In re Deonte W.

Filed 3/6/07 In re Deonte W. CA4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.

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Deonte W. (appellant), a minor, appeals from a juvenile court order sustaining a Welfare and Institutions Code section 602 petition charging him with threatening a public employee in violation of Penal Code section 71.^[1] He contends that the evidence was insufficient to establish a violation of section 71 because the teacher who heard his comment about stabbing a security officer did not take it seriously and described appellants demeanor as playing.

The California Supreme Court has stated that a violation of section 71 requires the creation of a reasonable belief in the recipient that the threat would be carried out. In this case, the evidence does not show that the teacher-recipient had such a belief. Consequently, we conclude that the evidence was insufficient to establish appellant made a true threat that violated section 71.

Therefore, the true finding on the count that alleged a violation of section 71 is reversed. The findings on all other counts are affirmed. The matter is remanded for the entry of a new dispositional order.

FACTS

Appellant became a dependent ward of the court when he was thirteen pursuant to a Welfare and Institutions Code section 300 petition filed in April 2003. The petition alleged that appellants mother (1) beat him with her fist, a belt, an extension cord and a coaxial cable, (2) used cocaine in his presence, and (3) used marijuana. The petition also alleged appellant was suffering serious emotional damage as evidenced by (1) untoward aggressive behavior to others and himself, (2) several suspensions from school, (3) often being disrespectful and failing to follow directions at school, and (4) often being sent home from school for misbehavior.

On April 18, 2006, appellant was visiting a classroom where Russell Grimes III, an instructor, taught a high school class. Appellant was not taking the class, and when the tardy bell rang Mr. Grimes told him to go to class. Appellant did not leave. Mr. Grimes asked a student to look outside the classroom for a security officer to come and get appellant so appellant could go to class.

Mr. Grimes again told appellant to leave the classroom, but appellant did not do so. Mr. Grimes said that, if appellant did not leave, he probably would have security come and get him. Mr. Grimes testified that appellant responded by making the comment that he would stab the security if he came. Mr. Grimes described the exchange with appellant as follows:

I mentioned to him to leave, you know. I kind of jokingly said, well, I will get security on him. And I think, you know, he was basically not being honest about the stabbing thing. But it was still represented in front of us. And [security] had told him to leave, and he justhe s[at] there and like you-cant-tell-me-what-to-do type thing.

After appellant made the stabbing comment, Karen Wallace, a security officer for the school, arrived at the classroom. Appellant was seated on an air unit next to the door when she arrived. Security Officer Wallace spoke with appellant and asked him to leave. Appellant refused. After speaking with other students in the classroom, Security Officer Wallace asked appellant if he had said he was going to stab her. Appellant told her no.^[2] Security Officer Wallace again asked appellant to leave the classroom and he refused a second time.

Security Officer Wallace called for backup and Alan Wyatt, another security officer, arrived. When Security Officer Wyatt walked into the classroom, Security Officer Wallace first noticed that appellant was holding a pen in his hand down by his side. The pointed end of the pen was pointed behind appellant.

Security Officer Wyatt spoke with appellant and walked up to him and said that he needed to leave. Appellant put his hand in Security Officer Wyatts face. Mr. Grimes testified appellants hand was not in a fist, but was flat, like a get-out-of-my-face type thing. Mr. Grimes testified that appellant did not touch the officer with his hand, but the officer pulled the hand down and a struggle began between the two.

Security Officer Wyatt testified that after he arrived he tried to convince appellant into going outside the classroom to talk and that appellant would not go. While they were talking, appellant placed his hand palm up about an inch away from Security Officer Wyatts face and told him to just get the fuck away from me. Security Officer Wyatt grabbed appellants wrist and tried to take it behind appellants back. Security Officer Wyatt described the ensuing struggle as follows:

We ended up tussling around, spinning around. The hand with the ink pen came up, and I went to grab it toas I went to grab it, the pen jabbed me in the hand and went up along my thumb. And I was able to grasp it and throw it over my shoulder. And then I was just trying to get him to comply. I lost my grip on his hand, and his sweatshirt came up over his head. And I wasI knew that pretty much at this point that I wasnt going to be able to gain control of him. It justwe just spun around in circles, basically. And I never could get a firm grasp on him.

After the incident, Security Officer Wyatt noticed that the hand he used to grab appellants pen was marked with blue ink in a bright red track that went from the web of his hand up to his wrist. On cross-examination, when asked if appellant said anything to make him believe that appellant intentionally struck him with the pen, Security Officer Wyatt replied: No. I figured it was just the tussle, basically. He also testified that appellant had not threatened him in any way.

Mr. Grimes testified that after the scuffle, they both calmed down and they finally walked out.

Appellants Case

Appellant testified that he thought Mr. Grimes was joking when he asked another student to call security. He also testified that I said if she comes I will stab her. And Mr. Grimes understood it as a nonthreatening manner. When asked what he had in mind when he made that statement, appellant stated, It was a joke. It was nothing more.

Appellant confirmed that he did not leave the classroom when asked to do so. He also testified that he never intended to strike Security Officer Wyatt with the pen or with his fist.

PROCEEDINGS

On May 15, 2006, a petition against appellant was filed under Welfare and Institutions Code sections 602 and 777. Counts 1 and 2 of the petition alleged that appellant, then 16 years old, committed two felony violations of section 71 by threatening a school officer or employee. Count 3 alleged the misdemeanor offense of battery of a school employee. Count 4 alleged that appellant violated the terms of his probation.

On June 27, 2006, the court conducted a contested jurisdictional hearing. At the close of the prosecutions case, appellant moved to dismiss all counts. The juvenile court dismissed count 2 (the second violation of  71) and reduced count 3 to a misdemeanor assault under section 240. After the presentation of evidence at the jurisdictional hearing, the juvenile court found that (1) appellant violated section 71, (2) appellant unlawfully assaulted Security Officer Wyatt in violation of section 240, and (3) the allegation of a probation violation had been proven.

The dispositional hearing was conducted on July 12, 2006. The juvenile court found the available confinement time was three years six months, less 18 days for time served. The juvenile court continued appellants probation, subject to specific terms and conditions, and committed appellant to Camp Erwin Owen. The juvenile court also ordered that, after appellant completed the camp, he be placed in juvenile hall pending suitable home placement.

On July 13, 2006, appellant filed a timely notice of appeal.

DISCUSSION

I. Standard of Review

When an appellate court considers the sufficiency of the evidence supporting a juvenile court judgment that sustained the criminal allegations of a petition made under section 602 of the Welfare and Institutions Code, it applies 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 that standard of review, appellate courts review the entire record in the light most favorable to the prosecution, which means they presume the existence of every fact the trier could reasonably infer from the evidence in support of the judgment. (People v. Shakhvaladyan (2004) 117 Cal.App.4th 232, 236, disapproved on other grounds in People v. Hudson (2006) 38 Cal.4th 1002, 1011, fn. 3.) The judgment is upheld if the record contains evidence that is reasonable, credible, and of solid value, from which any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolden (2002) 29 Cal.4th 515, 553.) Restated, the test is whether substantial evidence supports the decision. (People v. Shakhvaladyan, supra, at p. 236.)

II. Threats under Section 71

A. Statutory Language

Appellant challenges the sufficiency of the evidence regarding the finding that he violated section 71. The pertinent parts of that section provide:

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 .

Recently, the Sixth Appellate District listed the essential elements of a violation of section 71 as follows:

(1) A threat to inflict an unlawful injury upon any person or property; (2) direct communication of the threat to a public officer or employee; (3) the intent to influence the performance of the officer or employees official duties; and (4) the apparent ability to carry out the threat. [Citations.] (In re Ernesto H. (2004) 125 Cal.App.4th 298, 308.)

The Sixth Appellate District also recognized that a true threat includes those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. (In re Ernesto H., supra, 125 Cal.App.4th at p. 310, quoting Virginia v. Black (2003) 538 U.S. 343, 359.)

The purpose of section 71 is to prevent threatening communications to public officers or employees designed to extort their action or inaction. (In re Ernesto H., supra, 125 Cal.App.4th at p. 308.)

B. Contentions of the Parties

The parties disagree about the meaning of the fourth element of a violation of section 71.

On one hand, appellant asserts: There is more to the fourth element than just apparent ability. Apparent ability is inextricably connected to the reasonable belief of the recipient.^[3] Appellant asserts that Mr. Grimes^[4]did not take the statement about stabbing the security officer seriously and considered it as playing. Thus, appellant argues, the evidence was insufficient to establish a violation of section 71.

On the other hand, the Attorney General contends: [S]ection 71 does not require that it reasonably appeared to Grimes that appellant would carry out his threat of stabbing a security officer; it only requires that it reasonably appear to Grimes that appellant could carry out the threat. The Attorney General further contends that substantial evidence supports the courts implicit finding that it reasonably appeared to Grimes that appellant could carry out his threat to stab a security officer.

The foregoing contentions of the parties show their disagreement over what must be proven regarding the reasonable belief of the recipient of the threat.

C. Case Law

1. Zardies and Hopkins decisions

The Attorney Generals view of section 71 is derived from two decisions published by the Courts of Appeal approximately 23 and 30 years ago.

In In re Zardies B. (1976) 64 Cal.App.3d 11 (Zardies), the minor and other boys were shouting outside a junior high classroom. A teacher asked them to leave. The minor went into the classroom and again was asked to leave. He faced the teacher at a foots distance and angrily said that he would slap [the teachers] face in. (Id. at p. 13.) Although [the teacher] did not think Zardies would carry out his threat, she thought he could have done so if he had wanted to. (Ibid.)

Zardies contended that under section 71 the prosecution was required to prove it reasonably appeared he would carry out the threat rather than that he could carry it out. (Zardies, supra, 64 Cal.App.3d at p. 14.) The court stated that the statutory requirement clearly states the requirement as the appearance that the threat could be carried out. (Ibid.) As a result, the court upheld the determination that Zardies conduct violated section 71.

Subsequently, the First Appellate District discussed the Zardies decision and stated that the court concluded that [section 71] did not require the People to prove that it reasonably appeared that Zardies would carry out the threat, but only that it appeared that he could carry it out. (People v. Hopkins (1983) 149 Cal.App.3d 36, 43.) The First Appellate District concluded that section 71 defined a specific intent crime. (Ibid.) The intent required was not the intent to carry out the threat, but the intent to cause the public employee or official to do or refrain from doing his or her official duties. (Ibid.; accord, People v. Tuilaepa (1992) 4 Cal.4th 569, 590 (Tuilaepa) [defendants requisite intent concerned interfering with the performance of official duties].)

Thus, the statements made in Zardies and Hopkins support the Attorney Generals position that the prosecution was only required to show that it appeared appellant could stab the security officer.

2. Decisions of California Supreme Court

In contrast, the California Supreme Court has made statements supporting appellants position that, for purposes of section 71, the recipient of the threat must have a reasonable belief that the accused would carry out the threat. These decisions postdate the Zardies and Hopkins decisions.

First, in Tuilaepa, supra, 4 Cal.4th 569, Justice Baxter stated:

On the merits, we disagree with the Attorney Generals claim that the threats violated section 71, which prohibits certain threats against public employees. There was no substantial showing that defendant harbored the requisite intentinterfering with the performance of official dutiesor that his statements had the requisite effectcreating a reasonable belief the threat would be carried out. (Id. at p. 590, fn. omitted, italics added.)

In Tuilaepa, the court concluded that the requisite effect was not established by the evidence. The court supported this conclusion by observing that the three recipients of the defendants statements indicated they did not actually fear for their safety. (Tuilaepa, supra, 4 Cal.4th at p. 590.)

Second, in People v. Monterroso (2004) 34 Cal.4th 743, the defendant challenged his death sentence and argued, among other things, that an incident at the Orange County jail was improperly admitted as unadjudicated criminal activity under section 190.3, factor (b). The California Supreme Court determined the activity violated section 71 and therefore was properly admitted as evidence of an aggravating factor.

In Monterroso, the defendant complained about not receiving a lunch tray. The deputy who supervised the distribution of lunch trays at the jail refused to provide the defendant a different tray. The defendant flew into a rage and screamed repeatedly that he was going to kill the deputy with a shank the next chance he got. (People v. Monterroso, supra, 34 Cal.4th at p. 775.) The deputy took the threat seriously and the California Supreme Court concluded that the incident was properly admitted as an aggravating factor. To support the conclusion that the incident was admissible, Justice Baxter made three points. First, the statement was not a random outburst to a patrolling guard. (Id. at p. 776.) Second, the statement plainly was related to the deputys performance of his official duties concerning tray distribution. (Ibid.) Third, the deputy did not believe the threat was an idle one (cf. Tuilaepa, supra, 4 Cal.4th at p. 590 [the recipients of these threats indicated they did not actually fear for their safety]), since inmates had been able to manufacture shanks and other weapons despite the jails best efforts to prevent it and defendants rage was unmistakable. [Citation.] (Monterroso, supra, at p. 776.)

Finally, the most recent case where the California Supreme Court considered a defendants contention that the evidence was insufficient to establish a violation of section 71 is People v. Dunkle (2005) 36 Cal.4th 861.^[5] The court addressed both (1) the reasonableness of the recipients belief that the defendant would carry out the threat and (2) the reasonableness of the recipients belief that the defendant could carry out the threat. (Dunkle, supra, at pp. 918-920.)

In Dunkle, a nurse who worked at the jail delivered medication to the defendant. (People v. Dunkle, supra, 36 Cal.4th at p. 918.) At the time, the defendant was behind a locked door in the lockup area of the jail. (Ibid.) When the defendant refused to take his prescribed psychotropic medication, the nurse asked why, telling him that the psychiatrist would want to know. (Ibid.) The defendant told her, in a hostile manner, that if she talked to his psychiatrist he would kill her. (Ibid.)

The defendant asserted, among other things, there was no substantial evidence that [the nurse working at the jail] reasonably could have believed he would carry out the threat or actually believed he intended to kill her, particularly because he was then confined behind a locked door . (People v. Dunkle, supra, 36 Cal.4th at p. 918.)

With respect to the recipients actual belief, the court stated that the record does not lack evidence that nurse Beck actually believed he would try to kill her: in fact, she testified she took the threat seriously and reported it to her supervisor and in the jail log. (People v. Dunkle, supra, 36 Cal.4th at p. 919.) The court then addressed the reasonableness of this belief.

The sufficiency of the proof of one element of the offensethat of the reasonableness of the recipients belief that the threat would be carried outis a closer question because, when defendant uttered the threat, he was behind a locked door and thus could not at that moment harm nurse Beck. This circumstance is not dispositive, however. (Id. at p. 919.)

The court concluded the inability to carry out the threat at that moment was not dispositive because neither the First Amendment nor the statutory language in section 71 requires the defendant to have the capability to inflict the unlawful threatened injury immediately.^[6](People v. Dunkle, supra, 36 Cal.4th at pp. 919-920.) In Dunkle, because the reasonableness of the recipients belief that the defendant would carry out the threat depended upon his capability to carry it out, the court treated that question as the equivalent of whether the defendant could carry out the threat. (Id. at p. 920.) The court then stated:

Nevertheless, whether the record in this case contains sufficient evidence that nurse Beck could have reasonably believed defendant could carry out his threat is arguable. The prosecutor suggested to the jurors that jail inmates on occasion leave their cells and meet with nurses, but as defendant points out, there was no testimony establishing he ever had physical contact with Beck or any other nurse dispensing psychotropic medication, or any evidence of circumstances under which he might have been outside his cell, unrestrained, in a place where he could have attacked Beck. (Ibid.)

As a result, the court stated that whether all the elements of a violation of section 71 had been proven was an open question and proceeded to resolve the case on alternate grounds. Specifically, any error in instructing the jury regarding the elements of a violation of section 71 was regarded as harmless error because of the great weight of the aggravating evidence against [the defendant]. (People v. Dunkle, supra, 36 Cal.4th at p. 920.)

The foregoing decisions of the California Supreme Court clearly establish that a violation of section 71 requires proof that the statement created a reasonable belief in the recipient that the statement would be carried out. Furthermore, the cases in which the California Supreme Court indicated that the requirement was proven involve evidence that the recipient took the threat seriously or actually felt afraid because of the threat.

Next we consider the source of the requirement that the statement created a reasonable belief in the recipient that it would be carried out. The text of section 71 does not reference the belief of the recipient of the purported threat or the reasonableness of that belief. Nevertheless, the requirement exists because it is inherent in the definition of a true threat, which is affected by the constitutional limitations imposed by the First Amendment. (See Virginia v. Black, supra, 538 U.S. at pp. 358-359 [a true threat includes a statement made to communicate a serious expression of intent to commit an unlawful act of violence to an individual or group].) The following quote from Monterroso illustrates this point:

As long as the threat reasonably appears to be a serious expression of intention to inflict bodily harm [citation] and its circumstances are such that there is a reasonable tendency to produce in the victim a fear that the threat will be carried out, a statute proscribing such threats is not unconstitutional for lacking a requirement of immediacy or imminence. (People v. Hines [(1997)] 15 Cal.4th [997,] 1061, quoting In re M.S. (1995) 10 Cal.4th 698, 714 .) (People v. Monterroso, supra, 34 Cal.4th at p. 776.)

D. Conclusion

Based on the three California Supreme Court opinions that postdate the Zardies and Hopkins decisions, we are compelled to conclude that a violation of section 71 is not established unless the evidence shows the recipient had a reasonable belief that the accused would carry out the threatthat is, took the threat seriously. (Tuilaepa, supra, 4 Cal.4th at p. 590.)

III. Sufficiency of Evidence Presented

Appellant argues that his comment that he would stab the security officer if she came was not taken seriously by Mr. Grimes, who testified that he did not consider the comment as honest. The Attorney General does not address directly whether Mr. Grimes took the comment seriously, but contends a violation was established because substantial evidence supports the courts implicit finding that it reasonably appeared to Grimes that appellant could carry out his threat to stab a security officer.

One reason that Mr. Grimes did not take the stabbing comment seriously was that immediately before Mr. Grimes had kind of jokingly said, well, I will get security on [appellant]. Also, Mr. Grimes described appellants physical demeanor at the time of the comment by testifying that appellant was sitting on an air unit and it wasnt aggressive, but it was playing, just saying you-are-not-going-to-make-me-move type thing.

Under the circumstances of this case, there is no question that appellant expressed an intent to commit an act of unlawful violence when he said he would stab the security officer if she came. The sole question concerning whether appellant made a threat is whether he communicated a serious expression of intent. Section 71 is designed to prohibit plausible threats, and to ignore pranks, misunderstandings, and impossibilities. The statute is designed to deter the culprit who intends his threat to be taken seriously. [Citation.] (People v. Zendejas (1987) 196 Cal.App.3d 367, 378-379.)

The facts of this case contrast sharply with the facts of Ernesto H., where the physical education teacher testified that the minor was serious about his comment and was very upset at the time he made it. Also, the teacher told police he actually feared for his safety and believed that the minor might retaliate against him in the future. (In re Ernesto H., supra, 125 Cal.App.4th at p. 311.)

In addition, appellants emotions and physical posture when he made the stabbing comment are different from those of the minor in Zardies, supra, 64 Cal.App.3d 11. In that case, the minor faced the teacher at a foots distance and angrily said that he would slap [the teachers] face in. (Id. at p. 13.)

We conclude that the evidence does not establish appellants statement had the requisite effectnamely, that the recipient, Mr. Grimes, reasonably believed that appellant would carry out his statement that he would stab security if she came. Thus, appellant did not make a threat to Mr. Grimes for purposes of section 71.

IV. Exceptional Educational Needs of Appellant

Appellant argues that the juvenile court abused its discretion in making the dispositional order because it did not consider whether he had exceptional educational needs. Specifically, appellant contends that the juvenile courts finding that he was a very smart, capable person who had not been applying himself at school is not supported by the record, and an educational assessment should have been conducted.

In addition, appellants opening brief argues that this claim should be addressed by this court, rather than deemed waived or forfeited.

The Attorney General contends that the record contains sufficient evidence that appellants poor performance in school was caused by behavioral problems and not any sort of mental or learning disability. In addition, the Attorney General asserts that the dispositional order confining appellant to a camp was appropriate to impress upon appellant the seriousness of misconduct yet does not subject the appellant to more serious confinement. Thus, such an order would make the appellant aware that even more serious consequences may follow future misconduct.

The true finding on the felony count will be reversed and this matter remanded for the entry of a new dispositional order. In that proceeding, appellant will have an opportunity to explicitly present to the juvenile court his argument that an educational assessment should be done before a new dispositional order is entered. Therefore, we need not decide whether appellant waived or forfeited that argument during the initial dispositional proceeding.

DISPOSITION

The true finding on count 1 is reversed. The true findings on counts 3 and 4 are affirmed. The matter is remanded to the juvenile court to enter a new dispositional order.

DAWSON, J.

WE CONCUR:

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VARTABEDIAN, Acting P.J.

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CORNELL, J.

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^[1]All subsequent statutory references are to the Penal Code unless otherwise indicated.

^[2]Later during direct examination Security Officer Wallace testified that she asked appellant about the stabbing comment after she asked a male student about it and that appellant replied, yeah, I said it.

^[3]This quote from appellants opening brief appears verbatim in a May 28, 1992, decision of the Second Appellate District that the California Supreme Court ordered depublished. We consider the merits of this argument without regard to its source or the order to depublish. (See Cal. Rules of Court, rule 8.1125(d) [depublication does not imply the result or law stated in the opinion was correct or incorrect].)

^[4]Because neither security officer was present when the stabbing comment was made, appellant contends Mr. Grimes was the only recipient and, therefore, only his reasonable belief is relevant to establishing a violation of section 71.

^[5]In Dunkle, the defendant had been convicted of two first degree murders. The section 71 violation discussed was presented during the penalty phase as aggravating evidence under section 190.3, factor (b).

^[6]The court ruled that a statute criminalizing threats does not run afoul of the First Amendment even if it does not contain a requirement of immediacy or imminence so long as the statute required a specific intent and a present or apparent ability to carry out the threat. (People v. Dunkle, supra, 36 Cal.4th at p. 919.)