In re Keli P.

Filed 7/24/07 In re Keli P. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Charles Q. Clay, III, Judge. Affirmed.

Debbie M. Page, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

The minor, Keli P., appeals from the April 5, 2006 order declaring her a ward of the court (Welf. & Inst. Code, 602) and the disposition order of April 12, 2006, placing her in a short-term camp community placement program. The juvenile court sustained the allegations of a delinquency petition filed December 27, 2005, and amended February 22, 2006, charging the minor with misdemeanor battery (Pen. Code, 242) and criminal threat. (Pen. Code, 422.) The juvenile court ruled that the criminal threat was a felony. The minor argues: the motion to amend should have been denied; there was insufficient evidence that she made a criminal threat; and she should not have been placed in a short-term camp community placement. We affirm.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (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; see also In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089 [standard of proof is the same in juvenile proceedings as that required in adult criminal trials]; In re Jose R. (1982) 137 Cal.App.3d 269, 275 [same].) On October 26, 2005, Romona King lived in a trailer behind her daughters residence. At approximately 4:25 p.m., Ms. King heard a window being broken. Ms. King took her telephone and walked out of her trailer to the front house. Ms. Kings two granddaughters, the minor and R.J., were in the front house. Ms. King told them what had just happened. Ms. King said she was going to call the sheriff. Ms. King testified as to what happened next: They started to come toward me, . . . [t]hey were loud, screaming . . . really, really bad . . . . Ms. King described what the minor said: I better watch my back. They hated me. I was a bitch and stuff like that. Both girls threatened to kill their grandmother.

Ms. King was frightened. Ms. King picked up the phone to call the sheriffs department. However, Ms. Kings phone rang. Ms. King answered the call from a daughter-in-law in Tennessee. The two girls began screaming at Ms. King as they approached her in the dining room. Ms. King set down her phone and removed her eyeglasses. The minor and R.J. grabbed Ms. King. The minor grabbed Ms. Kings head. At the same time, the minor pulled Ms. Kings hair. As this was occurring, R.J. held Ms. King by the neck. During the next 10 minutes, both the minor and R.J. punched Ms. King in the head, face, and back. Ms. King struggled with the girls, but was unable to free herself from their grip. During the fracas Ms. King bit R.J. The minor continued to punch Ms. King in the head with a closed fist. Ms. King managed to drag the minor toward the television. Ms. King grabbed a remote control and hit the minor. The minor ultimately released Ms. King. The minor and R.J. continued to approach Ms. King aggressively. Ms. King grabbed a pipe wrench that was on a nearby freezer to defend herself. Both the minor and R.J. telephoned their respective mothers. The minor then told R.J. that they should leave. Ms. King saw the minor and R.J. running down a nearby alley.

Eventually Ms. King reached the sheriffs department emergency operator. The operator stated the department already received a call from Ms. Kings daughter-in-law in Tennessee who overheard the struggle on the telephone. When fire department personnel arrived, Ms. King had scratches on her neck, blue marks on her arms and shoulder, and a torn blouse. Additional bruises appeared on her back, chest, and arm the following day. Ms. Kings neck was injured. Following the attack, Ms. King spent most of her time in Tennessee. Ms. King did not feel comfortable with the minor living in the front house. When Ms. King stayed in her trailer, she was afraid to go to the front house. Ms. King remained in her trailer. She exited a side gate and left from the back of the property.

The report prepared by Deputy Darell Edwards did not include reference to any threats made by the minor. However, it was written several hours after Deputy Edwards interviewed Ms. King. Deputy Edwards did not have any independent recollection of Ms. King mentioning threats made by the minor. When Deputy Edwards interviewed Ms. King, she appeared disheveled. Ms. Kings blouse was torn. Deputy Edwards observed that Ms. King had bruises in the upper chest area, scratch marks and redness of her skin. Ms. King was very upset.

III. DISCUSSION

A. Amendment of the Petition

1. Factual and procedural background

The adjudication hearing was prosecuted by a certified law student. (Cal. Rules of Court, rule 9.42.) Following Ms. Kings testimony at the adjudication hearing on February 22, 2006, the certified law student said [Ms. King] has provided testimony that leads us to believe that there is an additional count to be amended by proof to add a [Penal Code section] 422 [criminal threats] to this case . . . . Defense counsel objected. The juvenile court noted: Well, the testimony is what it is. I dont know if you had the opportunity to interview the witness or if you were not or prosecution was or was not aware that this testimony was forthcoming. [] To this degree, the testimony does support such a charge, and I would not be opposed to you continuing the matter prior to cross-examination, if theres additional work that you need to do, but based on the testimony thus far, the motion would be well taken. Defense counsel requested a continuance to allow time to: question R.J. and others; review the sheriffs and probation reports; and call the deputy to testify. The student who was prosecuting the case was asked when she discovered the need to amend the petition. The student responded: Your honor, I on the witness stand. This is the first I heard of the stabbing this morning when I interviewed this witness. She indicated that both the minor and the other person had threatened to kill her. The juvenile court granted the amendment motion over the minors objections. The juvenile court continued the adjudication until April 5, 2006, to: accommodate Ms. King; allow defense counsel to further investigate; and permit defense counsel to call the deputy and the minor to testify. On April 5, 2006, defense counsel cross-examined Ms. King. Thereafter, the juvenile court denied defense counsels motion to dismiss the amended count pursuant to Welfare and Institutions Code section 701.1 based upon the weight of the evidence. Defense counsel argued, I do not believe the People have presented proof beyond a reasonable doubt as the evidence now stands that Ms. King was in sustained fear which is a requirement of [Penal Code] section 422 and more importantly, I dont believe that there was an immediate to her there was the immediate prospect that [the minor] could carry out or would carry out or had any real intention of carrying out this threat to kill. Defense counsel then called Deputy Edwards and the minor to testify. Thereafter, the trial court sustained the amended petition on both counts.

2. The trial court did not abuse its discretion to amend the petition

The California Supreme Court has held: [D]ue process requires that a minor, like an adult, have adequate notice of the charge so that he may intelligently prepare his defense. [Citation.] (In re Arthur N. (1976) 16 Cal.3d 226, 233, citing In re Gault (1967) 387 U.S. 1, 33.) In the case of In re Robert G. (1982) 31 Cal.3d 437, 442, our Supreme Court held: Compliance with [the due process] requirement has been held by the Supreme Court to mandate that the minor be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. [Citation.] (See In re Gault, supra, 387 U.S. at p. 33.) In Robert G., after the defense rested, the prosecutor requested that the juvenile court sustain the petition on the ground that although the evidence did not demonstrate an assault with a deadly weapon as originally pled, it did support a finding of battery. The juvenile court allowed the prosecutor to amend the petition. Thereafter, the petition was sustained. Relying upon People v. Lohbauer (1981) 29 Cal.3d 364, 368-369, and In re Arthur N., supra, 16 Cal.3d at page 233, the Supreme Court reversed the juvenile courts adjudication order, holding, We conclude that a wardship petition under [Welfare and Institutions Code] section 602 may not be sustained upon findings that the minor has committed an offense or offenses other than one specifically alleged in the petition or necessarily included within an alleged offense, unless the minor consents to a finding on the substituted charge. (In re Robert G., supra, 31 Cal.3d at p. 445.)

However, this case involves an amendment rather than a finding of a non-lesser included offense. Our colleagues in the Court of Appeal for the First Appellate District in the case of In re Man J. (1983) 149 Cal.App.3d 475, 481, distinguished the amendment situation from that present in Robert G.: [N]othing in Robert G. or Arthur N. suggests that the court intended to impose limits on the amendment of wardship petitions beyond those imposed on amendment of the accusatory pleading in criminal cases. To the contrary, the courts manifest purpose in both cases was to extend to juveniles the same due process rights of notice and opportunity to defend as apply in criminal proceedings. [Citations.] We review a trial courts discretion to amend a petition for an abuse of discretion. (People v. Bolden (1996) 44 Cal.App.4th 707, 716; People v. Winters (1990) 221 Cal.App.3d 997, 1005; People v. George (1980) 109 Cal.App.3d 814, 818-819.)

The facts of this case are distinguishable from Robert G. and Arthur N. The juvenile court did not substitute a charge for the battery as originally pled in the petition. Rather, the juvenile court allowed the certified law student to amend the petition to add a criminal threat charge after Ms. King testified concerning the minors threats. There was evidence the minor threatened to kill Ms. King. Also, just prior to the attack, Ms. King was warned she should watch [her] back. The certified law student and the deputy sheriff who investigated the attack had been unaware of the threats until Ms. King testified. The adjudication hearing was continued from February 22 to April 5, 2006 after the prosecutions motion to amend was granted to allow the minors counsel time to investigate and prepare for further testimony. The minor therefore was afforded her due process rights to notice of the new charge and an opportunity to intelligently prepare a defense. No abuse of discretion occurred.

B. Sufficiency of the Evidence

The minor argues there was insufficient evidence to support the trial courts true finding regarding the Penal Code section 422^[1] criminal threats charge. More specifically, the minor argues: [T]here is nothing in the record to support a finding that [] [the minors] statement that you better watch your back or that Im going to kill you were so unequivocal, unconditional, immediate and specific to convey to a reasonable person a gravity of purpose and an immediate prospect of execution of the threat. (Original italics.) In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: [We] . . . 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.Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v.Hayes (1990) 52 Cal.3d 577, 631; People v.Johnson (1980) 26 Cal.3d 557, 576.) 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. Bolin (1998) 18 Cal.4th 297, 331; People v.Marshall (1997) 15 Cal.4th 1, 34; People v.Ochoa (1993) 6 Cal.4th 1199, 1206; People v.Barnes (1986) 42 Cal.3d 284, 303; Taylor v.Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v.Bloom (1989) 48 Cal.3d 1194, 1208; People v.Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

In People v. Toledo (2001) 26 Cal.4th 221, 227-228, the California Supreme Court held: In order to prove a violation of 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 threatwhich may be made verbally, in writing, or by means of an electronic communication devicewas 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 familys safety, and (5) that the threatened persons fear was reasonabl[e] under the circumstances. (See also People v. Bolin, supra, 18 Cal.4th at pp. 337-340 & fn. 13; In re Ryan D. (2002) 100 Cal.App.4th 854, 859-860; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136.)

In the case of In re Ryan D., supra, 100 Cal.App.4th at p. 861, and In re Ricky T., supra, 87 Cal.App.4th at p. 1137, the courts held that 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.] However, the threats in this case when viewed in the context of the surrounding circumstances, were unequivocal, unconditional, immediate, specific, and conveyed a grave and immediate prospect of execution. (People v. Bolin, supra, 18 Cal.4th at p. 340.)

In this case, the minor threatened to kill Ms. King. Ms. King was threatened that she better watch [her] back if she called the sheriff. The two girls then pummeled Ms. King with their fists on her face and upper body for 10 minutes. Ms. King suffered significant bruising and scratches on her neck, chest, back, and shoulders. Ms. King freed herself only after she was able to grab a remote control. Ms. King then hit the minor with the remote control. Ms. Kings testimony established she was threatened with bodily injury or death. Substantial evidence supports the juvenile courts true finding.

C. Camp Community Placement

The minor argues that the juvenile court abused its discretion by ordering her into a camp community placement program. More specifically, the minor argues, [T]here was no evidence before the juvenile court that short-term camp was the only available or the most appropriate disposition for [her]. In the case of In re Eddie M. (2003) 31 Cal.4th 480, 507, the California Supreme Court held: Under [Welfare & Inst. Code,] section 202, juvenile proceedings are primarily rehabilitative [citation], and punishment in the form of retribution is disallowed [citation]. Within these bounds, the court has broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public. [Citation.] . . . Given these aims, and absent any contrary provision, juvenile placements need not follow any particular order under section 602 and section 777, including from the least to the most restrictive. [Citations.] Nor does the court necessarily abuse its discretion by ordering the most restrictive placement before other options have been tried. [Citations.] (In re Eddie M., supra, 31 Cal.4th at p. 507, citing In re Ricky H. (1981) 30 Cal.3d 176, 183; In re John H. (1978) 21 Cal.3d 18, 27; In re Teofilio A. (1989) 210 Cal.App.3d 571, 575-576; and In re Michael D. (1987) 188 Cal.App.3d 1392, 1396; see also Welf. & Inst. Code, 202, subds. (a), (b), & (d)^[2]; In re Charles G. (2004) 115 Cal.App.4th 608, 614-615.) We review juvenile court disposition orders for an abuse of discretion. (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53; In re Eugene R. (1980) 107 Cal.App.3d 605, 617, overruled on another point in Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 115, fn. 20.) Our colleagues in the Court of Appeal for the Fifth Appellate District held: An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citations.] In re Lorenza M., supra, 212 Cal.App.3d at p. 53; see also In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Eugene R., supra, 107 Cal.App.3d at p. 617.)

In this case, the juvenile court read the probation report and heard arguments of counsel. In choosing camp community placement the juvenile court explained: The biggest concern the court has . . . just the fact that these minors are going to physically attack their grandmother or any elderly person, person of that age, two against one, it just strikes the court as something that is essentially victimizing a weaker person. But more than anything, its a tremendous lack of respect that was shown to Ms. King. [] I cant imagine any situation in which it would ever be appropriate or make any sense in my mind for some young person to raise their hand to their grandparent or parent or any elder who is responsible for that person. I just dont understand that, and there are some issues [the minor] testified that was started by the grandmother that she was the one who actually initiated the physical confrontation, but none of that seems to justify what it is that [the minor] did. [] Also, looking at the fact that Ms. King is going to remain [the minors] grandmother no matter what happens in here today, I wish there was some way I could fashion it so that that relationship is repaired somehow, but I dont know that theres going to be any going back because this incident, once its happened, is going to affect the views or psychological perspective of each of the parties and thats something that I dont think theres any going back on unfortunately. [] . . . [] So the issue really is whether it should be home on probation or a camp commitment, and as I look at the offense, the courts feeling was beyond and above the [Penal Code section] 242 itself. [] The nature of the physical attack that [the minor] took part in, that alone could go either way, but I think looking at the [Penal Code section] 422 as well not merely the fact that its a felony, but the fact that that aspect of the incident was just so uncalled for and that much more disrespectful than the physical attack itself, I am inclined to agree with the People that a camp commitment is appropriate. [] I recognize that [the minor] doesnt have any history . . . . After the minor was ordered detained, the juvenile court further found, [C]ontinuance in the home of the parent or guardian is contrary to the minors welfare. The juvenile court could reasonably find that the minor was in need of a more restrictive environment than in her home. No abuse of discretion occurred.

IV. DISPOSITION

The wardship order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

MOSK, J.

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^[1] Penal Code section 422 defines criminal threats as follows: 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, made verbally, in writing, or by means of an electronic communication device, 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 familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

^[2] Welfare and Institutions Code section 202 provides in pertinent part: (a) The purpose of this chapter is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minors family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public. . . . When the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents. This chapter shall be liberally construed to carry out these purposes. [] (b) . . . Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. The guidance may include punishment that is consistent with the rehabilitative objectives of this chapter. . . .  []  . . .  [] (d) Juvenile courts and other public agencies charged with enforcing, interpreting, and administering the juvenile court law shall consider the safety and protection of the public, the importance of redressing injuries to victims, and the best interests of the minor in all deliberations pursuant to this chapter. . . .