In re Carol H.

Filed 6/15/10 In re Carol H. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

On September 18, 2009, a juvenile wardship petition pursuant to Welfare and Institutions Code section 602 was filed and, subsequently, the juvenile court sustained a charge that defendant made terrorist threats (Pen. Code, 422).[1] At disposition, the court adjudged defendant a ward and placed her on probation with various conditions, including that she was not to associate with her sister. On appeal, defendant contends that substantial evidence did not support the finding that she violated section 422 and she challenges the probation condition prohibiting her from having any contact with her sister. We conclude that substantial evidence supported the lower courts finding that defendant violated section 422, but we agree that the probation condition barring any contact between the sisters is overly broad. Accordingly, we modify this condition to permit peaceful conduct between the sisters and otherwise affirm the judgment.

BACKGROUND

On September 18, 2009, a petition pursuant to Welfare and Institutions Code section 602 was filed that alleged defendant had committed assault with a deadly weapon by means of force likely to produce great bodily injury ( 245, subd. (a)(1)) and making terrorist threats ( 422). Defendant denied the allegations of the petition.

At the contested jurisdiction hearing held on October 8, 2009, the court heard evidence that, on September 17, 2009, defendant was 15 years old and living with her mother, another male,[2] defendants 20-year-old sister, and her sisters boyfriend, Cody D., in a mobile home. Additionally, Cody and defendants sister had two children who were also living in the mobile home.

During the morning of September 17, 2009, defendants mother and sister told defendant to get ready for school, and defendant began to yell and swear at her mother and sister. The school called to inquire about defendants repeated absences and defendant took the phone from her mother, briefly spoke to the school, and hung up. The school made several calls and asked to speak to defendants mother, but each time the school called defendant answered the phone and hung up.

Cody took the phone into his bedroom and called the school to explain that defendant had missed school because she had a sprained arm. The school told Cody to inform defendants mother that the school was sending a social worker to the home to talk to the mother and defendant. Cody told defendants sister to provide the mother with this information and, when the sister conveyed to the mother what the school had communicated to Cody, defendant started freaking out, swearing, and threatening to break out the windows in Codys car. Defendants mother expressed concern that she, as the mother, would have to go to jail as a result of defendants failure to attend school.

Defendants sister noticed defendant in the kitchen and heard her going through the silverware; it sounded like she was looking for a knife. Defendants sister said that she heard her mother say, Put that down . . . . Defendants sister ran into the room where Cody was with their 11-month-old baby; defendants sister told Cody, Shes got a knife[.] Defendants sister was scared; she slammed the bedroom door shut and locked it. Defendants sister testified: I was pretty muchlike Mom was screaming and then [defendant] is screaming and then the baby was screaming. I was just shaking. My heart was pounding.

Defendants sister testified that she did not actually see the knife. She stated that a couple of months prior to this incident defendant had pulled a knife on a neighbor.

Defendant began kicking the bedroom door and screaming for Cody to come out. Defendants sister testified that defendant yelled several times that she wanted to stab Cody and defendant stabbed the wall next to the bedroom door.

Cody testified that for about 15 minutes defendant was kicking the door, screaming, and yelling that if he came out of the room or opened the door, she was going to stab him. Cody testified that he was kind of frightened. He elaborated, I mean, the knives weve got in the kitchen are huge. He added, Just making a threat like that would kind of get you really worried, especially having my little one-year-old in my arms . . . .

Defendants sister and Cody believed that defendant had ripped the phone out of the wall because defendants sister heard it being yanked out of the wall and the phone Cody had been using no longer was operating. Cody used his cell phone to call the police.

About 10:03 a.m., Urok Tribal Police Sergeant Thorin McCovey arrived. Defendants mother was outside and kept repeating that they just wanted her to go to school. McCovey went inside and saw defendant standing next to a door with a knife in her left hand. He unsnapped his gun and ordered defendant to put the knife down. She immediately put the knife down, backed away, and sat on a couch. When he put the handcuffs on defendant, she began to struggle and pull away. While he walked defendant to his car, defendant was screaming multiple obscenities. He said she was red-faced and looked like she was crying. When she wanted to know why she was being arrested, McCovey responded that she was not under arrest but was being detained. According to McCovey, defendant said, [J]ust because I told that motherfucker I was going to stab him. I hate that motherfucker. I dont give a fuck.

Once defendant was removed from the trailer, defendants sister and Cody left the bedroom. McCovey stated that Cody did not come out of the mobile home to speak to him until he had been outside the mobile home for about 10 or 15 minutes. McCovey said that defendants sister reported to him that she saw the knife in defendants hand as she was closing the bedroom door to lock it.

At the end of the contested jurisdiction hearing, the court found insufficient evidence to support the charge that defendant had assaulted her sister and dismissed the first count. The court sustained the second count that defendant had made terrorist threats against Cody

The probation department filed its report on October 15, 2009. The report indicated that the mother and father of defendant were now living together in a different trailer. Defendants mother stated that Cody and defendant did not get along. Defendant reported that she did not like Cody and that she had seen him strangle her sister. The probation department recommended that defendant be declared a ward of the court pursuant to Welfare and Institutions Code section 602 and be placed on formal probation with various conditions, including a condition that defendant shall have no contact with Cody or defendants sister and that the probation department shall have the authority to modify or eliminate this term as is deemed fit.

The court held the disposition hearing on October 16, 2009. At the hearing, the probation officer stated that defendant was living with her father and her mother was living with them most of the time. The probation officer recommended no contact between defendant and her sister because of the sisters testimony that she was frightened during the incident when defendant retrieved the knife and began yelling that she was going to stab Cody

Counsel, the probation officer, and the court discussed the probation condition barring contact between defendant and her sister. The district attorney expressed unease with this condition and stated: Im a little concerned because I dont think that theythey want to contact at least [Cody], I think thatthat would be the only limitation. I dont think it would be right to keep sisters away from each other. Defense counsel argued that if defendants sister visited her parents, defendant would be forced to flee from the home and that condition was inappropriate. The court responded that it was no different than any other restraining order. The court stated that the parents were in charge of the household and the court would assume theyre not going to let someone in that forces [defendant] to leave sotheythey can regulate that, I think.

The probation officer commented that there would be no violation if defendants sister came up to her because defendant would not have the intent needed to constitute a probation violation. The court disagreed and explained: Well, if the sister came up to her but they maintained contact that would be a violation. I mean, if her sister were chasing her down the street that wouldnt be a violation, but youre not to associate with either one of those people yourself unlessunless that requirement is released by the Probation Department. And to the extentand only to the extent that it is.

The court concluded that it was going to follow the recommendation as it was written by the probation department and emphasized that the probation department had the authority to modify or eliminate this term as it deemed fit. The court adjudged defendant a ward and placed her on probation with various conditions, including that she have no contact with Cody or her sister.

Defendant filed a timely notice of appeal.

DISCUSSION

I. Sufficiency of the Evidence

The trial court found that the evidence in the record was insufficient to support the charge that defendant assaulted her sister with a deadly weapon by means of force likely to produce great bodily injury ( 245, subd. (a)(1)), and it found the evidence was sufficient to support the allegation that defendant made terrorist threats against Cody ( 422).

Defendant maintains that substantial evidence did not support the lower courts determination that defendant made terrorist threats. Section 422 provides the following: 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.

In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. [Citations.] Evidence sufficient to support the courts finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. (In re N.S. (2002) 97 Cal.App.4th 167, 172.) We have no power to judge the effect or value of, or to weigh the evidence, to consider the credibility of witnesses, or to resolve conflicts in, or make inferences or deductions from the evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)

However, substantial evidence is not synonymous with any evidence. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, [w]hile substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations]. [Citation.] The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. (Id. at pp. 1393-1394.)

In the present case, defendant does not dispute that the evidence supports three of the five elements under section 422. The record establishes that defendant retrieved a knife from the kitchen, repeatedly threatened to stab Cody with the knife if he came out of the room, kicked and pounded the locked door of the room where Cody had retreated, and stabbed the wall next to the bedroom door. This evidence amply supported the first three elements of section 422 that defendant willfully threatened to stab Cody with a knife and this action would result in death or great bodily injury to Cody, that defendant intended her threats to be taken seriously, and that defendants threats conveyed to Cody that she intended to immediately carry out her threats to stab him. Thus, the issue before us is whether the evidence supported the final two elements of section 422 that defendants threats actually caused Cody to be in sustained fear for his own or his immediate familys safety and that such fear was reasonable.

Section 422 does not define the term sustained fear, but courts have held that sustained fear means fear over a period of time that extends beyond what is momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139-1140.) Cody testified that he knew defendant had a knife despite not actually seeing it and when defendant threatened to stab him with the knife he was kind of frightened. He elaborated, I mean, the knives weve got in the kitchen are huge. He added: Just making a threat like that would kind of get you really worried, especially having my little one-year-old in my arms . . . . Subsequently, the following exchange took place between the district attorney and Cody: Q. Okay. And you said youyou were a little frightened or frightened or. [] A. Frightened. [] Q. Okay. How long did this last? [] A. About 10, 15 minutes.

Codys testimony supported a finding that his fear was not momentary or fleeting, but was sustained as it lasted 10 to 15 minutes. In the abovementioned exchange, Cody testified that he was frightened for 10 to 15 minutes while defendant was threatening to stab him with what he believed was a large knife.

Defendant argues that Codys testimony could be interpreted to mean that his fear was fleeting, as his response of about 10 or 15 minutes may have referred to the entire incident, not to the period of time he was frightened.

We disagree with defendants interpretation. It is axiomatic that we interpret the evidence to support the findings of the juvenile court and we have no power to resolve conflicts or make inferences or deductions from the evidence. (See, e.g., In re N.S., supra, 97 Cal.App.4th at p. 172; In re Sheila B., supra, 19 Cal.App.4th at p. 199.) Here, the court implicitly found that Codys answer to a question about how long it lasted, which immediately followed his response that he was frightened, referred to the period of time that he was afraid. Furthermore, this interpretation is consistent with other evidence in the record. Cody testified that he was in the bedroom with defendants sister until the police arrived, which was about 20 minutes. Thus, if Codys answer had been referring to the time for the entire incident, he would have said 20 minutes rather than 10 or 15 minutes.

Defendant also maintains that there was no testimony by other witnesses that Cody felt particularly frightened as no one suggested that he was agitated or shaking. The record shows, however, that Cody was frightened enough to feel like he had to call the police. If his fear were fleeting, as defendant argues, he would have had no reason to call the police. Defendant contends that the fact that Cody waited until the police arrived before leaving the room shows that he felt secure in the room. Nothing in the record supports this interpretation of the record. The record indicates that it was unsafe for Cody to leave the room and there is nothing to suggest that he felt safe in the room while defendant was pounding on his door and screaming that she wanted to stab him. Additionally, Officer McCovey testified that Cody did not come out of the house to speak to him until the officer had been outside the mobile home for about 10 or 15 minutes. Thus, the officer did not see Cody immediately after defendant was removed from the mobile home.

Defendant relies on In re Ricky T., supra, 87 Cal.App.4th 1132, when arguing no substantial evidence supports a finding of sustained fear. However, that case is clearly distinguishable. In In re Ricky T., a student cursed and told the teacher that he would get him after the teacher accidentally hit the student with a door the teacher was opening. (Id. at p. 1137.) The Court of Appeal reversed the lower courts finding of a violation of section 422, holding that the students remarks were rude and merely a vague threat. (In re Ricky T., supra, at pp. 1137-1138.) The court further noted the police were not called until the following day, the minor was then interviewed in the school principals office, and the police did not again interview the minor until one week later. (Id. at p. 1138.)

In contrast to the situation in In re Ricky T., here, Cody felt so threatened that he called the police while the incident was occurring and did not emerge from the room until after the officer arrived and removed defendant from the mobile home. Further, defendant did not make a vague threat but threatened to stab Cody with the knife she had in her hand. Defendant, unlike the juvenile in In re Ricky T., had a weapon. Finally, defendant struggled with the officer when he attempted to handcuff her and yelled,  Just because I told that motherfucker I was going to stab him. I hate that motherfucker. I dont give a fuck. Here, the surrounding circumstances, defendants statements to the police, and the testimony of Cody and defendants sister established that defendants threats were immediate, unequivocal, and specific.

Defendant also argues that it was not reasonable for Cody to feel sustained fear because Cody, defendants sister, and their baby were safe in the room. She claims nothing in the record shows that defendant could have gained access to the bedroom. We disagree that the fact that Cody was in a locked room with his baby made it unreasonable for him to be afraid when defendant was screaming for him to come out so she could stab him, was pounding on the door, and had stabbed the wall. It is reasonable for a person in this situation to be afraid that defendant could somehow break into the room or break the locking mechanism to the door. Cody did not know how long it would take the police to respond to his call for help.

Accordingly, we conclude that substantial evidence supported the finding that defendant violated section 422.

II. The Probation Condition Barring Contact Between the Sisters

The court imposed a probation condition that prohibited defendant from having any contact with her sister and it gave the probation office the authority to modify or change this condition. Defendant contends that this condition is unconstitutionally overbroad and improperly restricts her contact with her sister. She also maintains that the condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481, 486, superseded by statute on another ground.

A juvenile court may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. (Welf. & Inst. Code, 730, subd. (b).) A probation condition is reasonable unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . . [Citation; fn. omitted.] (People v. Lent, supra, 15 Cal.3d at p. 486.) A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile. [Citation.] That discretion will not be disturbed in the absence of manifest abuse. [Citation.] (In Josh W. (1997) 55 Cal.App.4th 1, 5.)

[A] condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) Minors are deemed to be more in need of guidance and supervision than adults and a minors constitutional rights are more circumscribed. (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) Nevertheless, the probation conditions imposed on a minor may be void for vagueness or over breadth. (See In re Sheena K., supra, at pp. 890-891.)

The vagueness doctrine is premised on the due process concept of adequate notice. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115; accord In re Sheena K., supra, 40 Cal.4th at p. 890.) A violation of due process occurs when a statute either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application[.] (Acuna, supra, at p. 1115.) Thus, to withstand a vagueness challenge, a probation condition must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated [.] (In re Sheena K., supra, at p. 890.) Further, [a] probation condition that imposes limitations on a persons constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. (Ibid.) A probation condition may be overbroad if in its reach it prohibits constitutionally protected conduct. (People v. Freitas (2009) 179 Cal.App.4th 747, 750.)

Defendant contends that the courts probation condition barring contact with her sister impermissibly intrudes on her right to maintain a relationship with her sister. (See Trujillo v. Bd. of Cty. Comrs of Cty. of Santa Fe (10th Cir. 1985) 768 F.2d 1186, 1188-1189 [in an action by the mother and sister after the son/brother died while incarcerated, the court held that both mother and sister had a liberty interest in companionship but all family members had to prove a wrongful intent directed specifically at them]; Rivera v. Marcus (2nd Cir. 1982) 696 F.2d 1016, 1022-1026 [family life is a due process liberty].) However, neither the United States Supreme Court nor our Supreme Court have recognized a liberty interest for siblings consonant with that recognized for parents and children. (See, e.g., Ward v. City of San Jose (9th Cir. 1991) 967 F.2d 280, 283-284.) We need not consider whether barring contact between the sisters impacts a liberty interest because we conclude that this probation condition improperly impinges on defendants constitutionally protected right of association.

The freedom of association under the federal Constitution receives protection as a fundamental element of personal liberty and as an aspect of the First Amendment. (Roberts v. United States Jaycees (1984) 468 U.S. 609, 617-618.) Thus, any condition that limits these rights must be drawn narrowly to do no more than accomplish its rehabilitative goals without unnecessarily restricting the persons ability to associate with family members. (See People v. Garcia (1993) 19 Cal.App.4th 97, 102.) A condition infringing on constitutional rights must be tailored to fit the individual probationer. (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.)

Here, the People do not address any infringement on defendants constitutional rights and merely argue that the probation condition was reasonable because defendants sister testified that she was frightened by defendants conduct during the incident and that her heart was pounding when she ran to the bedroom and locked the door. The People further assert that the stay-away probation condition permitted the sister to contact defendant and gave the probation department authority to permit contact between the sisters. The People claim that this safety valve saves the condition. (See In re Antonio R., supra, 78 Cal.App.4th at p. 942.)

The People cite, In re Antonio R., supra, 78 Cal.App.4th 937, but the facts in that case are distinguishable. In In re Antonio, the probation order required the minor to stay out of a county where fellow gang members were located, unless the minor was accompanied by a parent or had the prior permission from his probation officer. (Id. at pp. 939-940.) The reviewing court held that the condition was not impermissibly overbroad because the minors criminal behavior was related to his associations with gang members in the county where he was barred and he lived in a different county. (Id. at p. 942.) The court concluded that any reasonable request to travel in the county where he was banned would be honored and this safety valve saved the condition. (Ibid.) The court explained: [T]he minor may not travel extra-locally without his parents cooperation or his probation officers assent. This does no more than reaffirm the traditional parental prerogative. (Ibid.)

Here, the probation condition, unlike the one in In re Antonio, interferes with the family relationship. Further, the restrictions on the minors associations in In re Antonio R. related to his criminal behavior with members of a gang in the banned area. In contrast, in the present case, defendants criminal behavior is not significantly connected to her sister. Defendants sister did not encourage her to get a knife and threaten Cody and defendants aggression was not directed towards her sister. Defendants sister did not say that she was generally afraid of defendant, but simply testified that she was afraid during this particular incident. There is no evidence that defendant harbors any hostility towards her sister and the record indicates that her anger towards Cody is partially due to his treatment of defendants sister.

Additionally, in In re Antonio R., the safety valve was that the parents could travel with the minor in the county where he was banned. The present case differs significantly because defendant cannot have contact with her sister even when either of her parents is present or gives consent for the contact. Even the district attorney expressed concern about this probation condition when advising, I dont think it would be right to keep sisters away from each other.

We conclude that the probation condition is not narrowly tailored to avoid or minimize the intrusion upon defendants constitutional rights. Since defendants anger was not directed towards her sister and her sister played no part in encouraging her behavior, the condition ruling out all contact between the sisters is not (1) primarily designed to meet the ends of rehabilitation and protection of the public and (2) reasonably related to such ends. (People v. Lopez (1998) 66 Cal.App.4th 615, 628.) The probation condition could have met the goals of rehabilitation and protecting the public if it simply limited the contact between defendant and her sister to peaceful contact. Thus, we strike the portion of the probation condition prohibiting all contact between defendant and sister and modify it to permit peaceful contact between the two.

DISPOSITION

The juvenile courts order is hereby modified so that the probation condition prohibiting contact between defendant and her sister is modified to permit only peaceful contact between defendant and her sister. The portion of the condition barring contact between defendant and Cody and giving the probation department authority to modify or eliminate this term as it deems fit remains unchanged. As so modified, the order is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

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[1] All further unspecified code sections refer to the Penal Code.

[2] The record sometimes refers to this person as defendants brother, defendants father, and the brother-in-law of defendants sister. It is clear from the record that a different person is defendants father.