In re Juan R.
Filed 10/16/06 In re Juan R. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re JUAN R., a Person Coming Under the Juvenile Court Law. | B189310 (Los Angeles County Super. Ct. No. NJ20918) |
THE PEOPLE, Plaintiff and Respondent, v. JUAN R., Defendant and Appellant. |
APPEAL from an order of the Los Angeles County Superior Court,
John H. Ing, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed as modified.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Juan R. (the minor) appeals from the order of wardship entered after a finding he had made criminal threats. The juvenile court ordered camp-community placement and set the maximum confinement period as three years. The minor contends the evidence was insufficient to support the finding and two probation conditions should be modified. We affirm the order as modified.
FACTUAL AND PROCEDURAL BACKGROUND
The district attorney filed a petition under Welfare and Institutions Code section 602 alleging that “[o]n or about” October 18, 2005, the then 17-year-old minor made criminal threats to Adriana M. Before the adjudication hearing commenced, the juvenile court granted the People’s motion to amend the alleged date of the offense by interlineation to read “on or about October 18, 2005 to January 1, 2006.”
The evidence at the adjudication hearing was after 18 months of dating the minor, then 16-year-old Adriana M. was tired of his bouts of jealousy and distrust. In early October 2005, she told the minor in a telephone conversation she no longer wanted to date him. The minor became angry and told her if she “went out with anybody else he would kill [her]” or that “[he] had rather see [her] dead than with anyone else.” Thereafter Adriana M. was afraid to leave her home unless accompanied by family members, fearing the minor might hurt her. Adriana M. asked the minor to stop telephoning her, but he continued to call to pressure her to restart the relationship or to inquire whether she was dating someone else. In November 2005, Adriana M. reported to police the minor had threatened her. The minor continued to telephone Adriana M., although less often; and upon learning of Adriana M.’s plans to move away, the minor told his mother he “wanted to take [Adriana M.] with him.”
In January 2006, Adriana M. encountered the minor at a store, and he insisted on seeing her on his birthday, January 7, 2006. She refused and the minor responded “‘he’ll do it his way’” and left. Adriana M. did not know what the minor had meant, but she feared if the minor were to find her, he would force her to remain with him for some time. Over the months, the minor had frightened Adriana M. into thinking he might cause her harm.
The minor neither testified nor presented other evidence in his defense.
After denying the minor’s motion to dismiss the petition,[1] the court heard argument, found the allegation true beyond a reasonable doubt, and sustained the petition without further comment.
DISCUSSION
1. Sufficiency of the Evidence
For a violation of Penal Code section 422, a prosecutor must establish: (1) the defendant willfully threatened to commit a crime that would result in death or great bodily injury; (2) the defendant made the threat with the specific intent it be taken as a threat, even if there is not intent of actually carrying it out; (3) the threat on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the victim threatened, a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat caused the victim to be in sustained fear for his or her own safety or for his or her immediate family’s safety; and (5) that fear was reasonable under the circumstances.[2]
While only one count was alleged, it was the People’s theory the minor violated Penal Code section 422 first in early October 2005 by telling Adriana M. he “would kill her” or “would rather see her dead” if she dated anyone else, and then again in early January 2006, by telling her “he’ll do it his way.”
a. The October 2005 Comment
The defense did not claim the October 2005 comment was never made, but rather argued in context it was not intended to be taken as a threat and lacked the prospect of immediacy. In renewing this contention on appeal, the minor points to his youth, jealous nature, and lack of violence or prior threats against Adriana M. as well as her continued willingness to accept his telephone calls as circumstances establishing he intended -- and Adriana M. understood -- his comment as merely an emotional outburst. The minor additionally argues there was no credible and admissible evidence his comment placed Adriana M. in sustained fear.
The minor’s contentions require us to consider the totality of the evidence presented at the adjudication hearing, including the reasonable inferences to be drawn from that evidence, and to conduct our review in the light most favorable to the verdict.[3] Using this standard, we conclude when viewed on its face and in context, the October 2005 comment constituted a criminal threat. The comment was directed at Adriana M. and unambiguously threatened her with a crime resulting in her death. Although, as the minor asserts, the threat was conditional, because it warned of retaliation if Adriana M. did not comply with a condition (not to date anyone else) which was practically impossible to satisfy, the threat was sufficiently unconditional under the statute.[4] Adriana M.’s testimony after the minor threatened to kill her (she no longer ventured outside alone, fearing he would harm her, and the minor continually harassed her about dating others) was sufficient to establish the offense. Contrary to the minor’s assertion, Adriana M.’s subsequent telephone contact with the minor was not inconsistent with having taken the minor’s comment as a threat and having been put in sustained fear. Indeed, based on the minor’s anger and possessiveness it is reasonable to infer at least part of Adriana M.’s motivation in keeping an open line of communication was to calm down the minor so he would be dissuaded from hurting her.
The minor contends the testimony of Adriana M.’s mother on behalf of the People was inadmissible and “clouds the record on appeal,” making it impossible to determine whether Adriana M.’s fear resulted from the minor’s threat or from her mother’s open concerns to her daughter about the minor. In support of this claim, the minor refers to specific conflicts in Adriana M.’s testimony. We agree the mother’s testimony was largely irrelevant, but the minor’s citation to Adriana M.’s conflicting testimony is of no avail.[5] Notably, the juvenile court questioned Adriana M. directly as well as observing her demeanor during the adjudication hearing.
b. The January 2006 Comment
The minor argues the January 2006 comment does not support a Penal Code section 422 comment as a matter of law as based on the amended petition the crime occurred “on or about” October 18, 2005 to January 1, 2006. According to the minor, there is no evidence as to when in January the purported comment was made; and any such comment made after January 1, 2006 is outside the alleged time period. Adriana M. testified the minor said “he’ll do it his way” in response to her refusal to see him on his birthday. The minor’s birthday was January 7, 2006. His comment therefore must have been made on or before that date, which clearly qualifies as “on or about” January 1, 2006. “‘The law is clear that when it is charged that an offense was committed “on or about” a named date, the exact date need not be proved unless the time “is a material ingredient in the offense” [citation] and the evidence is not insufficient merely because it shows that the offense was committed on another date. [Citations.]’ [Citation.]”[6] In any event, because we conclude there is sufficient evidence the minor’s 2005 comment was a criminal threat, we need not examine the evidence of the January 2006 comment.
2. The Probation Conditions
Among the probation conditions imposed at the February 2, 2006 disposition hearing was condition 15, the minor is not to associate “with anyone known to be disapproved of by your parents, guardian, probation officer, school officials or camp staff; specifically, the minor is ordered not to associate with any known member of the Westside Wilmas gang.” However, in a preprinted portion of the February 2, 2006 minute order, probation condition 15 states only the minor shall not associate with anyone disapproved of by his parents or probation officer or camp staff, omitting the juvenile court’s addition of the knowledge element and the prohibition against associating with any known member of the Westside Wilmas gang. Also orally imposed was condition 15A, the minor is “not to participate in any type of gang activity.” However, in the February 2, 2006 minute order, probation condition 15A states the minor shall “not participate in any type of gang activity” and specifies the “Westside Wilmas Gang.”
The minor contends conditions 15 and 15A as they appear in the February 2, 2006 minute order are unconstitutionally vague and overbroad, and he urges us to modify them to include a knowledge requirement. With respect to condition 15, we need not reach the constitutional issue because, as both parties acknowledge, an oral pronouncement of judgment controls over the clerk’s minute order. Any discrepancy between the two is presumed to be clerical error in the minute order,[7] which can be corrected at any time to reflect the court’s oral pronouncement.[8] Accordingly, we order the February 2, 2006 minute order corrected to reflect as probation condition 15: “Do not associate with anyone known to be disapproved of by your parents, guardian, probation officer, school officials or camp staff; specifically, the minor is ordered not to associate with any known member of the Westside Wilmas gang.”
As for condition 15A, the People argue the condition as it appears in the preprinted portion of the minute order is not overbroad and the knowledge requirement is implicit in the condition as imposed. Without reaching the constitutional issue, we agree reasonably read, condition 15A’s ban on the minor’s participation in gang activities necessarily includes the requirement of knowledge. In other words, it is necessarily implied the minor must be aware the activity is gang-related for the condition to be triggered. This is reinforced by the language of related condition 15 as pronounced by the court, ordering the minor “not to associate with any known members of the Westside Wilmas gang.” However, to eliminate the possibility of any improper, overly broad interpretation of condition 15A, however, we modify the probation term to expressly include a knowledge requirement.[9]
DISPOSITION
The juvenile court’s minute order of February 2, 2006 is amended as follows: Condition 15 is corrected to conform to the court’s oral pronouncement to read: “Do not associate with anyone known to be disapproved of by your parents, guardian, probation officer, school officials or camp staff; specifically, do not associate with any known member of the Westside Wilmas gang.” Condition 15A is modified to read: “Do not participate in any type of known gang activity, specifically Westside Wilmas gang activity.”
As amended, the order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
JOHNSON, J.
We concur:
PERLUSS, P. J.
WOODS, J.
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[1] Welfare & Institutions Code section 701.1.
[2] Penal Code section 422; In re George T. (2004) 33 Cal.4th 620, 630; People v. Toledo (2001) 26 Cal.4th 221, 227-228.
[3] People v. Coffman and Marlow (2004) 34 Cal.4th 1, 90; In re George T., supra, 33 Cal.4th at pages 630-631.
[4] See, e.g., People v. Stanfield (1992) 32 Cal.App.4th 1152, 1158.
[5] People v. Maury (2003) 30 Cal.4th 342, 403 [on review of a sufficiency of evidence claim, the reviewing court “resolve[s] neither credibility issues nor evidentiary conflicts; we look for substantial evidence”].
[6] Penal Code section 955; People v. McDade (1991) 230 Cal.App.3d 118, 126-127.
[7] People v. Farell (2002) 28 Cal.4th 381, 384, footnote 2; People v. Mesa (1975) 14 Cal.3d 466, 471.
[8] See People v. Mitchell (2001) 26 Cal.4th 181, 183, 185-188.
[9] People v. Garcia (1993) 19 Cal.App.4th 97, 103.