IN RE: DONTE T. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Donte T. was declared a ward of the juvenile court and placed home on probation after the court sustained a petition alleging he had violated Penal Code section 136.1, subdivision (b)(1), dissuading a victim or witness from reporting a crime.   On appeal Donte contends the evidence is insufficient to support the court's finding.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A Welfare and Institutions Code section 602 petition was filed on February 16, 2011 alleging Donte, then 15 years old, had committed a felony violation of Penal Code section 136.1, subdivision (b)(1), two days earlier by unlawfully attempting to prevent and dissuade Jose O., a victim and witness of a crime, from making a report of the crime to a police officer.

Jose and Los Angeles Police Officer Jens Beck testified at the jurisdiction hearing on March 8, 2011.   Jose explained he was walking home from Jordan High School at approximately 3:30 p.m. on February 14, 2011 when two tall African–American males robbed him of the necklace he had been wearing and ran away.   Shortly after the robbery, Jose encountered Officer Beck and his partner and told them he had been robbed.   The police detained four young men;  Jose identified one of them as one of the robbers.   The officers arrested the suspect.   As this was taking place, Donte and several youths stood nearby.   Donte pointed his finger at Jose, then curled his hand into a fist and punched it into his other hand.   Jose could see Donte moving his lips but could not hear what he was saying.   Jose testified he understood Donte's gesture as threatening, that “they were going to get [him] back.”   Jose also testified he had seen Donte at Jordan High. Jose stopped attending the school because he was afraid he would be attacked.

Officer Beck testified he and his partner were in a marked patrol car when Jose flagged them down.   Beck first saw Donte when Beck was talking to the robbery suspect that Jose had identified.   Beck observed Donte pointing in Jose's direction and heard him say Jose was a snitch and that he and Jose went to the same school.

Following Jose and Officer Beck's testimony Donte's counsel moved to dismiss the petition pursuant to Welfare and Institutions Code section 701.1, contending the People had failed to prove an essential element of the offense charged.   Counsel argued Jose had completed his report of the robbery before Donte made his threatening gestures, and it was therefore impossible for Donte to be attempting to prevent Jose from making the report.   The motion was denied.

Donte did not testify and presented no witnesses or other evidence in his defense.   In closing argument his counsel again asserted Jose's report had been completed before Donte arrived at the scene and also argued Donte's gestures and statement that Jose was a snitch were too ambiguous to constitute an implied threat of force or violence.

At the conclusion of argument the court found the People had proved their case beyond a reasonable doubt and sustained the petition, declaring the offense to be a felony.   At disposition Donte was placed home on probation.

DISCUSSION

1. Standard of Review

The same standard governs review of the sufficiency of evidence in juvenile cases as in adult criminal cases:  “[W]e review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.  [Citation.]  The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citation.]  In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.  [Citation.]  ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for 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 upon which a determination depends.  [Citation.]  We resolve neither credibility issues nor evidentiary conflicts;  we look for substantial evidence.  [Citation.]’  [Citation.]   A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury's verdict.”  (People v. Zamudio (2008) 43 Cal.4th 327, 357;  see In re Matthew A. (2008) 165 Cal.App.4th 537, 540.)

2. Sufficient Evidence Supports the Juvenile Court's Finding

Penal Code section 136.1, subdivision (b), makes it a crime to “attempt [ ] to prevent or dissuade another person who has been the victim of a crime ․ from doing any of the following ․ [¶] (1) Making any report of that victimization to any peace officer․  [¶] (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof.  [¶] (3) Arresting or causing or seeking the arrest of any person in connection with that victimization.”   Pursuant to Penal Code section 136.1, subdivision (c)(1), if one of the acts prohibited by subdivision (b) is done knowingly and maliciously with an implied threat of force or violence, the crime is a felony.   The offense is a specific intent crime.  (People v. Ford (1983) 145 Cal.App.3d 985, 989–990 [crime of dissuading a victim or witness requires specific intent that threats meant to affect the victim's or witness's complaint or testimony];  People v. Jones (1998) 67 Cal.App.4th 724, 727 [same];  People v. Brenner (1992) 5 Cal.App.4th 335, 339 [same].)

On appeal Donte has effectively abandoned his claim the gestures used (pointing at Jose and punching his fist into his other hand) did not impliedly threaten the use of force against Jose. (See People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [there is no talismanic requirement a defendant must say specific words to violate Pen.Code, § 136.1];  People v. Salvato (1991) 234 Cal.App.3d 872, 883 [entire interaction between the defendant and the victim or witness must be examined to determine whether a violation of Pen.Code, § 136.1 has occurred].)   Rather, Donte contends the evidence demonstrates any threat was made only with an intent to seek revenge or express anger, not to prevent Jose from reporting the robbery.¹  That report had already been made, Donte argues.   Accordingly, an essential element of the offense charged— the specific intent to prevent a future act of reporting—was absent.  (See People v. Ford, supra, 145 Cal.App.3d at pp. 989–990 [if defendant's statement was “a simple angry statement of impending revenge ․, the crime was not committed”].)

Donte's argument relies on an unduly cramped interpretation of the phrase “making any report.”   Giving a “ ‘plain and commonsense meaning’ ” to that term as used in Penal Code section 136.1, subdivision (b)(1), our colleagues in Division Six of this court in People v. Fernandez (2003) 106 Cal.App.4th 943, 948, explained, “In the context of reporting a crime, [a ‘report’] generally means notifying the authorities the crime has occurred and providing information about the offense.” ²  Although Jose had already notified Officer Beck and his partner about the robbery, it is a reasonable inference from the evidence presented at the jurisdiction hearing that he had not yet completed the task of providing information about the offense.   Only one of the perpetrators had been apprehended.   Additional details about the identity of the second robber, as well as the circumstances of the crime itself—that is, a further report by Jose to Officer Beck or other law enforcement officers—likely would be required.  (See People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3 [defendant's argument the witness could not be dissuaded from doing what she had already done was based upon the false premise the witness was not a potential future witness];  People v. Mendoza, supra, 59 Cal.App.4th at p. 1344 [same].)

As Donte argues, it might have been reasonable for the juvenile court to conclude he had acted only with the intent to seek revenge for an act already completed.   However, the evidence also supports the conclusion Donte intended by his threatening gestures to prevent any further report of the robbery by Jose, either while he was standing with Officer Beck shortly after the crime or at some future time.   It is not our function to reweigh that evidence.   (People v. Albillar (2010) 51 Cal.4th 47, 60 [reviewing court neither reweighs evidence nor reevaluates a witness's credibility].)

DISPOSITION

The order of the juvenile court is affirmed.

We concur:

FOOTNOTES

FN1. In contrast to Penal Code section 136.1, subdivision (b)(1), Penal Code section 140, subdivision (a), prohibits threatening to use force or violence against the victim of a crime because the victim provided assistance to a law enforcement officer.   Violation of this section may be punished as either a felony or a misdemeanor..  FN1. In contrast to Penal Code section 136.1, subdivision (b)(1), Penal Code section 140, subdivision (a), prohibits threatening to use force or violence against the victim of a crime because the victim provided assistance to a law enforcement officer.   Violation of this section may be punished as either a felony or a misdemeanor.

FN2. The Fernandez court rejected the People's argument that “making a report ․ to a judge” as used in Penal Code section 136.1, subdivision (b)(1), was sufficiently broad to include preliminary hearing testimony.   (People v. Fernandez, supra, 106 Cal.App.4th at p. 948 [“Section 136.1, subdivision (b)(1) is not a catchall provision designed to punish efforts to improperly influence a witness.   Rather, it is one of several contained within part I, title 7, chapter 6 of the Penal Code (§§ 132–140), which establishes a detailed and comprehensive statutory scheme for penalizing the falsification of evidence and efforts to bribe, influence, intimidate or threaten witnesses.”].).  FN2. The Fernandez court rejected the People's argument that “making a report ․ to a judge” as used in Penal Code section 136.1, subdivision (b)(1), was sufficiently broad to include preliminary hearing testimony.   (People v. Fernandez, supra, 106 Cal.App.4th at p. 948 [“Section 136.1, subdivision (b)(1) is not a catchall provision designed to punish efforts to improperly influence a witness.   Rather, it is one of several contained within part I, title 7, chapter 6 of the Penal Code (§§ 132–140), which establishes a detailed and comprehensive statutory scheme for penalizing the falsification of evidence and efforts to bribe, influence, intimidate or threaten witnesses.”].)

WOODS, J. JACKSON, J.