal threat to M.W. or Cheryl. According to the minor, the alleged threats on their face, and under the circumstances in which they were made, were not so unequivocal, unconditional, immediate, and specific as to convey to M.W. or Cheryl a gravity of purpose and an immediate prospect of execution of the threats. The minor further contends that the alleged threats did not cause M.W. or Cheryl to be in sustained fear for their personal safety. We disagree. A. Standard of Review

" 'The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials.' [Citation.]" (In re Cesar V. (2011) 192 Cal.App.4th 989, 994.) " 'Under this standard, 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 crime beyond a reasonable doubt." [Citation.] An appellate court "must review the whole record in the light most favorable to the judgment below 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." [Citations.]' " (Ibid.) If the circumstances reasonably justify the trier of fact's findings, whether a contrary finding is also possible does not warrant a reversal of the judgment. (People v. Valencia (2008) 43 Cal.4th 268, 289-290; In re George T. (2004) 33 Cal.4th 620, 631.) Furthermore, "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) B. Sufficiency of the Evidence

In order to establish a violation of section 422 the prosecution must prove: "(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. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228; In re George T., supra, 33 Cal.4th 620, 630.) In this case, the minor challenges the third and fourth elements.

For purposes of section 422, " 'immediate family' means any spouse, . . . parent, child, [or] any person related by consanguinity or affinity within the second degree." (§ 422, subd. (b); see People v. Wallace (2008) 44 Cal.4th 1032, 1054 ["immediate family" includes a person's siblings and grandparents].) --------

1. Third Element: Unequivocal, Unconditional, Immediate, and Specific Threat

The minor contends the evidence in the record is insufficient to show that his words were "so unequivocal, unconditional, immediate and specific" as to constitute a criminal threat. He argues that most of his statements were in the nature of rants, and that the alleged threats were never meant to be more than a child inappropriately venting his frustration over a stressful family dispute. According to the minor, "the parties engaged in a series of emotional outbursts that were not foreign or unusual for this family."

In determining whether a particular threat is a criminal threat, we consider all of the circumstances surrounding the threat including the words used, the manner in which the communication is made, the prior relationship of the parties, and the actions of the accused after communicating the threat. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860 (Ryan D.).) "To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier 'so' unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution." (Id. at p. 861.)

Section 422 " 'was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others.' [Citation.] In other words, section 422 does not punish such things as ' mere angry utterances or ranting soliloquies, however violent.' [Citation.]" (Ryan D., supra, 100 Cal.App.4th at p. 861.) Instead, a criminal threat "is a specific and narrow class of communication;" "[i]t is the expression of an intent to inflict serious evil upon another person. [Citation.]" (Id. at p. 863.)

" 'A threat is sufficiently specific where it threatens death or great bodily injury. A threat is not insufficient simply because it does "not communicate a time or precise manner of execution, section 422 does not require those details to be expressed." [Citation.]' " (People v. Wilson (2010) 186 Cal.App.4th 789, 806.) An "immediate" threat is one with a "degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.)

Defendant attempts to liken his threats to the remarks made by the teenager in In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.). In Ricky T., the 16-year-old student left the classroom to use the restroom, returned to find the classroom door locked and pounded on the door. When the teacher opened the door, it hit the minor on the head. The minor got mad, cursed and told the teacher, " 'I'm going to get you.' " The teacher sent the minor to the school office. (Id. at p. 1135.) Finding insufficient evidence that the minor made a criminal threat, the appellate court noted that "the remark, 'I'm going to get you' is ambiguous on its face and no more than a vague threat of retaliation without prospect of execution." (Id. at p. 1138.) There was no show of physical violence or "close-up physical confrontation" accompanying the vague threat. Additionally, there was no evidence of any prior history of disagreement or hostility between student and teacher. (Ibid.) Under those circumstances, the minor's "intemperate, rude, and insolent remarks hardly suggest[ed] any gravity of purpose." (Ibid.)

The minor's reliance on Ricky T. is misplaced. Here, in contrast to Ricky T., the minor did not make ambiguous statements. The record discloses that the minor made clear statements threatening to kill M.W. and her immediate family members. For example, the minor threatened to run his car into M.W.'s house and shoot people. He also told M.W. that he would "chop [her] fucking head off" and "put hands on [her]." In addition, he told M.W. that he wanted "to kill [her]," and that he felt like he "would be ok with that." He also sent M.W. a picture of bullets with the message, "I'm going to real like shoot one today[.] I can feel it." He followed-up with a message about seeing his daughter that stated, "Yeah[,] well[,] it's a rap[.] I have [you] a deadline and if I don't see her[,] I'll shoot [your brother] and grandma today."

On this record, we conclude that there is substantial evidence supporting the juvenile court's finding that the minor made at least one unequivocal, unconditional, immediate, and specific statement to M.W. that constitutes a criminal threat. In addition to the language of the threatening statements, the minor's aggressive behavior and prior conduct provide context in which to evaluate the gravity of his statements. There was evidence that the minor and M.W. had gotten into two arguments in the past that "turned physical," including a recent argument in which the minor choked M.W. There was also evidence that the minor was acting erratic and "crazy" after M.W. broke-up with him, and claimed to be armed with a gun while threatening to kill M.W. and her unborn baby. The record further discloses that M.W. knew the minor had carried a gun in the past. Under these circumstances, a reasonable trier of fact could have concluded that defendant made a criminal threat to M.W. within the meaning of section 422.

We also conclude that there is substantial evidence supporting the juvenile court's finding that the minor made at least one unequivocal, unconditional, immediate, and specific threat to Cheryl that constitutes a criminal threat. The minor told Cheryl that he would kill M.W. and her unborn baby if "he couldn't see his . . . daughter." He said that if he could not be with M.W. and his daughter then "nobody was going to be." In addition, the minor told Cheryl that he was "going to blow [her] house up and kill everybody there," and that he was going to "drive a vehicle into her residence" to "kill people," including Cheryl. The minor's erratic and "crazy" behavior that accompanied these threats, as well as his insistence that he was carrying a gun and the appearance of a bulge in his pants, conveyed to Cheryl a gravity of purpose and an immediate prospect of execution of the threats.

Contrary to the minor's contention, he made statements that were more than just mere teenage rants or emotional outbursts. The record contains ample evidence supporting the juvenile court's determination that the third element of section 422 was established.

2. Fourth Element: Sustained Fear

The minor contends that the alleged threats did not cause M.W. or Cheryl to be in sustained fear for their personal safety. We disagree.

Fear is sustained if there is "evidence that the victim's fear is more than fleeting, momentary or transitory." (People v. Culbert (2013) 218 Cal.App.4th 184, 190.) "The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)

We conclude substantial evidence supports the juvenile court's finding that M.W. and Cheryl were in sustained fear for their own safety and/or the safety of their immediate family members. M.W.'s application for a restraining order indicates that she was scared of the minor. When M.W. testified, she confirmed that she was afraid of him. She explained that she did not serve the restraining order on the minor because she "was afraid he was going to come and hurt [her] family." According to Deputy Nielsen, on the day the minor threatened to kill M.W.'s brother and grandmother, M.W. claimed she was scared of the minor and believed his threats. As for Cheryl, Deputy Nielsen testified that she told him that she felt threatened and scared by the minor's statements and conduct, and that the minor was acting crazy and his attitude was getting worse from her previous interactions with him. When Cheryl testified, she explained that she felt apprehensive and "frozen" during her conversation with the minor when he was collecting his belongings because he was acting crazy and erratic, had a bulge in his pants, and had claimed to have a gun.

The minor's prior physical violence toward M.W., coupled with the fact that M.W. felt she needed a restraining order and to speak with the police on the day he threatened to kill her brother and grandmother, indicate that she felt threatened by the minor's behavior and was afraid of him. M.W.'s actions and statements to Deputy Nielsen belie her testimony that she was not afraid of the minor and was not scared that he would actually hurt her or any member of her family. Similarly, Cheryl's testimony that she was not afraid the minor would hurt her or anybody in her family was contradicted by statements she made to Deputy Nielsen indicating that she felt threatened and scared by the minor's conduct. The juvenile court specifically credited the testimony of Deputy Nielsen. On appeal, we may not substitute our determination as to the credibility of a witness. (See People v. Hamlin (2009) 170 Cal.App.4th 1412, 1426.) In view of the record, a reasonable trier of fact could have concluded that the fourth element of section 422 was established.

III. DISPOSITION

The juvenile court's findings and orders are affirmed.

/S/_________

RENNER, J. We concur: /S/_________
MAURO, Acting P. J. /S/_________
HOCH, J.


Summaries of

In re G.W.

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Jul 10, 2017
C082273 (Cal. Ct. App. Jul. 10, 2017)
Case details for

In re G.W.

Case Details

Full title:In re G.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Date published: Jul 10, 2017

Citations

C082273 (Cal. Ct. App. Jul. 10, 2017)