In re A.M.

Filed 1/22/10 In re A.M. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

A.M. appeals from a judgment declaring her to be a ward of the court and placing her on probation in a delinquency proceeding under Welfare and Institutions Code section 602 following a contested jurisdiction hearing. (Welf. & Inst. Code,  725, subd. (b), 800, subd. (a).) Appellant claims that the evidence was insufficient to establish a violation of Penal Code section 422.[1] She also claims that two probation conditions, a gang condition and a weapon condition, are unconstitutionally vague and overbroad.

We modify the probation conditions and affirm.

A. Procedural History

A juvenile wardship petition filed against appellant alleged six counts: making criminal threats against two specified persons on or about December 18, 2008 ( 422) (count one); exhibiting a deadly weapon in the presence of the same two persons on or about December 18, 2008 ( 417, subd. (a)(1)) (count two); petty theft on or about May 11, 2008 ( 484, 486-488) (count three); two counts of public intoxication on or about May 19, 2008 and on or about June 23, 2008 ( 647, subd. (f)) (counts four and five); and battery of an emergency medical technician on or about June 23, 2008 ( 242, 243, subd. (b)) (count six).

Appellant admitted counts three, four, five, and six and the court sustained these allegations as misdemeanors. A jurisdiction hearing was held regarding counts one and two. The court found the allegation of committing a criminal threat ( 422) was true beyond a reasonable doubt as to one alleged victim, appellant's sister M., and was not true as to the other alleged victim, appellant's mother. The court found the evidence was insufficient as to count two, the alleged exhibition of a deadly weapon, and dismissed the count. Appellant agreed to participate in the Santa Clara County Juvenile Drug Treatment Court (JTC) program.

In its March 19, 2009 disposition, the court declared appellant a ward of the court, returned her home on probation under specific terms and conditions and placed her under the supervision of a probation officer.

B. Sufficiency of the Evidence

"In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat-which may be 'made verbally, in writing, or by means of an electronic communication device'-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 or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances. (See generally People v. Bolin (1998) 18 Cal.4th 297, 337-340 & fn. 13 . . . .)"[2] (People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Appellant argues that the evidence disclosed that her sister experienced merely transitory fear as a result of her threat and her sister mainly was afraid that appellant was going to attempt suicide. She maintains that the evidence is insufficient to prove the "sustained fear" element.

In considering an insufficiency of the evidence claim in a juvenile proceeding, this "court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781]; In re Roderick P. (1972) 7 Cal.3d 801, 808-809 [sufficiency of the evidence standard applicable in criminal cases applies in juvenile delinquency proceedings].) "The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.) " ' " 'If the circumstances reasonably justify the trier of fact's 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.]" (In re George T., supra, 33 Cal.4th at p. 631.)

The evidence at the jurisdiction hearing showed the following facts with regard to the alleged criminal threats offense. On the evening of December 18, 2008, appellant's sister M., who was 15 years of age at the time of her testimony on January 30, 2009, witnessed their father ask appellant why she was drunk. Appellant and the father began arguing. In addition to being upset about appellant being drunk, their father was upset because a boy had been in bed with appellant when he came home. Appellant's father asked the boy to leave. Appellant became angry and, when their father grabbed appellant by the arm, appellant began pushing and trying to get away.

Appellant's father left for work. Appellant's mother, her sister M., and her baby sister were still at home.

Appellant was trying to leave the house and appellant's mother was trying to prevent appellant from leaving by holding her down on the couch. M. telephoned police because appellant was "being a bit violent." M. called because she did not want "anything more to happen" and she had noticed that appellant became violent, aggressive, and argumentative when she drank alcohol, which scared M.

Officer Kevin McClure responded to a domestic disturbance at appellant's home at around 10 p.m. on December 18, 2008. When he arrived, appellant's mother was holding down appellant, who was angry and "saying bad words," on the couch. Appellant was "struggling and yelling and flailing her body." Appellant "appeared to be actively resisting her mother's attempts to restrain her."

The officer attempted to talk to appellant. Appellant was "very verbally aggressive, verbally combative, and she displayed objective symptoms of alcohol intoxication." Although she had been instructed to remain seated on the couch, she defiantly "attempted to walk past officers into her bedroom . . . ." Appellant was using expletives toward the officers. Appellant was placed in handcuffs to restrain her.

M. explained to Officer McClure what had happened. She told the officer that appellant had hit their father after the father had told appellant's boyfriend to leave the house. M. asked police to take appellant away because she did not want appellant to harm their mother, their baby sister, or her. As expressed to the officers, however, the primary concern of appellant's mother and M. was that appellant was "going to leave the house and she was intoxicated."

Police indicated to appellant's mother and M. that they could not take appellant into custody because the battery had been against their father and he was not there but indicated that they should call again if there were further problems.

After police left, M. went into the bedroom, where appellant was sitting on the bed. M. recalled that when she tried to speak to appellant, appellant gave her "a look," got up, and threw a cup of water at her, which scared her. When M. indicated that she would call the police if M. became violent, appellant said she was "gonna grab a knife right now and kill your ass" if M. called. M. was afraid for her safety after that statement. Appellant was "out of control." She ran out of the bedroom and went outside their home.

Meanwhile, appellant's mother was feeding appellant's baby sister. Appellant grabbed a dull knife and tried to cut herself but she did not threaten her mother with the knife. Appellant told her mother, "Mommy, I am your problem. I do not want to live anymore. I'm your problem. I don't want to cause you any suffering." Appellant dropped the not sharp knife and went to grab another and her mother told her to "leave that alone." The mother thought appellant had brought the second knife into her bedroom.

Appellant grabbed and threw nativity figurines on the floor, breaking them. From outside, M. could hear appellant yelling and glass breaking. M. briefly walked into the house and saw appellant throwing objects on the floor but she was not scared at that moment. Appellant's mother brought the baby outside, where she told M. that appellant had a knife and directed her to call police. Appellant's mother was afraid the appellant might hurt herself. M. telephoned police again because her mother had said appellant had a knife, although M. had not seen appellant with a knife. Appellant's mother waited outside their home with M. and the baby.

Officer McClure received a dispatch call to return to the appellant's home within 10 minutes after they left. Appellant's sister M. and her mother were outside when police returned. M. told Officer McClure that appellant "had threatened her with a knife and that they were afraid that [appellant] was going to cut herself with the knife." The officer later recalled that M.'s demeanor was "very calm, considering the situation."

Inside the home, the officer observed shattered, broken porcelain scattered between the living room and the kitchen. The officer located appellant in the bedroom, where she was packing a backpack and sobbing. She was unarmed. He did not see any cuts to her wrist.

Appellant's mother showed Officer McClure a kitchen knife, about eight inches long. The officer took the knife as evidence. After placing appellant under arrest, the officer conducted a taped interview of M.

"Although the statute does not define the term, Penal Code section 422 requires that the defendant's threat cause the victim to be in 'sustained fear.' " (People v. Allen (1995) 33 Cal.App.4th 1149, 1150-1151.) The word "sustained" has been interpreted to mean "a period of time that extends beyond what is momentary, fleeting, or transitory." (Id. at p. 1156 [15 minutes of fear sufficient].) "Section 422 demands that the purported threat be examined 'on its face and under the circumstances in which it was made.' " (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.)

In In re Ricky T., supra, 87 Cal.App.4th 1132, a high school student left class to use the restroom and, upon returning, "found the classroom door locked and pounded on it." (Id. at p. 1135.) When the teacher opened the door, the door struck the student, who became angry, cursed the teacher and told the teacher, "I'm going to get you." (Ibid.) The teacher "felt threatened and sent [the student] to the school office." (Ibid.) The appellate court found the evidence insufficient to sustain a finding that the student had made a criminal threat because "[t]here was no immediacy to the threat" (id. at p. 1137), the teacher and student had no prior history of conflict (id. at p. 1138), the "words were not "accompanied by any show of physical violence" (id. at p. 1138), there was no evidence that the teacher "felt fear beyond the time of the angry utterances" (id. at p. 1140), and police were not called until the next day (id. at p.1138).

In this case, in contrast to the circumstances of In re Ricky T., appellant threatened to kill M. if she called police after throwing a glass of water at her, after engaging in aggressive behavior toward other family members, and after a visit from police whom M. had called. The juvenile court could reasonably infer that M.'s fear was more than momentary from the evidence showing that appellant's threat made M. fear for her safety and caused her to run out of the bedroom and go outside the home, where she basically remained until police returned after a second call. The evidence, viewed in the light most favorable to the court's finding below (see People v. Johnson, supra, 26 Cal.3d at p. 578), was sufficient to establish that appellant's criminal threat caused M. to experience "sustained fear" even if the circumstances might also have supported a contrary finding by the court. (See In re George T., supra, 33 Cal.4th at p. 631.)

C. Probation Conditions

1. Legal Principles

A juvenile court "may make any and all reasonable orders for the conduct of the ward" and "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).) Nevertheless, "[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,' if it is to withstand a challenge on the ground of vagueness. [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890.) In addition, "[a] probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]" (Ibid.)

2. Gang Condition

One of the probation conditions required appellant to "not frequent any areas of gang related activity and not participate in any gang activity." Appellant argues that this condition is overbroad because it prohibits her from "going places not known to her to be gang areas." (Italics added.) She also complains that the meaning of the word "frequent" is obscure. Appellant asks this court to modify the condition to provide that she "not knowingly visit any areas of gang related activity and not participate in any gang activity."

"The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, 7).' [Citation.]" (In re Sheena K., supra, Cal.4th at p. 890.) In In re Sheena K., a probation condition forbid her from associating with anyone disapproved of by the probation officer. (Id. at p. 878.) The appellate court modified the condition to prohibit association "with anyone whom she knew was disapproved of by her probation officer." (Ibid.) The Supreme Court "agree[d] with the Court of Appeal that in the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague." (Id. at p. 891, fn. omitted.) The Supreme Court stated that "we agree with the Court of Appeal that modification to impose an explicit knowledge requirement is necessary to render the condition constitutional. (See, e.g., Justin S., supra, 93 Cal.App.4th at p. 816 . . . [probation condition modified to forbid the minor's association ' "with any person known to you to be a gang member" ']; People v. Lopez, supra, 66 Cal.App.4th at p. 629, fn. 5 . . . [condition of probation modified to prohibit defendant from associating ' "with any person known to defendant to be a gang member" ']; People v. Garcia (1993) 19 Cal.App.4th 97, 103 . . . [condition of probation modified to provide that the defendant 'is not to associate with persons he knows to be users or sellers of narcotics, felons, or ex-felons'].)" (Id. at p. 892.)

We agree that an express knowledge requirement must be inserted in this gang condition to avoid vagueness problems. We also recognize that the verb "frequent" may be somewhat unclear because it commonly means "to associate with, be in, or resort to often or habitually: visit often . . . ." (Webster's 3d New Internat. Dict. (1993) p. 909.) While this definition of "frequent" arguably creates ambiguity because it is unclear how many visits would constitute "often or habitually," it is most dubious that the juvenile court was granting permission for appellant to occasionally visit "areas of gang related activity." According to the Oxford American Thesaurus of Current English, synonyms for the verb "frequent" include the word "visit" and the informal phrase "hang out at." (The Oxford American Thesaurus of Current English (2002) [as of Dec. 11, 2009].) To avoid any vagueness problem with respect to the word "frequent," the word "visit" will be substituted as suggested by appellant.

3. Condition Prohibiting Use or Possession of Dangerous or Deadly Weapon

The challenged weapon probation condition requires appellant to "not own, use, or possess any dangerous or deadly weapons and not remain in any building, vehicle, or the presence of any person where dangerous or deadly weapons exist." Appellant contends that this condition is both unconstitutionally vague and overbroad. She complains that the word "weapon" has an uncertain meaning and could refer to "anything from a letter opener, to a hammer or a knife." She further states that it is "overbroad because it lacks the requirement that she knowingly believes that a weapon is present in the location." She suggests that, instead of the phrase "dangerous or deadly weapons," the phrase "items that she knows to be capable of being used in a dangerous or deadly manner with intent to use it in such manner" be used. She asserts that such modification would remedy the vagueness problem because "it specifies that [she] have knowledge of another's intent to use the item in a dangerous fashion."

The California Supreme Court has observed: "Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. (People v. Graham (1969) 71 Cal.2d 303, 327 . . . , disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 32 . . . .) Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury." (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) This second group of objects was discussed in People v. Graham (1969) 71 Cal.2d 303, disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 32: " '. . . The instrumentalities falling into the second class, such as ordinary razors, pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not "dangerous or deadly" to others in the ordinary use for which they are designed, may not be said as a matter of law to be "dangerous or deadly weapons." When it appears however, that an instrumentality other than one falling within the first class is capable of being used in a "dangerous or deadly" manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a "dangerous or deadly weapon" may be thus established, at least for the purposes of that occasion.' [Citation.]" (Id. at pp. 327-328 [under former section 211a, first degree robbery included a robbery perpetrated by a person "armed with a dangerous or deadly weapon"].)

In In re R.P. (2009) 176 Cal.App.4th 562, 568, an appellate court recently determined, "legal definitions of 'deadly or dangerous weapon,' 'deadly weapon,' 'dangerous weapon,' and use in a 'dangerous or deadly' manner, consistently include the harmful capability of the item and the intent of its user to inflict, or threaten to inflict, great bodily injury." But while the meaning of phrase "dangerous or deadly weapon" may be established in criminal law (see CALCRIM No. 3145 (2009 ed.) p. 903), we cannot agree with In re R.P. that the meaning ascribed by it has such a "plain common sense meaning" that a person subject to a probation condition would necessarily understand exactly what is encompassed by the phrase. (Cf. In re R.P., supra, 176 Cal.App.4th at p. 565 ["a probation condition prohibiting a minor from possessing any 'dangerous or deadly weapon' is sufficiently precise for the probationer to know what is required of him"], p. 568 ["the phrase 'dangerous or deadly weapon' is clearly established in the law"], p. 570 [phrase " 'dangerous or deadly weapon' has a plain commonsense meaning sufficient to put [minor] on notice of the conduct prohibited by the probation condition"].)

In general, to be considered a "deadly or dangerous weapon" under California criminal law, the object must be capable of causing death or great bodily injury and minor or even moderate bodily harm does not constitute great bodily injury. (See CALCRIM No. 3145 (2009 ed.) p. 903; see also People v. Miller (1977) 18 Cal.3d 873, 883, disapproved on another point in People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 8.) We do not think that appellant, as a lay person, would necessarily understand that the phrase "deadly or dangerous weapon" is limited to objects capable of causing lethal or great bodily injury. More importantly, we think it highly dubious that the juvenile court intended the phrase "deadly or dangerous weapon" to be understood by appellant to exclude weapons capable of causing bodily injury less than great bodily injury but more than insubstantial harm.

Unless otherwise intended or apparent from their context, words are generally construed according to their ordinary meaning. (See Civ. Code,  13 ["Words and phrases are construed according to the context and the approved usage of the language"]; Code Civ. Proc.,  16 ["Words and phrases are construed according to the context and the approved usage of the language"].) The word "dangerous" is defined by dictionaries as "able or likely to cause harm or injury" (The New Oxford American Dict. (2d ed. 2005) [as of Dec. 11, 2009]), as "[b]eing able or likely to do harm" (The American Heritage College Dictionary (3d ed. 1997) p. 351), and as "able or likely to inflict injury or harm" (Merriam Webster's Collegiate Dictionary (10th ed. 2001) p. 292). We have no reason to believe that this is not the meaning intended by the court.

As to those objects whose ordinary use is not for inflicting death or bodily injury, we agree that the deadly or dangerous nature of such object arises from its capability for being used to cause death or bodily injury and from the user's intent to use it in such a deadly or dangerous manner. To avoid constitutional vagueness or overbreadth problems, these qualifications must be made explicit. We further agree that an express knowledge requirement must be added to address constitutional concerns with regard to those objects that have innocent uses and purposes and those places where, unbeknownst to appellant, such weapons are present. (See In re Sheena K., supra, 40 Cal.4th at pp. 890-892.)

Disposition

The probation condition regarding gang activity is modified as follows: "26. That the subject not visit any areas she knows are areas of gang-related activity and not participate in activity that she knows is gang activity." The weapon condition is modified as follows: "27. That the subject not own, use, or possess any object that she knows is a dangerous or deadly weapon or any object that she knows can be used to cause bodily injury or death where she intends such harm; that the subject not remain in any place where she knows that another person is likely to use any such objects to cause bodily injury or death." As modified, the judgment is affirmed. Upon remand, the court shall amend the order of probation to reflect the above changes to the probation conditions.

_____________________________

ELIA, Acting P. J.

WE CONCUR:

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MIHARA, J.

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McADAMS, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] In People v. Bolin (1998) 18 Cal.4th 297, the California Supreme Court held that "prosecution under section 422 does not [necessarily] require an unconditional threat of death or great bodily injury" and disapproved contrary language in People v. Brown (1993) 20 Cal.App.4th 1251, which had overturned criminal threat convictions based upon insufficiency of the evidence where evidence had shown defendant had threatened to kill victims if they called police. (People v. Bolin, supra, 18 Cal.4th at p. 338.) The Supreme Court confirmed in People v. Bolin, supra, 18 Cal.4th 297: " '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.]" (Id. at p. 340.) Thus, the threat must "be of such a nature as to convey a gravity of purpose and immediate prospect of the threat's execution." (In re George T. (2004) 33 Cal.4th 620, 637.)