In re Jonathan R.

Filed 6/13/08 In re Jonathan R. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Shep A. Zebberman, Referee. Affirmed.

Marta I. Stanton, 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, Steven D. Matthews and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

Jonathan R. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a finding that he committed a criminal threat (Pen. Code, 422), a felony. He was placed home on probation and contends the record does not support the courts finding that he committed a violation of Penal Code section 422. He also claims the court abused its discretion by excluding evidence of a prior domestic violence misdemeanor conviction of a prosecution witness. For reasons stated in the opinion, we affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

On March 19, 2007, Anna Romero, office manager at S.E.A. Charter School in East Los Angeles, heard appellant pass through the office screaming stuff. Appellant was very angry and walked out of the school. Alvaro Peniche, a youth service specialist in charge of discipline, walked out after him. Mr. Peniche was standing at the gate and appellant was on the sidewalk, screaming stuff at Mr. Peniche. When Ms. Romero got closer, she heard appellant say, Watch out. Im going to get you. Appellant appeared to be very upset. Mr. Peniche told appellant, You got to leave. You got to go home.

Approximately two minutes later, appellant returned to campus. As appellant approached, Mr. Peniche moved away from the gate. When appellant entered the campus, he was approximately two to three feet from Mr. Peniche and Mr. Peniche backed up. Mr. Peniche continued to back up and appellant followed him . . . around the parking lot and then after that, [appellant] just . . . left. Ms. Romero heard appellant say something to Mr. Peniche but could not hear what was said because there was freeway noise.

Mr. Peniche testified that prior to the incident, he spoke to appellant about his inappropriate attire. Appellant was wearing a long, white collared shirt and Mr. Peniche told him he was supposed to have it tucked in. Appellant said he would tuck it in, but after approximately 15 to 20 minutes when Mr. Peniche returned to appellants classroom, appellants shirt was still not tucked in. Mr. Peniche again told appellant to tuck in his shirt and left the classroom. When Mr. Peniche immediately returned to the classroom, appellant had not complied. Mr. Peniche told appellant to step outside of the classroom, and appellant started using profanity against [him]. He just kept repeating over and over, F you, F you, F you. Appellant walked toward the school exit, cussing all the way and Mr. Peniche walked behind him and told him, Its better for you to leave. Appellant stopped outside the front door, turned around and told Mr. Peniche, Im going come back after 4:00 and shoot you. Appellant was approximately ten to thirteen feet away from Mr. Peniche when he said this. When appellant said he was going to shoot Mr. Peniche, Mr. Peniche didnt think about it. Appellant kept walking and said he was going to get [Mr. Peniche] on the street. They were still approximately ten to thirteen feet apart. When Mr. Peniche told appellant there was no need to get him in the street because he was there, appellant came back in and started chasing him in the parking lot. Appellant walked towards Mr. Peniche and Mr. Peniche walked backwards. They went in a large circle. Appellant was asking him to stop and Mr. Peniche said, If you want me, you have to catch me. You got to get me. Im not going to stop. Mr. Peniche felt threatened. Appellants previous statements also made Mr. Peniche feel threatened. After appellant left, Mr. Peniche called the sheriff.

This was not the first time Mr. Peniche had had problems with appellant. Appellant repeatedly failed to comply with the schools dress code. Sometimes after being told to follow the dress code, appellant would comply. Mr. Peniche had never had to tell appellant to leave campus as a result of his refusal to comply with school rules. Appellant was dismissed from the school because he was disrespectful and made threats. Mr. Peniche testified that at the time of the hearing he did not know if appellant was capable or not [of doing] something.

Appellant testified he had just left the restroom with his shirt untucked when Mr. Peniche walked into the classroom and told him to go home. Appellant tried to explain why his shirt was not tucked in, but Mr. Peniche would not listen. He just told appellant to shut up and leave, to go home. Appellant got angry but did not cuss at him. He said, F, and bull this. Appellant walked out of class and Mr. Peniche got in front of him. Appellant asked if he could get his transcripts and papers. Mr. Peniche followed him out of the school and called him a punk. Appellant told him, I got you, but never said, Im going to shoot you, or Im going to get you after school.

Appellant was out of the front gate and Mr. Peniche continued to call him a punk. Mr. Peniche said, If you want to get me, get me right now. That is when appellant came back to school. Appellant told Mr. Peniche F.U. this and that. . . . Appellant kept telling him, fight me, fight me. He told appellant, If you want to hit me, come hit me. When Mr. Peniche was walking in circles, he kept telling appellant, Come and get me. Do you want me. I just want you to get me. I just want you to hit me. Thats all I want you to do. Appellant and Mr. Peniche were approximately three to five feet apart. Appellant did not attempt to hit him. He was not running after him, just walking towards him.

When appellant said, Im gonna get you, he was just saying that to scare Mr. Peniche. He wasnt really going to get him.

In finding count 1 of the petition to be true beyond a reasonable doubt, the court stated in pertinent part, The charge is trying to instill fear. Thats the essence of this claim. Thats what the minor, even if you take the minors version, thats what he did and thats what he wanted to do. So even if the minors version is accepted, I think, by his own admission, he was making criminal threats. I think the uncontroverted evidence was that Mr. Peniche was in sustained fear, said he was, he was walking backwards until the time that Ms. Romero came out, and thats when the minor left. [] With respect to the two versions, number one, as I said even if I took the minors version as true, the petition is by the minors own admission would be sustained . . . .

DISCUSSION

I

Appellant contends the record does not support the courts finding he committed a violation of Penal Code section 422 because there was no immediacy to the threat and the victim was not in sustained fear. The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.] [Citation.] In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.] [Citations.] (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.) This standard applies to cases based on circumstantial evidence. [Citation.] (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)

Although it is the duty of the [finder of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [finder of fact], not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. [Citation.] [Citations.] (People v. Figueroa (1992) 2 Cal.App.4th 1584, 1587.)

Penal Code section 422 provides in pertinent part, 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 . . . 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. . . .

[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone. The parties history can also be considered as one of the relevant circumstances. [Citations.] [Citation.] [Citations.] (People v. Mosley (2007) 155 Cal.App.4th 313, 324.)

The language of Penal Code section 422 requires the threat to be 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 . . . . (Italics added.) The statute punishes those threats which convey to the victim a gravity of purpose and an immediate prospect of execution. The use of the word so 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. The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim. (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157-1158.)

In re Ricky T. (2001) 87 Cal.App.4th 1132 cited by appellant is distinguishable. In that case, the minor cursed his teacher and stated he was going to get him after the teacher opened a door and accidentally struck the minor. The victim acknowledged there was no specific threat, and the minor denied threatening the victim, stating he did not mean to sound threatening. The police were not called until the following day. Further, as the court observed [t]he lack of surrounding circumstances information [was] striking. The appellate court concluded the remark Im going to get you was ambiguous on its face and no more than a vague threat of retaliation without prospect of execution. (Id. at pp. 1137-1138.)

In the present case, while appellant also stated he was going to get Mr. Peniche, that remark was accompanied by the further threat that appellant was going to get Mr. Peniche on the street and was going shoot him at 4:00. The circumstances surrounding appellants threat indicate the confrontation became more and more heated in contrast to the momentary encounter following an accidental battery in In re Ricky T. Here, appellant pursued Mr. Pinche around the parking lot, indicating a physical confrontation was imminent. Also, appellant admitted his intention in making the threat was to scare Mr. Pineche. Mr. Pineche testified he felt threatened and that he called the sheriff after appellant left school.

Additionally, there was sufficient evidence that Mr. Peniche was in sustained fear. [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.) While Mr. Peniche testified when appellant threatened to shoot him he initially didnt think about it, he testified he thereafter felt threatened based on appellants continued threats and actions and called the sheriff. Mr. Peniche testified although appellant had been dismissed from school, Mr. Peniche did not know whether appellant was still capable of harm.

II

Appellant contends the trial court abused its discretion by excluding evidence of Mr. Peniches prior misdemeanor conviction for domestic violence. On cross-examination, Mr. Peniche testified he did not consider himself to be a violent person. He did, however, remember being convicted of domestic violence in 1998. Mr. Peniche further testified he did not remember any other incidents, could not recall if the conviction was for a felony or misdemeanor but did recall the conviction was expunged from his record.

The prosecution moved to have any reference to Mr. Peniches conviction stricken, stating if it was a misdemeanor, the conviction alone was not sufficient and that the facts underlying the case were necessary. If it was a felony, well that may be another thing regarding moral turpitude.

Counsel for the defense argued there was an exception in that a conviction in and of itself on the record of misdemeanor is moral turpitude regardless of whether the facts are evident can be admitted, and I do have the case, but I dont have it with me. Counsel continued, Well, I believe the argument was that the facts underlying the conviction must come in. Im arguing that. That is not true. The actual domestic violence conviction, I believe, is to whether the alleged victim, whether they have a peaceful character. The minor has been charged with criminal threats, and if the witness is saying that he didnt do nothing to provoke any type of reaction from the minor or any curse words or any threats, he may have made in response to something that he may have done. I believe his previous incidents of violence and propensity to act violently would come in play.

The court responded, it would have to be either be a felony or the facts of the underlying incident. Second of all, Im not even sure that one incident 9 years ago that I dont know the facts about would even qualify to establish that so Im going to do you have evidence as to whether its a felony or misdemeanor or whether its been expunged for that matter?

The prosecution stated it had provided defense counsel with the information, that it was a misdemeanor and that it had been expunged. Appellants counsel stated he would do more research and asked the court to reserve its ruling.

When the court and parties again addressed the issue, the court summarized appellants argument stating, Lets start with this, you are relying on 452.5B of the Evidence Code[1]for the proposition that the misdemeanor conviction is admissible? Defense counsel responded, Well, your honor, People v. Wheeler,[2]Proposition 8 was held by the California Supreme Court to allow misdemeanor conduct, underlying conduct, to be admissible without a felony conviction . . . [] Also on Wheeler, it states theres a hearsay exception for misdemeanor convictions where the court stated that the legislature could, if it wanted, create a hearsay exception for misdemeanor convictions. After that case was decided, 452.5 of the Evidence Code was enacted. I believe that was enacted about four years after Wheeler was decided. [] Theres another case, People v. Duran[3]in which a certified minute order documenting a misdemeanor conviction was admissible, by that court, under 452.5 to prove the underlying conduct. So in this instance, if the court is saying that the misdemeanor conviction is not admissible to prove underlying conduct, then we would object to that.

The court clarified the record. Youre claiming that Evidence Code 452.5(B) is the section, is the authority for the admissibility of the testimony concerning the misdemeanor conviction for domestic violence. Defense counsel agreed, along with the two cases Ive cited.

The court responded, So thats not my understanding of Evidence Code section 452.5 (B). I dont believe misdemeanor convictions in and of themselves for domestic violence are admissible as a crime of moral turpitude. [] I believe that the underlying facts may or may not be depending upon what they are. I also think . . . that this Evidence Code section is talking about the admissibility of various types of documents and no document has been presented. [] So I am going to sustain the objection. I am not going to consider the testimony concerning the 1998 conviction, misdemeanor conviction for domestic violence.

Appellant did not recall Mr. Peniche to elicit testimony regarding the conduct upon which the conviction was based and did not attempt to introduce any documentary evidence of the prior conviction.

Appellant contends the trial court incorrectly ruled that a misdemeanor conviction was inadmissible without exercising its discretion pursuant to Evidence Code section 352. Appellant contends pursuant to People v. Wheeler, supra, 4 Cal.4th 284, prior misconduct amounting to a misdemeanor involving moral turpitude is admissible. Additionally, Evidence Code section 452.5, subdivision (b) provides a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction but also the commission of the underlying offense.

While it appears that initially appellant was asking to present character evidence of the victim pursuant to Evidence Code section 1103, appellant changed his theory and argued Mr. Peniches prior misdemeanor conviction for domestic violence was admissible as a crime of moral turpitude to impeach his credibility. As the trial court observed, however, appellant failed to comply with the requirements of Evidence Code section 452.5, subdivision (b). Under the terms of that section, Evidence Code section 452.5, subdivision (b) applies only to an official record of conviction certified in accordance with subdivision (a) of [Evidence Code] Section 1530. Appellant did not offer a certified record of any misdemeanor conviction upon which the juvenile court could then exercise its discretion pursuant to Evidence Code section 352 to determine admissibility.

Additionally, the record indicates the misdemeanor conviction was expunged. Pursuant to Evidence Code section 788, subdivision (c),[4]the credibility of Mr. Peniche arguably could not be impeached with the conviction. (See People v. Field (1995) 31 Cal.App.4th 1778, 1785.)[5]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.

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[1]Evidence Code section 452.5, subdivision (b) provides, An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.

[2]People v. Wheeler (1992) 4 Cal.4th 284.

[3]People v. Duran (2002) 97 Cal.App.4th 1448.

[4]Evidence Code section 788 provides in pertinent part, For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless: . . . . [] (c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense.

[5]While Evidence Code section 788, subdivision (c) refers to felony convictions that have been expunged, we can see no reason why the policy banning the use of expunged felonies should not apply even to a greater extent to expunged misdemeanor convictions.