In re J.H.

Filed 10/22/07 In re J.H. CA3

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

Following a joint jurisdictional hearing for minors J.H. (hereafter appellant) and E.J. (hereafter Alex), the juvenile court sustained a charge against each minor of conspiracy to commit murder (Pen. Code, 182, subd. (a)(1), 187)^[1]and, as to Alex only, a charge of making a criminal threat ( 422). Each minor was declared a ward of the court and ordered to serve time in juvenile hall to be followed by formal probation in the home of his parents.

On appeal, appellant contends (1) the evidence is insufficient to support the conspiracy finding, (2) the juvenile court erred when it found he was both ineligible and unsuitable for deferred entry of judgment, and (3) a probation condition that he not associate with anyone on probation is constitutionally vague. We reject appellants first two claims, but agree with the third and, accordingly, we shall modify the probation condition.

FACTS

Daniel H. (age 16) testified that in March 2005 he was a high school classmate of both appellant (age 16) and Alex (age 15), and hung out with both of them.

On March 29, 2005, prior to first period, Daniel H. was talking with appellant when Alex walked up with Danielle G. While Daniel H. spoke with Danielle G., appellant and Alex had a separate conversation about 30 feet away. Daniel H. overheard Alex and appellant talking about appellant having gone to Alexs house for a few hours during the spring break. Just before the bell rang for first period, Daniel H. heard Alex, in a normal voice, say the word Columbine. Alex told appellant that they would arm themselves with guns and, starting in the lower quad, shoot other students and then meet in the upper quad where they would kill each other. Daniel H. also heard some of this discussion during lunch.

During cross-examination and further redirect examination, Daniel H. attempted to retreat by suggesting the only statement he actually heard Alex say prior to first period was, I looked up Columbine over spring break. Appellant, who seemed like he was not really paying attention, nodded his head and sarcastically responded, [L]ike yeah, whatever, dude. Daniel H. tried to muddle, if not further retreat, from his previous testimony in which he sketched out a morning conversation between Alex and appellant, focused on shooting and, instead, in which he sought to sketch out an alternative, lunch break conversation, although still about shooting students and, additionally, blowing up buildings.

Daniel H. testified that during lunchtime he saw Alex remove a map of the school from his backpack and, with Danielle G. present, speak to appellant about blowing up buildings with explosives. Appellant responded sarcastically, [Y]eah, with C4 explosives. Alex also suggested they use grenades to blow up the C building.

Daniel W., who was 17 years old at the time of the jurisdictional hearing, testified that on the day in question, when he and Alex were in their first period study hall, Alex came up to Daniel W. and asked, Do you want to die? Daniel W. replied, No. Why would you ask me that? Alex said, Im planning a Columbine at the school. Daniel W. was shocked and sat down. Alex then said, I was just wondering if you want to be on my hit list? Daniel W. replied, No, I dont want to die.

Later, during the same study hall session, Daniel W. and Alex were seated next to each other at computers. Daniel W. noticed that Alex was viewing two Web sites -- one called Vampire Freaks, which showed a lot of violence, and the other one on Columbine. The teacher, Joyce Shinn, asked what everyone was doing, and Alex replied that he was looking at the Columbine Web site. Shinn confirmed Daniel W.s testimony, testifying that she saw several boys standing around Alex and asked him what he was doing. Alex said he was looking at the guns on the Columbine Web site. Shinn told Alex to get off the Internet and get back to whatever he was working on.

During the fourth period that day, Alex told classmate Travis P. (age 15) that he was going to shoot up the school, that appellant was going to help him, that he wanted to kill as many students as possible before the police arrived, and that he wanted Travis P. to help by keeping the cops off of him. Alex wanted the police to kill him, but if they failed then he would do it himself. Alex showed Travis P. a map of his plans. (Hereafter, the map.) Travis P. did not believe Alex was joking and, at lunchtime, reported the matter to Officer John Jacobs, the school resource officer, who in turn informed the principal.

Also during fourth period, Alex told classmate Andrew P. that he was going to do what they did at Columbine -- bring guns to school and kill students and teachers. Alex asked Andrew P. to help and showed him a map which showed where Officer Jacobs and people in the administration office would be.

After lunchtime, Officer Jacobs interviewed Alex at the schools main office. Jacobs told Alex that he had information that Alex had brought a gun to school and was going to shoot students and wanted to know if others were involved. Alex said he did not have a gun and the only other person involved was appellant.

Jacobs then interviewed appellant, asking him about a conversation appellant and Alex had during the lunch hour. Appellant said that he and Alex had talked about Columbine and ways of getting into the school if they wanted to hurt students. Appellant said that while he did not like the students, he would not actually shoot them. Appellant said that Alex told him that he would bring a gun to school and shoot students, and that Alex had talked about Columbine and what the students felt when going through the shooting there. Appellant told Alex the idea was stupid and that he, appellant, did not believe Alex would have gone through with it.

Still, that same day, Jacobs interviewed Alex again, confronting him with additional information provided by appellant. Alex initially denied knowledge of the map, but after further questioning admitted to having it. Alex admitted looking at the Columbine Web site during study hall and several times during the last couple of weeks. Alex said he looked at the Columbine Web site because he wanted to know how the students felt during the shooting. Alex also told Jacobs the entire thing was a joke and he would not have brought bombs or guns to school.

Alex was searched that afternoon and the map he had been displaying was found in his backpack along with a journal containing various writings regarding death and suicide. In Alexs wallet was a scrap of paper reminding Alex to say goodbyes to online friends, and on the other side of the paper it said, eamty [empty] dead broken shattered, why am I alive[?]

Appellant was also searched that afternoon. In his backpack were writings regarding killing others and wanting to die.

The following day, March 30, 2005, search warrants for both boys homes were executed. In Alexs room were several writings relating to dying and suicide. In a closet in the master bedroom was a bolt-action .22 caliber rifle; however, no ammunition for the rifle was found in the home. Computers and computer hard drives that were sitting on the dining room table were seized. A plastic bag contained 9mm. and .45 caliber ammunition, but no guns corresponding to that ammunition were found.

At appellants home, officers found a Winchester .22 caliber lever-action rifle and a BB or pellet gun in the master bedroom closet, a closet which also connected to appellants room. No ammunition which would fit either gun was found. On the floor in the same closet were three boxes of M-5000 firecrackers. Also found was a notebook containing writings, including a drawing of a lunchroom with tables and a fire pit, the word fire on an undesignated but enclosed area, and a drawing of satan decapitating god.

On April 6, 2005, Detective Kim Nida conducted a four-hour interview with appellant.^[2] Appellant said that he had been thinking of suicide since the sixth grade, that he gets teased by other students who call him retard and stupid, and that Alex shared the same feelings. Appellant had written the notes about suicide and killing others before spring break and had shared the notes with Alex.

Appellant initially denied knowing of the map drawn by Alex, but eventually admitted so knowing. Appellant said that at lunchtime they stood by the E building and pointed out how they would move and where they would go. They would enter the campus at different locations, meet in the middle and kill each other or themselves with pistols and rifles. As to the M-5000s, appellant said a friend had given them to him, they had set some of them off in water, and they were weak, making only a ripple in the water. When asked whether he would actually carry through and shoot people, appellant replied that he would not.

Appellant testified that when he first saw Alex before class the morning of March 29, 2005, they were by the E building and Alex said that he had gone on the Columbine Web site during the spring break. Alex told appellant what had occurred at Columbine and that was the only discussion they had regarding Columbine before they went to class. After about five to 10 minutes of conversation Alex went to his first period class and appellant, who did not have a first period class, just stayed in the area where they had been talking.

Although there was no agreement to meet at lunch, the next time appellant saw Alex was at lunchtime, by the E building where appellant usually ate lunch. With 10 to 15 people in the area, Alex pulled the map from his backpack and showed it to appellant. The two talked about where they would come from and about bringing guns to school. Prior to lunchtime the two had never discussed such topics. To appellant, the discussion was just talk and joking about it. He and Alex never agreed to shoot or kill people, and appellant had no intention of doing so.

Alex testified, admitting having met appellant prior to school the morning of March 29, 2005, and telling appellant and Daniel H. about the Columbine Web site. Alex also admitted drawing the map during his fourth period class because he was still thinking about Columbine. The map was of the upper quad area of the high school, including the gym. At lunchtime Alex showed the map to appellant, but was not trying to get him to agree upon a plan to come to school and shoot people. Appellant had not known that Alex was going to draw the map and prior to lunchtime he and appellant had never discussed a plan to attack the school.

Alex denied asking Travis P. to join a plan to attack the school or of threatening him in any way. Likewise, Alex never asked Daniel W. if he wanted to join the plan and he denied asking Daniel W. whether he want[ed] to die or threatening to put him on a hit list. Alex wrote poems about death and suicide because he was [j]ust bored, writing whatever comes to mind. Alex also denied being angry with anyone or wanting to kill anyone at the school.

DISCUSSION

I

Appellant contends the evidence is insufficient to support the charge of conspiracy to commit murder, essentially arguing there is a lack of evidence to show that he agreed with Alex to commit murder. We reject the claim.

When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the [accused] guilty beyond a reasonable doubt. (People v. Green (1980) 27 Cal.3d 1, 55; In re Frederick G. (1979) 96 Cal.App.3d 353, 362-365.)

A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act by one or more of the parties to such agreement in furtherance of the conspiracy. (People v. Morante (1999) 20 Cal.4th, 403, 416.) No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement . . . . ( 184.) The agreement may be shown by circumstantial evidence, such as the conduct of the parties in carrying out an activity which constitutes the targeted crime. (People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1417.)

Appellant does not claim, nor could he reasonably do so, that the evidence is insufficient to establish that Alex hatched a plan to kill students at the school and attempted to get appellant to join him. Nor does he claim the evidence was insufficient to show an overt act in furtherance of the conspiracy. Instead, appellant limits his argument to there being a lack of substantial evidence showing that he entered into an agreement with Alex to kill other students.

Specifically, appellant argues the evidence shows only that he came into contact with Alex twice on March 29, 2005. The first time occurred prior to first period, when Alex, in a normal voice and with others present, told him that he had looked up the Columbine Web site during spring break and talked to appellant about bringing guns to school and participating in a Columbine-style shooting. However, appellant continues, there is no evidence that [he] contributed anything to this conversation.

The second time occurred at lunch when Alex showed him and others the map he had drawn. Then, over the next few minutes, he and Alex talked about bringing guns to kill students, how they would move and where they would go, including killing themselves in the end. When Alex suggested using explosions to blow up buildings, appellant suggested using C4. Appellant concludes that when all of the evidence is considered it raises, at most, a suspicion of a conspiracy, but not proof beyond a reasonable doubt.

While that evidence alone is sufficient, even as appellant interprets it, appellant simply fails to consider other evidence adduced at the jurisdictional hearing regarding appellants involvement in the plot.

Appellant told Detective Nida that he disliked school because his classmates frequently ridiculed him, that the teasing was getting worse, that Alex had similarly been treated, and both he and Alex shared the same feelings. For an extended period before March 29, 2005, both boys had entertained thoughts of death, killing and suicide and had placed these thoughts in writings and drawings. Appellant also admitted to Detective Nida that he had written such notes before spring break and had shared the notes and such thoughts with Alex, meaning they had discussed such matters prior to speaking with each other the morning of March 29, 2005.

Appellant testified that when he saw Alex before class started on March 29, 2005, Alex told him that he had gone on the Columbine Web site and told him what had occurred at Columbine. A few minutes before the bell rang for the start of first period, Daniel H., while talking with Danielle G. approximately 30 feet from where appellant and Alex were speaking, heard Alex say, I looked up Columbine over spring break and appellant nodded his head in response. The bell rang, and Alex left for class and appellant did not see him again until lunchtime.

At lunchtime, Alex showed appellant the map he had drawn in fourth period. The map shows an area marked lower and the upper quads of the high school, including in the upper quad the cafeteria, the gym and an undesignated building. The word clear is written in several areas on the map. In the cafeteria building is written plant bomb, in the gym building is written blow up, and in the undesignated building is written shoot it up. Also in the upper quad is a circled area next to which is the phrase end it here.

Appellant told Detective Nida that, after looking at the map, he and Alex stood by the E building and pointed out how they would move and where they would go. Appellant would enter the campus on a side road and Alex would enter from a different location. They would meet in the middle and end it either by killing themselves or having the police kill them. The attack would be made with pistols and rifles.

In sum, the evidence presents a classic profile of students who commit Columbine-type shootings. Both appellant and Alex disliked school and their classmates because, they asserted, they were frequently ridiculed by the latter, thus providing a common motive for an attack. Both boys were preoccupied with death, suicide and killing others, feelings which they had reduced to writings and drawings and shared with each other. That the two actually intended to commit such an attack was substantially supported by Daniel H.s testimony, which the court was entitled to and impliedly did accept notwithstanding Daniel H.s later attempt to retreat from his testimony, that prior to first period he overheard Alex and appellant speaking of arming themselves, shooting students, and then shooting themselves. Indeed, when Alex spoke of Columbine, appellant nodded his head, which was conduct from which the court could infer appellants knowledge and assent as to that subject. Further support for their having agreed to commit the assault was shown by Alexs having reduced the plan to a map which at lunchtime the two used to enact how and from where they would commit the shootings. Moreover, both boys had immediate access to rifles and needed only ammunition to carry out such a plan. Finally, although both boys denied being serious about the plot, the court was not required to accept such self-serving statements, particularly in light of their having been made only after they were called to account for their actions.

Reasonable inferences drawn from the foregoing evidence include, as the juvenile court found generally, that appellant and Alex, during a spring break visit at Alexs home, discussed and agreed to arm themselves and to commit a Columbine-style campus massacre at their high school, later talked about their plans at school on the morning of March 29, 2005, and, at lunch the same day, reviewed a tactical map of the campus, drawn by Alex. Reasonable inferences from the evidence include, as the juvenile court found specifically, support for all four overt acts alleged in the petition. Even so, one overt act by but one coconspirator suffices to satisfy this requirement of the law. In this case, Alexs overt act of drawing the map so quickly after the morning conversation and the same day discussing it with appellant further reinforces already sufficient evidence of conspiracy to reprise the Columbine massacre. Consequently, substantial evidence supports the courts finding of an agreement to commit murder.

II

The minor contends the juvenile court erred when it found he was disqualified from the deferred entry of judgment program (Welf. & Inst. Code, 790 et seq., hereafter DEJ) because he was both ineligible and unsuitable. We agree the court erred in finding him ineligible, but not in finding him unsuitable.

Welfare and Institutions Code section 790 et seq. provides that in lieu of jurisdictional and dispositional hearings an eligible and suitable minor may admit the allegations contained in a section 602 petition and waive time for pronouncement of judgment, i.e., a deferred entry of judgment. (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.) If the minor successfully completes court imposed terms of probation, receives a positive recommendation from the probation department, and the prosecutor moves for dismissal, the court must dismiss the charges. (Ibid.)

A minor is eligible for DEJ if he or she meets six specified conditions, one of which is that a charged offense is not one listed in Welfare and Institutions Code section 707, subdivision (b). (Welf. & Inst. Code, 790.)^[3] However, just because a minor is eligible for DEJ does not mean the court is required to grant it. (In re Sergio R. (2003) 106 Cal.App.4th 597, 607.) Even though eligible, the court may deny the minor DEJ if, in the courts discretion, it finds the minor unsuitable for the program. (Ibid.)

Suitability for DEJ, in turn, is determined by the courts consideration of factors set forth in Welfare and Institutions Code section 790 and rule 5.800(d)(3)(A)(i) (formerly rule 1495(d)(3)(A)(i)) of the California Rules of Court -- namely, the minors age, maturity, educational background, family relationships, motivation, any treatment history, and any other relevant factors regarding the benefit the child would derive from education, treatment, and rehabilitation efforts. (In re Sergio R., supra, 106 Cal.App.4th at p. 607.)

An appellants challenge to the trial courts determination of his or her suitability for DEJ is determined under the abuse of discretion standard. (In re Sergio R., supra, at p. 607.)

As noted above, a minor is ineligible for DEJ if the offense charged is listed in Welfare and Institutions Code section 707, subdivision (b). Conspiracy to commit murder

( 182, 187), is not an offense expressly listed in Welfare and Institutions Code section 707, subdivision (b). However, subdivision (b)(17) of this section lists as a qualifying offense, [a]ny offense described in Section 12022.5 or 12022.53 of the Penal Code.

Sections 12022.5 and 12022.53 are punishment enhancement sections applicable to those who personally use firearms in the commission of criminal offenses. The punishment provided for in section 12022.5, generally 3, 4, or 10 years, applies to any felony or attempted felony . . . unless use of a firearm is an element of that offense.^[4] ( 12022.5, subd. (a).)

Section 12022.53 generally increases the punishment for personal use of a firearm over that if the offense is one specified in subdivision (a) of that section. Among the offenses described in section 12022.53 is [a]ny felony punishable by death or imprisonment in the state prison for life. ( 12022.53, subd. (a)(17).)

Conspiracy to commit murder is punishable by the term provided for first degree murder ( 182, subd. (a)), which, in turn, is punishable at a minimum by a term of 25 years to life ( 190, subd. (a)).

Here, although not a ringing endorsement of its position, the juvenile court concluded appellant was ineligible for DEJ because conspiracy to commit murder carried a potential life sentence and therefore was an offense listed in subdivision (b) of Welfare and Institutions Code section 707.^[5]

Appellant argues that Welfare and Institutions Code section 707, subdivision (b)(17)s incorporation of the categories of offenses listed in sections 12022.5 and 12022.53 must be read to limit those offenses to those wherein a firearm is used. To interpret subdivision (b)(17), as was done by the court in this case and is urged by the People on appeal, he continues, would essentially render the rest of the offenses specified section 707, subdivision (b) surplusage. For reasons to follow, we agree.

Where a statute is theoretically capable of more than one construction we choose that which most comports with the intent of the Legislature. [Citations.] Words must be construed in context, and statutes must be harmonized both internally and with each other, to the extent possible. [Citations.] Interpretive constructions which render some words surplusage, defy common sense, or lead to mischief or absurdity are to be avoided. [Citations.] (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844.) According to the statutory construction principle known as noscitur a sociis(it is known by its associates), a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant . . . . (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 307.)

With the exception previously noted (see fn. 5, ante), the category of offenses described by section 12022.5, subdivision (a) encompasses all felonies except those limited few where use of a firearm is an element of the offense. If Welfare and Institutions Code section 707, subdivision (b)(17) is read to incorporate section 12022.5s category of offenses, which necessarily would include conspiracy to commit murder, then the vast majority of the remaining offenses in the list would be rendered unnecessary or redundant. To avoid such an unacceptable circumstance, we conclude that Welfare and Institutions Code section 707, subdivision (b)(17) must be read to include section 12022.5, subdivision (a)s category of offenses only when the offense with which the minor is charged involves personal use of a firearm.

Similar reasoning applies to the list of offenses in section 12022.53, since that list, like that of section 12022.5, duplicates most of the offenses listed in subdivision (b) of Welfare and Institutions Code section 707. Consequently, subdivision (b)(17)s incorporation of section 12022.53 applies only when the minor is charged with an offense involving personal use of a firearm.

Appellant also contends the juvenile court abused its discretion when it found he was unsuitable for DEJ. The record does not support the claim.

The juvenile courts consideration of the circumstances of a crime alone may constitute an adequate basis for denying DEJ. (Martha C. v. Superior Court, supra, 108 Cal.App.4th at pp. 561-562; In re Sergio R., supra, 106 Cal.App.4th at p. 607.) Appellants conspiring to commit mass murder, coupled with his long-standing suicidal thoughts, demonstrates that he is in need of considerably more formal restrictive measures than are afforded under the DEJ program. Consequently, there was no abuse of discretion by the court in finding appellant unsuitable for DEJ.

III

Appellant contends the juvenile court violated his federal and state constitutional rights when it imposed a constitutionally vague and overbroad condition of probation that he have no association with [Alex] or anyone on probation. He is correct.

In In re Sheena K. (2007) 40 Cal.4th 875, filed after the filings of the briefs herein, the California Supreme Court held that a probationary condition prohibiting the probationer from associating with anyone who was a member of a specified class of persons, without a requirement that the probationer know the person was a member of the class, is constitutionally vague (id. at pp. 889-892); that because such conditions present a pure question of law, a probationers failure to object to its imposition does not forfeit the issue for appeal (id. at pp. 880-889); and that an acceptable remedy when such a condition is challenged on appeal is for the appellate court to insert the knowledge requirement (id. at p. 892).^[6]

Since the condition imposed upon appellant is for constitutional purposes indistinguishable from that of In re Sheena K., we shall insert the knowledge requirement.

DISPOSITION

The juvenile courts order prohibiting appellant from associating with anyone on probation is amended to read [insert appellants full name] is to have no association with [insert co-minor E.J.s full name] or anyone he knows to be on probation. The juvenile court is directed to amend its records to reflect the foregoing changes and to forward the appropriate documents to appellant and the probation department. In all other respects, the judgment is affirmed.

NICHOLSON , J.

We concur:

BLEASE , Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] Hereafter, references to undesignated sections are to the Penal Code.

^[2] This tape was marked exhibit 16, but was neither admitted into evidence nor viewed by the court.

^[3] The six conditions are: (1) The minor has not previously been declared to be a ward of the court for the commission of a felony offense[;] (2) The offense charged is not one of the offenses enumerated in subdivision (b) of Section 707[;] (3) The minor has not previously been committed to the custody of the Youth Authority[;] (4) The minors record does not indicate that probation has ever been revoked without being completed[;] (5) The minor is at least 14 years of age at the time of the hearing[;] (6) The minor is eligible for probation pursuant to Section 1203.06 of the Penal Code. (Paragraphs omitted.)

^[4] Subdivision (d) of section 12022.5 provides an exception to subdivision (a): Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245, if a firearm used, or for murder if the killing is perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury or death.

^[5] Referring to section 12022.53, the court stated: Conspiracy to commit murder is potentially punishable by life. [] [T]his section does not define a crime. It imposes punishment for an enhancement with the use of a firearm. So I think it could be very -- this decision could be based on the fact that because this offense carries a potential life sentence[,] . . . youre not eligible, that aside, Im not resting my decision entirely on that. Ill let some appellate court give us guidance.

^[6] The precise condition in In re Sheena K. was that she not associate with anyone disapproved of by probation. (Id. at p. 878.)