IN RE: EDUARDO D. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

I. INTRODUCTION

The minor, Eduardo D., appeals from an April 4, 2011 order declaring him a juvenile court ward.  (Welf. & Inst.Code, § 602.)   The juvenile court sustained an allegation of a delinquency petition filed on February 10, 2011, charging the minor with having made a criminal threat.  (Pen.Code, § 422.)   The juvenile court found the offense to be a felony and ordered the minor's existing camp commitment to remain in full force and effect.   The minor argues there was insufficient evidence of a criminal threat.   We affirm the wardship order.

II. FACTS

A. Prosecution Evidence

We view the evidence in the light most favorable to the adjudication.   (Jackson v. Virginia (1979) 443 U.S. 307, 319;  People v. Elliot (2005) 37 Cal.4th 453, 466;  Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908–909.)   At approximately 9:10 a.m. on November 1, 2010, Southeast High School teacher Terrence Vorwald was walking from the first to the second floor of the school's A building.   He observed the minor arguing with three other boys.   They should have been in class.   Mr. Vorwald told the students to go to class.   Defendant pushed one of the boys in the chest with both hands.   Mr. Vorwald repeated his direction that they go to class.   As they walked away, Mr. Vorwald heard the minor say, “We'll finish this at lunch, bitch.”   Mr. Vorwald directed the minor to proceed downstairs to the dean's office.   Mr. Vorwald testified, “When we got to the [first] floor, I said you have to go this way towards the dean's office and he told me to go fuck off and walked out of the building into the quad.”   Mr. Vorwald followed the minor.   He saw two teachers standing in the quad.   Mr. Vorwald told the teachers to go get security.   Meanwhile, the minor had entered the C building.   Mr. Vorwald followed, expecting the minor to have run away.   But the minor was waiting for Mr. Vorwald.   The minor asked Mr. Vorwald, “[W]hy you following me?”   The minor raised his hand to punch Mr. Vorwald in the head but stopped six inches away.   The minor reached into his pants pocket.   Mr. Vorwald thought the minor was looking for a weapon.   The minor said, “I'm going to find you.”   The minor then said:  “I'm going to fuck you up.   I'm going to get you, mother fucker.”   Mr. Vorwald felt threatened.   Mr. Vorwald testified:  “It was a serious thing.  [¶] ․ I thought he was going to beat me up.   Stab me, hurt my car․”  Mr. Vorwald believed he was being threatened.   The minor walked past Mr. Vorwald and went into the D building.   Mr. Vorwald looked for but did not see any security staff.   Mr. Vorwald followed the minor into the D building.   The minor then ran down the hallway.   Mr. Vorwald went into the dean's office to report what had happened.   He filed an official complaint with the school police officer.

B. Defense Evidence

The minor testified that when he was directed to the dean's office, he said, “[N]o, I'm going to go to my class․”  Mr. Vorwald continued to follow the minor.   The minor testified, “ ․ I started cussing [at him] and I said to stop following me and he said go to the dean's office and I said, I am going to go to my class.”   The minor testified:  “ ․ I told him to stop following me, [and] he said, I'm going to walk with you and I said, no, I know where my class is.”   The minor denied raising his hand or throwing a punch toward Mr. Vorwald's head.   The minor said to Mr. Vorwald, “If you keep following me, I am going to fuck you up.”   After that, the minor ran off.   The minor denied wanting Mr. Vorwald to be frightened.   But the minor admitted that he “got mad” and had “anger problems.”

III. DISCUSSION

A. Overview

The minor argues there was insufficient evidence to support the juvenile court's true finding.   More specifically, the minor contends the prosecution failed to demonstrate that:  Mr. Vorwald suffered sustained fear and any statement conveyed a gravity of purpose.  Penal Code section 422 states:  “Any 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 ․ is to be taken as a threat, even if there is no intent of actually carrying it out, 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”  (Italics added.)

Our Supreme Court enumerated the five elements of a criminal threat in People v. Toledo (2001) 26 Cal.4th 221, 227–228:  “In order to prove a violation of [Penal Code] 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.   (See generally People v. Bolin (1998) 18 Cal.4th 297, 337–340 & fn. 13.)”   (Accord, In re George T. (2004) 33 Cal.4th 620, 630;  People v. Wilson (2010) 186 Cal.App.4th 789, 805.)

We apply the following standard of review:  “In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt.   In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment․  The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.  (People v. Hayes (1990) 52 Cal.3d 577, 631;  People v. Johnson (1980) 26 Cal.3d 557, 576.)”  (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted;  see also People v. Gonzales (2011) 51 Cal.4th 894, 941;  People v. Wilson (2008) 44 Cal.4th 758, 806.)   Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  (Jackson v. Virginia, supra, 443 U.S. at p. 319;  People v. Foster (2010) 50 Cal.4th 1301, 1348;  People v. Romero (2008) 44 Cal.4th 386, 399.)   Our Supreme Court has held, “Reversal on [the] ground [of insufficient evidence] is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the adjudication].’ ”  (People v. Bolin, supra,18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)   The Court of Appeal has held, “The trier of fact, not the appellate court, must be convinced of the minor's guilt, and if the circumstances and reasonable inferences justify the trier of fact's findings, the

B. Sustained Fear

Penal Code section 422 does not define sustained fear.   However, in People v. Allen (1995) 33 Cal.App.4th 1149, 1156, Division Three of the Court of Appeal for this appellate district held:  “Defining the word ‘sustained’ by its opposites, we find that [sustained] means a period of time that extends beyond what is momentary, fleeting, or transitory․  The victim's knowledge of [the] defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear.  (People v. Garrett [ (1994) ] 30 Cal.App.4th 962, 967.)”  (Accord, People v. Wilson, supra, 186 Cal.App.4th at p. 808;  People v. Fierro (2010) 180 Cal.App.4th 1342, 1349;  People v. Mendoza (1997) 59 Cal.App.4th 1333, 1342.)   The statutory language refers to a state of mind and describes a human emotion.   (People v. Fierro, supra, 180 Cal.App.4th at p. 1349.)

Here, the minor demonstrated a propensity for violence in Mr. Vorwald's presence by pushing a fellow student.   In addition, the minor threw a punch at Mr. Vorwald's head.   The minor searched through his pockets.   This caused Mr. Vorwald to believe the minor was reaching for a weapon.   Mr. Vorwald followed the minor for some time:  from the second floor of the A building;  down the stairs to the first floor;  out through the quad;  into the C building;  and finally into the D building.   Mr. Vorwald was sufficiently concerned that he paused to ask fellow teachers to call security.   Instead of taking the opportunity to run away, the minor waited for Mr. Vorwald and then made a threat.   Mr. Vorwald was afraid and felt threatened by the minor.   Mr. Vorwald wasted no time in reporting the incident and filing a formal report with law enforcement personnel.   This was substantial evidence the minor's words and actions caused Mr. Vorwald reasonably to be in sustained fear.

C. Gravity Of Purpose

The minor argues there was no substantial evidence his statement conveyed a gravity of purpose;  he simply made an angry statement and swung his fist, but nothing more.   The minor argues there was no history of disagreement or aggression with Mr. Vorwald.   The “gravity of purpose” language was included in Penal Code section 422 as enacted in 1988.  (Stats.1988, ch. 1256, § 4.) It both defines the crime and sets the constitutional standard for distinguishing criminal threats from constitutionally protected speech.   (People v. Wilson, supra, 186 Cal.App.4th at p. 804;  In re Ryan D. (2002) 100 Cal.App.4th 854, 861–862.)   As the Court of Appeal for the Fifth Appellate District explained in People v. Wilson, supra, 186 Cal.App.4th at page 804, “[Including the language requiring] that the threat be ‘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’—was not intended to impose a specific time limitation upon the speaker's intent to execute the threat, but instead to avoid First Amendment challenges and not criminalize constitutionally protected speech.”   In the case of In re M.S. (1995) 10 Cal.4th 698, 710, our Supreme Court held, “When a reasonable person would foresee that the context and import of the words will cause the listener to believe he or she will be subjected to physical violence, the threat falls outside First Amendment protection.”  (Accord, People v. Toledo, supra, 26 Cal.4th at p. 233;  People v. Wilson, supra, 186 Cal.App.4th at p. 804.)   As defendant impliedly asserts, Penal Code section 422 was not intended to punish angry utterances.   The Court of Appeal has explained:  “Section 422 ‘was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others.  [Citation.]’  (People v. Felix (2001) 92 Cal.App.4th 905, 913.)   The statute ‘does not punish such things as “mere angry utterances or ranting soliloquies, however violent.”   [Citation.]’  ( [In re ] Ryan D., supra,100 Cal.App.4th at p. 861.)   Instead, a criminal threat ‘is a specific and narrow class of communication,’ and ‘the expression of an intent to inflict serious evil upon another person.   [Citation.]’  (Id. at p. 863.)”  (People v. Wilson, supra, 186 Cal.App.4th at p. 805.)

The language “gravity of purpose” cannot be considered in isolation.  (See People v. Bolin, supra, 18 Cal.4th at pp. 339–340;  People v. Stanfield (1995) 32 Cal.App.4th 1152, 1158.)   In People v. Bolin, supra, 18 Cal.4th at pages 337–340, our Supreme Court discussed the use of the word “unconditional” in Penal Code section 422.   Our Supreme Court held the reference to an “unconditional” threat was not absolute.   Our Supreme Court observed:  “Moreover, imposing an ‘unconditional’ requirement ignores the statutory qualification that the threat must be ‘so ․ unconditional ․ as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution ․’  ( [Pen.Code,] § 422, italics added.)  ‘The use of the word “so” indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances as to convey gravity of purpose and immediate prospect of execution to the victim.’  (People v. Stanfield, supra, 32 Cal.App.4th at p. 1157.)”  (People v. Bolin, supra, 18 Cal.4th at pp. 339–340, orig. italics;  accord, In re George T., supra, 33 Cal.4th at p. 1016.)

We must look to the totality of the circumstances.  (People v. Bolin, supra, 18 Cal.4th at pp. 339–340;  accord, e.g., People v. Gaut (2002) 95 Cal.App.4th 1425, 1431;  People v. Martinez (1997) 53 Cal.App.4th 1212, 1218.)   As the Court of Appeal for the Third Appellate District has held:  “[T]he law does not permit ․ a myopic examination of the evidence [showing the requisite gravity of purpose].   Rather, we must look to all of the surrounding circumstances, including the words that were [used], to determine if the [trier of fact] could have reasonably found that the threat carried the requisite gravity of purpose․”  (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433.)

Defendant asserts this case is controlled by In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.)   The facts in Ricky T. were as follows:  “[A]ppellant, a 16–year–old student, left Redwood High School teacher Roger Heathcote's class to use the restroom.   When appellant returned, he found the classroom door locked and pounded on it.   Heathcote opened the door, which opened outwardly, hitting appellant with it.  [¶] Appellant became angry, cursed Heathcote and threatened him saying, ‘I'm going to get you.’   Heathcote felt threatened and sent appellant to the school office.   Heathcote said he felt physically threatened by appellant;  however, he said appellant did not make a specific threat or further the act of aggression․  [¶] Officer Steaveson interviewed appellant at the school dean's office the following day.   Appellant told Officer Steaveson that he was involved in a verbal altercation with Heathcote because he felt ‘disrespected by the door hitting him in the head.’   He admitted speaking angrily, but denied threatening Heathcote.   Appellant also admitted ‘getting in [Heathcote's] face,’ but did not mean to sound threatening.   He said that his actions were not appropriate and he apologized for the incident.  [¶] ․ [O]ne week later, Officer Steaveson contacted appellant [again] ․ Appellant ․ said that on the day of the incident, he told Heathcote ‘I'm going to kick your ass.’   He added, however, that he never made any physical movements or gestures toward Heathcote to further the threat.”  (Id. at pp. 1135–1136.)

In Ricky T., the Court of Appeal for the First Appellate District, Division Four, held there were no circumstances corroborating a true threat.   The Court of Appeal noted the police were not called until the day following the incident and they waited an additional week before interviewing the minor a second time.  (In re Ricky T., supra, 87 Cal.App.4th at p. 1138.)   The Court of Appeal noted there was no prior history of disagreement or hostility between the minor and his teacher.  (Ibid.) The court further held:  “Appellant's intemperate, rude, and insolent remarks hardly suggest any gravity of purpose;  there was no evidence offered that appellant's angry words were accompanied by any show of physical violence—nothing indicating any pushing or shoving or other close-up physical confrontation.   Heathcote told Officer Steaveson that appellant had ‘not ․ further[ed] the act of aggression.’   There is no evidence that appellant exhibited a physical show of force, displayed his fists, damaged any property, or attempted to batter Heathcote or anyone else.   [¶] ․ [T]here was no evidence of any circumstances occurring after appellant's ‘threats' which would further a finding of a terrorist threat․  [¶] ․ Here, the circumstances documented in the two police reports did not support a conclusion that appellant's ‘threat’ was a true threat within the meaning of [Penal Code] section 422.”  (Id. at pp. 1138–1139.)   Moreover, the Court of Appeal noted, the trial court had acquitted the minor of a Penal Code section 71 charge.  Penal Code section 71 proscribes threats to inflict injury on a school employee where it reasonably appears to the recipient of the threat that the threat could be carried out.¹

In re Ricky T. is distinguishable.   We conclude that in the totality of the circumstances, substantial evidence supports the juvenile court's true finding.   Unlike the minor in the case of Ricky T., the present minor did not make just one angry statement unaccompanied by any physical threat.   In this case, the minor acted aggressively toward and physically and verbally threatened a fellow student.   When directed to the dean's office, the minor told Mr. Vorwald to “go fuck off.”   The minor waited when Mr. Vorwald paused to request help and then asked, “Why [are] you following me?”   The minor physically threatened to punch Mr. Vorwald.   The minor reached into his pants pockets and said:  “I'm going to find you”;  “I'm going to fuck you up”;  and “I'm going to get you, mother fucker.”   Mr. Vorwald believed the minor meant to inflict harm.   Mr. Vorwald immediately reported the incident.   The minor's words and his actions, considered together, constitute substantial evidence of a threat that was “so unequivocal, unconditional, immediate, and specific as to convey” to Mr. Vorwald a gravity of purpose.  (Pen.Code, § 422.)

IV. DISPOSITION

The wardship order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Prior to its amendment in 2011 (Stats.2011, ch. 15, § 236 op. contingent) Penal Code section 71 stated:  “Every person who, with intent to cause, attempts to cause, or causes, any officer or employee of any public or private educational institution or any public officer or employee to do, or refrain from doing, any act in the performance of his duties, by means of a threat, directly communicated to such person, to inflict an unlawful injury upon any person or property, and it reasonably appears to the recipient of the threat that such threat could be carried out, is guilty of a public offense punishable as follows:  [¶] (1) Upon a first conviction, such person is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.  [¶] (2) If such person has been previously convicted of a violation of this section, such previous conviction shall be charged in the accusatory pleading, and if such previous conviction is found to be true by the jury, upon a jury trial, or by the court, upon a court trial, or is admitted by the defendant, he is punishable by imprisonment in the state prison.  [¶] As used in this section, “directly communicated” includes, but is not limited to, a communication to the recipient of the threat by telephone, telegraph, or letter.”.  FN1. Prior to its amendment in 2011 (Stats.2011, ch. 15, § 236 op. contingent) Penal Code section 71 stated:  “Every person who, with intent to cause, attempts to cause, or causes, any officer or employee of any public or private educational institution or any public officer or employee to do, or refrain from doing, any act in the performance of his duties, by means of a threat, directly communicated to such person, to inflict an unlawful injury upon any person or property, and it reasonably appears to the recipient of the threat that such threat could be carried out, is guilty of a public offense punishable as follows:  [¶] (1) Upon a first conviction, such person is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.  [¶] (2) If such person has been previously convicted of a violation of this section, such previous conviction shall be charged in the accusatory pleading, and if such previous conviction is found to be true by the jury, upon a jury trial, or by the court, upon a court trial, or is admitted by the defendant, he is punishable by imprisonment in the state prison.  [¶] As used in this section, “directly communicated” includes, but is not limited to, a communication to the recipient of the threat by telephone, telegraph, or letter.”

MOSK, J. KRIEGLER, J.