Filed 1/3/18 In re Nathaniel S. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re NATHANIEL S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

NATHANIEL S.,

Defendant and Appellant.

F075256

(Super. Ct. No. JJD070053)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L. Boccone, Judge.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

Nathaniel S., age 16, was adjudged a ward of the court (Welf. & Inst. Code, § 602) after he was found to have made two misdemeanor criminal threats (Pen. Code, § 422; counts 1 & 2). He was placed on probation on various terms and conditions and now appeals, claiming the evidence is insufficient to sustain the findings on the two counts. We agree and reverse.
FACTS
D.T., who was 15 years old, and A.V., who was 17 years old, had band class with Nathaniel in high school. A.V. was five feet one inch tall. D.T. was about the same height or an inch taller.
On August 29, 2016, at around 12:20 p.m., the band was preparing to exit the band room to perform on the baseball field. D.T. recalled that she was putting on her tennis shoes, while Nathaniel was standing behind her, putting his instrument together. A.V. recalled that they were walking out of the band room, and Nathaniel was following behind them. A.V. guessed she and D.T. were walking too slowly. Nathaniel told the girls that he was going to hit them in the head with a bass clarinet. Nathaniel, who was about five feet away, was holding his bass clarinet at the time. D.T. had not done or said anything that would have provoked him into making the statement. She believed the threat was real, because he said it to someone else as well as to her.
D.T. just walked away. Although she was scared for her safety, she did not tell the teacher. Instead, she told the drum major first, as the drum major was the leader of the band. D.T. wanted the drum major to come with her to talk to the teacher. A.V. did not really pay attention to what was said and did not give it a lot of thought, but she was “[a] little bit” fearful at the time. A.V. stayed quiet and went on walking.
The next day, the band had band class and night rehearsal. A.V. “kind of kept [her] distance” from Nathaniel. According to D.T., at about 5:30 p.m., during night rehearsal, Nathaniel said he was going to skin her and turn her into a chair. He was standing about 10 feet behind her. He was not holding anything. D.T. felt scared when Nathaniel said that, “because that’s something . . . someone shouldn’t say to another person.” She did not know how to react and did not know if she should say something. She walked away and, later that night, told A.V. According to A.V., Nathaniel told her that he was going to skin her and turn her into a chair. He was sitting about three feet away from her. She turned to D.T. and told her. She did not really pay attention to it, although she was a bit afraid, because she did not know if he was going to do it. She just kept playing her instrument and listening to the teacher. The girls told their band teacher the next day.
There were about 100 people in band class. At the time of the first incident, there were about 50 people in the band room and about 50 people walking out to the field. The first incident occurred during the middle of the school day, when a number of adults were on campus. D.T. had not had any problems with Nathaniel since the second incident, and was not afraid of him.
DISCUSSION
Nathaniel contends the evidence is insufficient to support the juvenile court’s finding as to both counts. The applicable standard of review is the same regardless of whether a juvenile adjudication or a criminal conviction is at issue. (In re Roderick P. (1972) 7 Cal.3d 801, 808-809.)
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367).
“Where the circumstances support the trier of fact’s finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendant’s innocence. [Citations.]” (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) Reversal on the ground of insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’ ” the finding. (People v. Bolin (1998) 18 Cal.4th 297, 331.) On the other hand, “[e]vidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact. [Citations.]” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Not all threats are criminal. (In re George T. (2004) 33 Cal.4th 620, 630.) In order to prove the offense proscribed by section 422, “[t]he prosecution must prove ‘(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 threat . . . was “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 . . . ,” and (5) that the threatened person’s fear was “reasonabl[e]” under the circumstances.’ [Citations.]” (George T., supra, at p. 630, fn. omitted.)
In determining whether a violation of section 422 has been shown, we consider all the surrounding circumstances, not just Nathaniel’s words alone. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) Having done so, we find the evidence insufficient to establish elements (3) and (5), ante.
“A violation of section 422 is not complete upon the issuance of a threat; it depends on the recipient of the threat suffering ‘sustained fear’ as a result of the communication.” (People v. Wilson (2015) 234 Cal.App.4th 193, 201.) “[S]ustained” “means a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Such fear must be reasonable. (Ibid.) “[T]he threat must be such that it would cause a reasonable person to fear for his or her safety . . . . [Citation.]” (People v. Wilson (2010) 186 Cal.App.4th 789, 806.)
At the time of the two utterances at issue, A.V. and D.T. were in the presence of their bandmates — anywhere from perhaps 50 to 100 people. At the time of the bass clarinet statement, there were multiple adults on campus. At the time of the skinning statement, the band teacher was present. Each girl went home the night of each incident and saw her parents. Yet, neither girl reported the incident to an adult when it happened, or to her parents when she got home. Instead, they waited until the next day, at which time they told their band teacher. It appears they did not talk to a police officer until several days after the second incident. The record is devoid of any evidence, with respect to either occasion, that Nathaniel did anything to suggest to the girls that he intended to carry out the threat. Nor is there evidence of any history between Nathaniel and either girl that would have caused Nathaniel’s words to convey a gravity of purpose and immediate prospect of execution of the threat such that a reasonable person would have experienced more than momentary, transitory fear.
In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.) is instructive. In that case, Ricky, a 16-year-old student, left class to use the restroom. When he returned, he found the classroom door locked. When he pounded on it, the teacher opened the door, which struck Ricky. Ricky became angry, cursed the teacher, and said, “ ‘I’m going to get you.’ ” The teacher felt physically threatened and sent Ricky to the school office. When a police officer interviewed Ricky the next day, Ricky admitted being involved in a verbal altercation with the teacher, because he felt disrespected by the door hitting him in the head. A week later, the officer spoke to Ricky again. Ricky admitted telling the teacher, “ ‘I’m going to kick your ass,’ ” but denied making any physical movements or gestures to further the threat. The juvenile court found Ricky committed a misdemeanor violation of section 422. (Ricky T., supra, at pp. 1135-1136.)
The Court of Appeal reversed. It stated:
“Respondent relies too much on judging a threat solely on the words spoken. It is clear by case law that threats are judged in their context. [Citations.] By this standard, appellant’s ‘threats’ lacked credibility as indications of serious, deliberate statements of purpose. The lack of surrounding circumstances information is striking. There was no immediacy to the threat. Sending appellant to the school office did not establish that the threat was ‘so’ immediate. ‘The use of the word “so” in [section 422] indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.’ [Citation.]
“Here, the police were not called until the following day. Appellant was then interviewed in the school principal’s office. That execution of the threat was not so immediate is further evidenced by the fact that the police did not again interview appellant until one week later.
“Having no circumstances to corroborate a true threat, respondent claims the record contains the legal minimum required to sustain the finding. But the remark ‘I’m going to get you’ is ambiguous on its face and no more than a vague threat of retaliation without prospect of execution. [Citation.] Appellant’s ‘kick your ass’ and cursing statements were made in response to his accident with the door.
“In contrast to other cases upholding section 422 findings, there was no evidence in this case to suggest that appellant and [the teacher] had any prior history of disagreements, or that either had previously quarreled, or addressed contentious, hostile, or offensive remarks to the other. [Citations.] Nor was there evidence that a physical confrontation was actually imminent. [Citation.]
“Appellant’s intemperate, rude, and insolent remarks hardly suggest any gravity of purpose; there was no evidence offered that appellant’s angry words were accompanied by any show of physical violence — nothing indicating any pushing or shoving or other close-up physical confrontation. . . . There is no evidence that appellant exhibited a physical show of force, displayed his fists, damaged any property, or attempted to batter [the teacher] or anyone else.
“If surrounding circumstances within the meaning of section 422 can show whether a terrorist threat was made, absence of circumstances can also show that a terrorist threat was not made within the meaning of section 422. Here, there was no evidence of any circumstances occurring after appellant’s ‘threats’ which would further a finding of a terrorist threat.” (Ricky T., supra, 87 Cal.App.4th at pp. 1137-1139, fns. omitted.)
In contrast to the situation in Ricky T., Nathaniel’s statements were neither ambiguous nor made in response to any sort of provocation, other than possibly the girls walking too slowly. Nevertheless, we find a comparable lack of evidence as to multiple elements of the alleged violations of section 422.
DISPOSITION
The judgment is reversed.