Filed 2/6/14 In re Joshua L. CA2/1 (unmodified opn. attached)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE


In re JOSHUA L., a Person Coming Under                               B245686
the Juvenile Court Law.                                              (Los Angeles County
                                                                     Super. Ct. No. MJ21420)


THE PEOPLE,                                                    ORDER MODIFYING OPINION AND
                                                               DENYING PETITION FOR REHEARING
         Plaintiff and Respondent,
                                                               [NO CHANGE IN JUDGMENT]
         v.

JOSHUA L.,

         Defendant and Appellant.

In re                                                             B248397
                                                                 (Los Angeles County
         JOSHUA L.,                                              Super. Ct. No. MJ21420)

                   on Habeas Corpus.



THE COURT:
         It is ordered that the opinion filed herein on January 8, 2014, be modified as
follows:
         On page 2, second sentence of the third paragraph: Change “On March 16, 2012”
to “On or about March 16, 2012.”
      There is no change in the judgment.
      The petition for rehearing is denied.


______________________________________________________________________
CHANEY, Acting P.J.              JOHNSON, J.                 MILLER, J.*




      *   Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
                                              2
Filed 1/8/14 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE


In re JOSHUA L., a Person Coming Under                               B245686
the Juvenile Court Law.                                              (Los Angeles County
                                                                     Super. Ct. No. MJ21420)


THE PEOPLE,

         Plaintiff and Respondent,

         v.

JOSHUA L.,

         Defendant and Appellant.



In re                                                             B248397

         JOSHUA L.,                                              (Los Angeles County
                                                                 Super. Ct. No. MJ21420)
                   on Habeas Corpus.



         APPEAL from an order of the Superior Court of Los Angeles County, Akemi
Arakaki, Judge. Affirmed.
         ORIGINAL PROCEEDING; petition for a writ of habeas corpus, Akemi Arakaki,
Judge. Petition denied.
       Leslie G. McMurray, under appointment by the Court of Appeal, for Defendant,
Appellant and Petitioner.
       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, and Analee J. Brodie, Deputy Attorney General,
for Plaintiff and Respondent.
                                ________________________
       Joshua L. appeals from the juvenile court order declaring him a ward of the court
and ordering him home on probation, after the court found true the allegation that
Joshua L. made a criminal threat and denied Joshua L.’s motion to declare the crime a
misdemeanor. Joshua L. also filed a petition for habeas corpus, which we consider with
his appeal.1 We affirm the disposition and deny the petition for habeas corpus.
                                     BACKGROUND
       A petition filed May 29, 2012, pursuant to section 602 of the Welfare and
Institutions Code, alleged that in March 2012, then fifteen-year-old Joshua L. violated
Penal Code section 422, subdivision (a), by making a criminal threat against E.V.
(count 1) and another victim, Lloyd S. (count 2), and that the offenses were felonies.
After a contested adjudication hearing, the juvenile court found true the allegation that
Joshua L. threatened E.V., and dismissed count 2 as to Lloyd S. The court denied
Joshua L.’s motion to declare the offense a misdemeanor, and placed Joshua L. home on
probation.
       At the adjudication, E.V. testified that he attended high school with Joshua L. On
March 16, 2012, E.V. was using his telephone in class, “and . . . happened to be on
Facebook and went to Joshua’s profile and scrolled down through to a threat.” E.V.
“just . . . happened to scroll down and read it, and . . . was kind of offended just because
of the incident that occurred before.” E.V. read the following: “[I’]ll put a bullet into

       1  We grant Joshua L.’s motion to recognize his reply brief on appeal as a reply
filed in connection with his petition for habeas corpus.
                                              2
both of your heads and go to jail for it because [I] have enough balls to kill ya, so don’t
talk” “because the next time [I] will be holdin, and there won[’]t be shit talk for long
befor[e] [I] rip a hole in your gut pull everything out and stomp it out. [F]orgive me if
you don[’]t” “like my words but [I] don[’]t give a fuck because the next time [I] see you
there will be blood on the floor and some shit” “on the floor and some shit stolen from
you gust [sic] like you did to me. [T]his goes out to [E.V.] and [Lloyd S.]. [Y]ou butt
pirate faggots. . .” E.V. called the posting “a rat threat” that Joshua L. made out of
frustration, and was “pretty angry” when he saw it. E.V. “wasn’t afraid, but at the same
time you never know, and there’s a possibility that it could happen. But [he] just tried to
keep to [him]self that there’s really nothing to be afraid of.” He was afraid about a fight
breaking out between him and Joshua L., and believed that as tension between them
increased, the fight was drawing closer. E.V. was more concerned after he read the
posting. Asked if he believed Joshua L. “could carry out the threats,” E.V. responded, “I
don’t believe he would have,” but E.V. did believe Joshua L. could have carried them
out, including Joshua L.’s threat to put a bullet in his head.
       On cross-examination, E.V. testified that he and Joshua L. had been friends for at
least all of ninth grade, but their relationship had soured and they were no longer friends.
Joshua L. did not tell E.V. to look at the post, which was on Joshua L.’s Facebook page.
E.V. did not know Joshua L. to be a violent person; “[h]e was just a calm regular average
kid.” When E.V. reported the threat, he did so because he didn’t want to react, and
wanted someone to step in and make sure there was no fight.
       Ryan Butchart testified that he worked at the high school as a security guard, when
E.V. approached him on or about March 16, 2012. E.V. told Butchart that he had
received threats over Facebook, and showed him an image of Joshua L.’s Facebook page.
E.V. was scared that Joshua L. would do something to him on the way home, and was
nervous and upset, appearing anxious and fidgeting with his hands. The school was
closing for spring break, and the first day back Butchart reported his encounter to the
deputy sheriff and turned over the Facebook image. Butchart was present in the security

                                              3
office when the deputy interviewed Joshua L., who answered yes when Butchart asked
him if he had written the words. Joshua L. said “he was angry and frustrated with these
guys. He was tired of them always talking crap,” and he was venting.
       Deputy John Griffith testified that Butchart called him at the end of March 2012
and told him that a threat to a student had been made over Facebook. Butchart showed
him the Facebook image, and Deputy Griffith spoke with E.V. After E.V. told him about
the threat, Deputy Griffith asked him if he believed the threat, and E.V. said yes: “He
believed it was a valid threat.” Deputy Griffith then spoke with Joshua L. and asked him
if he had made the threats over Facebook. Joshua L. “told [Deputy Griffith] that he did,
but didn’t intend to do anything” and was just venting.
       Joshua L. moved for dismissal of both counts under Welfare and Institutions Code
section 701.1, arguing that the evidence had not shown that Joshua L. intended the post to
be understood as a threat, or that Joshua L. intended to convey the threat to E.V. “This
communication was posted on [Joshua L.’s] Facebook page. So he’s ranting or venting
as he told the officers on his Facebook page about these kids that there’s some dispute
about. He didn’t tell [E.V.] to go look at the page. There’s no testimony that he e-mailed
[E.V.] . . . There’s no testimony that he directly threatened him.” The prosecutor
responded that the post “specifically says: ‘This goes out to [E.V.] and [Lloyd S.].’ And
the first line of this Facebook posting says ‘I’ll put a bullet into both of your heads and go
to jail for it.’ [¶] . . . Respectfully, the people disagree with counsel’s description of
Facebook social media as a diary. This was posted on the internet on Facebook and was
very direct.” The court denied the motion as to count 1, but dismissed count 2.
       Joshua L. testified in his own defense. He agreed that he had a Facebook page and
answered yes when asked: “Did you post some things to [E.V.] that he testified about
earlier?” Joshua L. and E.V. had been friends during the school year, hanging out
together every day until they grew apart and “started changing.” Joshua L. used his
Facebook page to “speak [his] mind and put words out there for everyone to see.” He
had sent direct messages to someone before on Facebook. When he posted “things about

                                               4
[Lloyd S.] and [E.V.],” he “posted them only for [himself] to see. Kind of like on my
profile. Not for them.” He and E.V. were not friends on Facebook anymore at the time
he posted the message in March 2012, because their relationship had gone sour. He
never talked to E.V. about the posting. “It was not intentional for him to see.” Joshua L.
posted the message because he was angry at E.V.
       On cross-examination, Joshua L. testified that he had about 120 Facebook friends.
The March 2012 post addressed to E.V. and Lloyd S. was the only time he had said he
would put a bullet in anyone’s head. Joshua L. did not send the message directly to E.V.
and Lloyd S., but as far as he knew, the post was delivered directly to E.V. and Lloyd S.
One of the things that made Joshua L. angry enough to post the message was that E.V.
and Lloyd S. “tried to jump [him] after school one day,” although he never told that to the
security guard or the deputy. He spoke to E.V. and Lloyd S. that day and they threatened
to jump him, and Joshua L. posted the message an hour later. He had not told the
security guard or the deputy that he was afraid, but they had not asked him why he made
the post.
       In closing, the prosecutor argued that Joshua L. “didn’t send it one-on-one. He
didn’t send it by tagging to the specific victims. He posted it where at least 120 people
would be able to see it.” The post said, “‘This goes out to [E.V.] and [Lloyd S.],’” and
“[i]t’s very clear that this message was intended to be a threat based on the totality of the
message from the beginning to the end.” Although E.V. minimized it, “he was afraid,” as
the security guard and the deputy had testified. The threat was serious: “This is not a
diary, your honor. This is a social media site, and this minor made sure that as many of
his friends as possible saw his posting.”
       Defense counsel argued that Facebook “is a diary of some sort where people can
post,” and Joshua L. “didn’t post it on [the victims’] page, which he could have done or
e-mailed them directly.” E.V. stated that the message was “nonsense,” and that he was
upset and angry but not scared. The prosecutor rejoined that on closer questioning, E.V.
said he was afraid of escalating tension or a confrontation. When Joshua L. posted on his

                                              5
Facebook page, “[h]e was more than venting.” Joshua L. made a clear and specific threat
“directly communicated not only to everyone on his Facebook page, but directly to
[E.V.].”
       The court concluded that the prosecution had met its burden, and sustained the
petition as to count 1. Joshua L.’s counsel then moved that the count be reduced to a
misdemeanor, as Joshua L. “said he wasn’t going to do this. He was just talking,” and
had no history of probation. The court commented that it did not believe Joshua L. was
telling the truth when he testified, and the posting was a serious threat rather than
venting. The court denied the motion to reduce the count to a misdemeanor.
                                        DISCUSSION
       Joshua L. argues that there was insufficient evidence that he violated Penal Code
section 422, that the disposition violated his right to free speech, that he received
ineffective assistance of counsel, and that the juvenile court abused its discretion in
denying his motion to reduce his offense to a misdemeanor.
I.     Substantial evidence supported the finding that Joshua L. threatened E.V.
       Penal Code section 422, subdivision (a), penalizes “[a]ny 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 . . . .” “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

                                               6
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. [Citation.]” (People v. Toledo (2001) 26 Cal.4th
221, 227–228.)
       Joshua L. argues that the prosecution did not establish that he made the threat with
the intent that E.V. take it as a threat; that the posting was so unequivocal that it
conveyed to E.V. an immediate prospect of execution; and that the posting caused E.V.
sustained fear for his safety. “[A]ppellant has a heavy burden in demonstrating that the
evidence does not support the juvenile court findings.” (In re Ricky T. (2001) 87
Cal.App.4th 1132, 1136.) We have reviewed the entire record, viewing the evidence in
the light most favorable to the prosecution, and we conclude that a reasonable trier of fact
could have found these elements of criminal threat beyond a reasonable doubt. (See In re
Roderick P. (1972) 7 Cal.3d 801, 808–809.)
       A.     Joshua L.’s intent that E.V. take the Facebook post as a threat
       We examine Joshua L.’s post “on its face and under the circumstances in which it
is made” to determine whether substantial evidence existed of Joshua L.’s specific intent
that the post be taken as a threat. (Pen. Code, § 422, subd. (a).)
       On its face, Joshua L.’s Facebook post is a threat of violence against E.V. The
post stated that Joshua L. would be armed next time and would put a bullet in E.V.’s
head, “rip a hole in your gut[,] pull everything out and stomp it out.” The threat
continued “next time [I] see you there will be blood on the floor,” and states: “[T]his
goes out to [E.V].”
       Joshua L. argues that despite this language, the circumstances under which he
made the threat show that he did not intend that E.V. ever see the threat. Joshua L. points

                                               7
out that he posted it on his own Facebook page rather than send the post directly to E.V.,
who was no longer his Facebook friend.
       We reject this argument. E.V. testified that he was on Facebook on his phone,
went to Joshua L.’s profile, scrolled down and saw the threat. This is evidence that the
threat was on Joshua L.’s profile for all to see, whether or not they were one of
Joshua L.’s current Facebook friends. Although Joshua L. argues in his habeas petition
that he thought the post was “private,” there was no evidence that the threat was posted in
a private manner that would be inaccessible to E.V. Joshua L.’s argument that Facebook
privacy settings are complex and misleading is irrelevant, as there was no evidence at the
adjudication, including during his testimony, that he attempted to use any privacy settings
to make sure that E.V. did not see the post.2 (See Juror Number One v. Superior Court
(2012) 206 Cal.App.4th 854, 865 [where petitioner provided no specifics regarding the
operation of Facebook or his contractual relationship with the website, extent to which
his postings were disseminated to others was unclear and court could not determine his
legitimate expectation of privacy].)
       Joshua L.’s post said, “This goes out to [E.V.].” This is direct evidence that
Joshua L. intended E.V. to see the threat. Joshua L. testified at the adjudication that he
did not intend that E.V. see the post, but “‘“[c]onflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends. [Citation.]”’”
(People v. Manibusan (2013) 58 Cal.4th 40, 43.) The trial court determined that
Joshua L. was not credible, and was entitled to disbelieve Joshua L.’s testimony that he
did not intend E.V. to see the post. Further, on cross-examination, Joshua L. testified that

       2“Facebook users may decide to keep their profiles completely private, share
them only with ‘friends’ or more expansively with ‘friends of friends,’ or disseminate
them to the public at large. (See Facebook Help Center, http://www.facebook.
com/help/privacy (last visited Aug. 10, 2012).)” (United States v. Meregildo (S.D.NY.
2012) 883 F.Supp.2d 523, 525.)
                                               8
he did not send the post directly to E.V., but that he knew the post was delivered to E.V.
and Joshua L.
       The evidence of a defendant’s specific intent “‘is almost inevitably circumstantial,
but circumstantial evidence is as sufficient as direct evidence to support a conviction.’
[Citation.] . . . ‘We “must accept logical inferences that the [finder of fact] might have
drawn from the circumstantial evidence. [Citation.]” [Citation.]’” (People v.
Manibusan, supra, 58 Cal.4th at p. 43.) Here, the circumstantial evidence was that E.V.
was able to use his phone to access Joshua L.’s Facebook profile, scroll down, and read
the posted threat. The trial court could draw the logical inference that the threat was
posted on Joshua L.’s Facebook page in a manner easily accessible to E.V., supporting a
conclusion that Joshua L. intended that E.V. see the threat. The circumstances
reasonably justify the trial court’s findings, and a reviewing court’s conclusion the
circumstances might also be reasonably reconciled with a contrary finding does not
warrant reversal of the judgment. (Id. at p. 47.)
       B.       Unequivocal statements conveying an immediate prospect of execution
       The words of the post were unequivocal: “next time” Joshua L. would be armed,
and “the next time [I] see you there will be blood on the floor.” These unambiguous
statements were not a “vague threat of retaliation without prospect of execution” like
those in In re Ricky T., supra, 87 Cal.App.4th at page 1138, where the court found
insufficient evidence of a criminal threat when the minor cursed and said, “‘I’m going to
get you’” after a teacher accidentally hit him with a door. Nor was the threat in this case
comparable to the minor’s school project in In re Ryan D. (2002) 100 Cal.App.4th 854,
858, 863, a painting depicting the minor shooting a police officer who had patted him
down, which the court concluded was an ambiguous statement turned in for credit rather
than shown by the minor to the officer. Joshua L.’s words were explicit descriptions of
violence that he would inflict on E.V. the next time he saw him.
       Nevertheless, Joshua L. argues that his Facebook threat did not convey an
immediate prospect of execution. Joshua L. points out that E.V. said nothing to Joshua L.

                                              9
when he read the threat in class, instead reporting the threat to a school security guard,
and that the circumstances conveyed no immediate prospect that Joshua L. would carry
out his threat.
       We disagree. Rather than confront Joshua L., E.V. informed a school security
guard (Butchart), which shows that he desired the help of the authorities. He testified
that he did so because he was already afraid there would be a fight, and after the posting
he was more concerned. Butchart testified that E.V. showed him the post, was frightened
that Joshua L. would do something to him on the way home, and was anxious and
fidgeting with his hands. This is evidence that E.V. perceived an immediate prospect that
Joshua L. would carry out the threat.
       Joshua L. argues that there was a delay in the investigation until after spring break,
and Joshua L. was not contacted until sometime afterwards. Butchart testified that when
Joshua L. told him, school was closing for spring break, and Butchart notified the sheriff
the first day that school resumed. Butchart’s delay in notifying the sheriff until school
was back in session is not evidence of E.V.’s perception regarding the immediacy of the
threat. E.V. testified that he was afraid something would happen on the way home that
day. Butchart did notify authorities immediately when school was back in session, which
is when E.V. was again likely to encounter Joshua L.
       C.         The victim’s sustained fear for his own safety
       Joshua L. argues that there was insufficient evidence that E.V. was ever placed in
sustained fear for his own safety. E.V.’s testimony on this issue was initially somewhat
contradictory. E.V. testified that he was “kind of offended” by the post, which angered
him. He stated he was not afraid, but also testified: “[B]ut at the same time you never
know, and there’s a possibility that it could happen. But I just tried to keep to myself that
there’s really nothing to be afraid of.” E.V. reported the threat because the tension was
already escalating and the post increased his concern; he “didn’t want it to explode into
something more,” or a fight breaking out. He stated that while he did not think Joshua L.
would carry out all the threats, he did believe Joshua L. could have, and he reported the

                                               10
threat because he wanted someone to step in and “make sure there was no fighting or
anything.”
       Burkhart’s testimony that E.V. was scared that Joshua L. would do something to
him on the way home and appeared nervous and upset is also evidence that E.V. was in
fear. Further, Deputy Griffith testified that when he interviewed E.V. after spring break,
E.V. told him he believed the threat was valid.
       Any conflict in the evidence does not require that we reverse the judgment. The
majority of E.V.’s testimony was that he was worried and believed it was possible that
Joshua L. would act on the threat. The trial court was entitled to accept some portions of
E.V.’s testimony while rejecting others. (People v. Allen (1985) 165 Cal.App.3d 616,
623.) Viewing the testimony in the light most favorable to the judgment, the trial court
could have concluded that E.V. was in sustained fear.
II.    The disposition did not violate Joshua L.’s constitutional right to free speech.
       Joshua L. argues that his constitutional rights were violated when the trial court
sustained the petition, because his Facebook post was protected speech under the First
Amendment. We apply independent review to this claim, to distinguish a criminal threat
from constitutionally protected speech. (In re George T. (2004) 33 Cal.4th 620, 634.)
This is not de novo review. “Because the trier of fact is in a superior position to observe
the demeanor of witnesses, credibility determinations are not subject to independent
review, nor are findings of fact that are not relevant to the First Amendment issue.
[Citations.] . . . [U]nder independent review, an appellate court exercises its independent
judgment to determine whether the facts satisfy the rule of law. Accordingly, we will
defer to the juvenile court’s credibility determinations, but will ‘“‘make an independent
examination of the whole record’”’ [citation], including a review of the constitutionally
relevant facts ‘“de novo, independently of any previous determinations by the [juvenile
court]”’ [citations] to determine whether minor’s poem was a criminal threat entitled to
no First Amendment protection.” (Ibid.) “[T]he words actually used must constitute a
threat in light of the surrounding circumstances.” (Id. at p. 636.)

                                             11
       The First Amendment does not protect “‘[t]rue threats,’ [which] encompass those
statements where the speaker means to communicate a serious expression of an intent to
commit an act of unlawful violence to a particular individual or group of individuals.”
(Virginia v. Black (2003) 538 U.S. 343, 359 [123 S.Ct. 1536, 155 L.Ed.2d 535].) “The
speaker need not intend to carry out the threat”; prohibiting “true threats” protects
individuals from fear of violence and the disruption engendered by fear, as well as the
possibility that the threatened violence will occur. (Id. at p. 360.)
       Our independent review of the record shows that Joshua L.’s post was a true
threat. Joshua L. addressed E.V. by name, stated, “[I’]ll put a bullet into both of your
heads,” stated that he would be armed the next time, would eviscerate E.V., and would
leave “blood on the floor.” This was a serious and unequivocal expression of an intent to
commit unlawful violence against E.V., whom Joshua L. targeted with “this goes out to
[E.V.].” The record also shows that the threat was posted on Joshua L.’s easily
accessible Facebook profile, and we defer to the trial court’s decision to disbelieve
Joshua L.’s testimony that he did not intend E.V. to see it. E.V. reacted to the possibility
that the threatened violence would occur by notifying a school security guard, and
testified that he wanted protection from any confrontation.
       The threat in this case is not a poem, whose ambiguous language “may mean
different things to different readers,” in a case where “there was no history of animosity
or conflict between the students.” (In re George T., supra, 33 Cal.4th at pp. 636–637.)
The threat was vividly specific, and Joshua L. and E.V. had had a falling out. Both the
language of the threat and the surrounding circumstances support the conclusion that
sustaining the petition did not violate Joshua L.’s First Amendment rights.
III.   Counsel was not ineffective.
       In his direct appeal and his habeas petition, Joshua L. argues that his counsel was
ineffective for “failing to clarify appellant’s one word response to a string of confusing
colloquia on the record.” On cross-examination, the prosecutor asked Joshua L. if he sent
the message directly to E.V. or posted anything to indicate that he was just kidding or

                                              12
venting, and Joshua L. answered “[n]o.” Then the prosecutor asked: “So, as far as you
knew, the post you put on your Facebook page with your 120 friends addressed to
[E.V.] . . . was delivered to [E.V.] . . . . Would that be fair to say?” Joshua L. asked,
“That was directly to [E.V.] . . . ?,” and the prosecutor answered, “Yes.” Defense counsel
objected that the question had been asked and answered, and the court denied the
objection. Joshua L. then answered, “Yes.”
       Joshua L. argues that this answer contradicted his statements that he did not send
the post directly to E.V., and that therefore his counsel should have clarified this.
Joshua L. attaches a declaration to his habeas petition in which he states that he has read
the reporter’s transcript but remembers the question differently. According to Joshua L.,
he was “asked whether, as far as I knew, the post which I had put on my Facebook page
would not be delivered to E.V. and [Lloyd] S. I thought, when I answered ‘yes,’ that I
was testifying that, as far as I knew, the post which I had put on my Facebook page
would not be delivered to E.V. and [Lloyd] S.” He also states that he did not believe that
members of the public who were not his Facebook friends could read his posts.
       Joshua L’s declaration is inconsistent with his argument that counsel was
ineffective. If the question to which he answered “yes” was as he describes it (with a
meaning directly opposite to the question as reflected in the transcript), defense counsel
did not err in failing to object and clarify his answer. In any event, the report of the
official court reporter, when transcribed and certified as is the transcript in this case, is
prima facie evidence of the testimony and proceedings. (Code Civ. Proc., § 273,
subd. (a); see People v. Huggins (2006) 38 Cal.4th 175, 190 [“we rely upon the court
reporter to accurately record the words spoken in court”].)
       A successful claim of ineffective assistance requires inadequate performance by
counsel and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688,
690–694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) Counsel objected to the question whether
the post had been delivered to E.V. as asked and answered, and the court denied the
objection. Even assuming that after the court denied counsel’s objection, counsel should

                                               13
have somehow clarified Joshua L.’s affirmative answer, we see no prejudice as a result.
In closing argument, the prosecutor did not argue that Joshua L. delivered the post to
E.V. Instead, the prosecutor acknowledged that Joshua L. did not “send it one-on-one.
He didn’t send it by tagging to the specific victims. He posted it where at least 120
people would be able to see it.” The prosecutor later argued that the threat was directly
communicated to everyone on Joshua L.’s Facebook page and “directly to [E.V.] and
Lloyd [S.],” but that was in the context of whether the language was a direct and specific
threat, not whether Joshua L. sent or otherwise delivered the threat specifically to its
targets. Joshua L. has not established a reasonable probability that if counsel had
clarified his answer, the outcome of the adjudication would have been different. (Id. at
pp. 696–697.)
IV.    The trial court did not abuse its discretion in declaring the offense a felony.
       Joshua L. argues that the trial judge should have declared the disposition on
count 1 to be a misdemeanor. A criminal threat in violation of Penal Code section 422 is
a “wobbler” offense which if committed by an adult, may be charged and punished as a
felony or a misdemeanor. (Pen. Code, § 422, subd. (a).) Welfare and Institutions Code
section 702 requires the juvenile court to declare expressly whether such an offense is a
felony or a misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199, 1207.) The trial
court did so.
       The trial court’s exercise of its discretion whether to reduce a wobbler offense
charged as a felony to a misdemeanor is “an intensely fact-bound inquiry taking all
relevant factors, including the defendant’s criminal past and public safety, into due
consideration; and the record must so reflect.” (People v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 981–982.) The court should consider the nature of the offense,
the defendant’s appreciation of and attitude toward the offense, or his traits and character
as evidenced by his demeanor and behavior at trial. The defendant must demonstrate that
the court’s decision to deny his motion to reduce was irrational or arbitrary. (Id. at
pp. 977–978.)

                                             14
       The trial court heard argument from defense counsel and from the prosecutor on
the motion to reduce, and stated: “Based on the testimony I heard from [Joshua L.], I
don’t think he was telling the truth to be quite honest, and I do agree with [the
prosecutor]. I think there’s a pretty clear history [that Joshua L. and E.V. had been
friends until a month earlier]. There’s probably a lot more than we do know, but I take it
very seriously that these threats—yes, we can try to minimize them and act like it’s just
venting. They’re significant threats. They’re very serious. There’s also a lot of damage
and harm that can come from this type of behavior, and I don’t think based on the
circumstances and based on what I’ve heard that would warrant the reduction to a
misdemeanor.”
       The juvenile court considered the serious nature of the threat, stated that it
believed Joshua L. was not telling the truth, and considered the harm done by such
serious threats, in the course of exercising its discretion. Joshua L. has not demonstrated
that the court acted irrationally or arbitrarily in denying his motion to reduce the offense
to a misdemeanor.




                                             15
                                    DISPOSITION
      The juvenile court’s order is affirmed. The petition for writ of habeas corpus is
denied.
      NOT TO BE PUBLISHED.


                                         JOHNSON, J.


We concur:


      CHANEY, Acting P. J.


      MILLER, J.*




      *   Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
                                           16
