Filed 4/8/15 In re T.G. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

In re T.G., a Person Coming Under the                                H040915
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. 313JV40128C)

THE PEOPLE,

         Plaintiff and Respondent,

         v.

T.G.,

         Defendant and Appellant.


         The juvenile court found true the allegations that T.G. (minor) threatened his
teacher in violation of Penal Code section 71, subdivision (a).1 On appeal, minor argues
insufficient evidence supports the juvenile court’s findings, and the juvenile court erred
when it ordered him to be jointly and severally liable to pay the cost of his public
defender.
         We conclude sufficient evidence supports the juvenile court’s finding that minor
violated section 71. However, we modify the order to clarify that minor is not liable to
pay the attorney fees imposed by the court. As modified, we affirm the order.



         1
        Further unspecified statutory references are to the Penal Code. Petition C alleges
that minor violated section 71, subdivision (1). However, section 71, subdivision (1)
does not exist. Subdivision (a) of section 71 sets forth the elements of the offense of
threatening a public employee.
                         FACTUAL AND PROCEDURAL BACKGROUND
       Procedural History
       On June 19, 2013, a juvenile wardship petition (Petition A) was filed pursuant to
Welfare and Institutions Code section 602 charging minor with auto theft in violation of
Vehicle Code section 10851, subdivision (a). On July 8, 2013, minor admitted the
allegation in the petition and was given deferred entry of judgment.
       On August 26, 2013, another juvenile wardship petition (Petition B) was filed
charging minor with auto theft in violation of Vehicle Code section 10851, subdivision
(a) and receiving a stolen vehicle in violation of section 496d. Minor admitted the
allegation he had committed auto theft in violation of Vehicle Code section 10851, and
the receiving a stolen vehicle allegation was dismissed. The matter was set for a
dispositional hearing.
       On November 13, 2013, a third juvenile wardship petition (Petition C) was filed
charging minor with threatening a public employee in violation of section 71. The
following month, another juvenile wardship petition (Petition D) was filed charging
minor with exhibiting a deadly weapon other than a firearm in violation of section 417,
subdivision (a)(1).
       On February 6, 2014, the juvenile court conducted a contested jurisdictional
hearing on Petitions C and D. Following the hearing, the court dismissed Petition D and
found the allegation in Petition C to be true.
       On March 11, 2014, a dispositional hearing was held. The court found minor to be
a ward of the court and placed him on probation with no maximum amount of time
imposed. Minor was placed 60 days on the electronic monitoring program and returned
to the family home.
       The juvenile court also imposed $450 in attorney fees. Whether these fees were
imposed on minor’s family or on minor himself is unclear. When asked to consider the
family’s financial situation during the hearing, the court responded, “That is not for me to
                                                 2
do. That is for the Department of Revenue. I will set it at four hundred fifty dollars.
They will need to go to the Department of Revenue and be initially evaluated for ability
to pay.” However, the attachment to the dispositional order listing the conditions of
probations contained a condition that stated: “The minor and his parents are jointly and
severally responsible for the payment of fines, penalty assessments, and/or restitution, as
ordered by the Court.”2
       Factual Background
       The incident forming the basis of Petition C occurred on September 26, 2013.
That day, minor was attending algebra I class at his high school. The class was for
special education students, and minor was a special education student with attention
deficit problems.
       At the start of the class, minor’s teacher noticed that minor was wearing red
clothing, which was contrary to school policy. Minor’s teacher informed him of his
violation, and minor did not react.
       Approximately 15 minutes before class ended, minor began moving around the
classroom, talking to other students. Minor also began to sit down in front of the
classroom. Other students were talking at the time, but minor’s teacher felt that he was
being disruptive. She asked him to return to his assigned seat. Minor complied, and
when he returned to his seat he stated: “I’m going to mess you up and this is not a threat,
it’s a promise.” Minor’s teacher testified she was only 10 to 20 feet away from minor
when he uttered this statement.
       Minor’s teacher became afraid that minor would act on his statement, so she e-
mailed the school advisors and asked them to come to her classroom. The advisors came
and escorted minor to the school office. Minor appeared visibly angry when he was

       2
       The court stated during the hearing that it was adopting the probation
department’s recommendations in their entirety as modified.

                                             3
removed, but otherwise went with the advisors willingly. Minor’s teacher said she came
to work the next day only because she knew minor was suspended. Minor’s teacher
contacted her union representative and obtained a restraining order against minor. Minor
was later transferred to another school.
                                         DISCUSSION
       On appeal, minor raises two main arguments: (1) the evidence was insufficient to
support the trial court’s true finding that he had violated section 71, and (2) the trial court
erred in ordering him to be jointly and severally liable for attorney fees.
   1. Insufficient Evidence
       Following the contested jurisdictional hearing, the juvenile court found true the
allegation that minor had violated section 71, subdivision (a). Minor contends there was
insufficient evidence that he made a threat to inflict an unlawful injury and that the
alleged threat was intended to influence the teacher’s duties.
       Overview and Standard of Review3
       The statutory elements of a violation of section 71 are: “ ‘ “(1) A threat to inflict
an unlawful injury upon any person or property; (2) direct communication of the threat to
a public officer or employee; (3) the intent to influence the performance of the officer or
employee’s official duties; and (4) the apparent ability to carry out the threat.” ’ ”
(Ernesto H., supra, 125 Cal.App.4th at p. 308; see also People v. Hopkins (1983) 149
Cal.App.3d 36, 40-41.) Minor contends insufficient evidence supports two elements of a


       3
          The Supreme Court has held that “when a defendant raises a plausible First
Amendment defense” the “reviewing court should make an independent examination of
the record . . . to ensure that a speaker’s free speech rights have not been infringed by a
trier of fact’s determination that the communication at issue constitutes a criminal threat.”
(In re George T. (2004) 33 Cal.4th 620, 632.) This standard of review has been applied
to cases discussing section 71. (In re Ernesto H. (2004) 125 Cal.App.4th 298 (Ernesto
H.).) However, here minor does not raise a First Amendment defense in challenging the
juvenile court’s finding under section 71.

                                               4
section 71 violation: that he threatened to inflict an unlawful injury on the teacher, and
that he intended to influence the performance of the teacher’s official duties.
       The applicable standard of review to determine whether sufficient evidence
supports the juvenile court’s findings is well settled. We are bound by the same
principles as those governing the review of criminal convictions. (In re Roderick P.
(1972) 7 Cal.3d 801, 809.) Those principles include the following: “In reviewing a
challenge to the sufficiency of the evidence, we do not determine the facts ourselves.
Rather, we ‘examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence--evidence that is reasonable, credible
and of solid value--such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. [Citation.]
[¶] The same standard of review applies to cases in which the prosecution relies primarily
on circumstantial evidence.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129; see also
People v. Meza (1995) 38 Cal.App.4th 1741, 1745.)
       Threat to Inflict Unlawful Injury
       In his opening brief, minor argues that “given the totality of the circumstances,
there is insufficient evidence to show that T.G.’s remark was a threat to inflict an
unlawful injury upon any person or property.” Therefore, we construe his argument to be
that under the circumstances, his statements cannot be characterized as a threat.
       Minor presents a different argument in his reply brief. Instead of claiming that his
statements did not constitute a threat, he argues there was insufficient evidence that he
intended his statements to be a threat.4 This recharacterization of his argument from his

       4
        In his opening brief, minor argues the following: “For all the foregoing [sic],
given the totality of the circumstance, there is insufficient evidence to show that
[minor’s] remark was a threat to inflict an unlawful injury upon any person or property.
The remark itself is ambiguous and given the absence of any evidence in the
(continued)
                                              5
opening brief is not a fair response to the People’s rebuttal. It raises an entirely new
claim not presented in his opening brief. Typically, “[p]oints raised in the reply brief for
the first time will not be considered, unless good reason is shown for failure to present
them before. To withhold a point until the closing brief deprives the respondent of the
opportunity to answer it or requires the effort and delay of an additional brief by
permission.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)
       Minor does not state any reason for failing to raise this point in his opening brief.
Instead, he maintains the arguments are the same. However, we fail to see how a claim
of insufficient evidence that a statement constitutes a threat to inflict unlawful injury is
the same as a claim of insufficient evidence of the minor’s specific intent that his
statement be taken as a threat.5 Therefore, we disregard minor’s argument on this point
and proceed to examine the merits of his argument that his statement did not constitute a
threat under section 71.
       “To determine whether the minor’s statement to [the teacher] may be construed as
a threat to inflict an unlawful injury upon person or property, we must examine not only


circumstances surrounding its communication which could add meaning and context to
the words, this was nothing more than an angry outburst by a minor child after being told
to return to his seat and the juvenile court’s true finding cannot stand.” (Italics added.)
In his reply brief, minor transforms this initial argument, claiming that there is
“insufficient evidentiary support in the record that [minor] had the intent that his angry
outburst was meant to be taken as a threat . . . .” (Italics added.)
        5
          In part, it appears minor confuses the issue. Minor seems to believe that because
section 71 prohibits threats, inherent in the statute is an additional requirement that the
defendant must possess the specific intent that his or her words be taken as a threat by the
victim. This claim is unsupported. Other criminal statutes criminalizing threats, such as
section 422, require this specific mental state. Section 422, subdivision (a) provides that
an individual must have “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 . . . .”
However, section 71 requires a different mental state. Under section 71, the specific
intent required is the intent to influence the performance of the public officer’s duties. (§
71, subd. (a); Ernesto H., supra, 125 Cal.App.4th at p. 308.)

                                              6
the words spoken but also the circumstances surrounding the communication.
[Citations.] In doing so, we will keep in mind that . . . section 71 is designed to prohibit
plausible or serious threats and ‘to ignore pranks, misunderstandings, and
impossibilities.’ [Citation.] . . . [T]he threatened injury [must] be of a nature that would
be taken seriously and could cause the recipient to act or refrain from acting to avoid the
threatened harm.” (Ernesto H., supra, 125 Cal.App.4th at pp. 310-311.)
       Minor relies on two cases, In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.)
and In re Ryan D. (2002) 100 Cal.App.4th 854 (Ryan D.), to support his argument that
his statement was not a threat. In Ricky T., a student was accidentally hit when a teacher
abruptly opened a door. (Ricky T., supra, at p. 1137.) The student told the teacher he
would “get” him and that he was going to “ ‘kick [his] ass.’ ” (Ibid.) The juvenile court
sustained the allegation that the minor had violated section 422 by making a criminal
threat, but did not sustain an allegation that he had violated section 71. (Ricky T., supra,
at p. 1138.) The appellate court reversed, finding there was insufficient evidence that the
minor’s statements constituted a true threat within the meaning of section 422. (Ricky T.,
supra, at p. 1139.)
       In coming to this conclusion, the Ricky T. court noted that under section 422, a
threat must be “ ‘so unequivocal, unconditional, immediate, and specific [that it] convey .
. . a gravity of purpose and an immediate prospect of execution of the threat . . . .’ ”
(Ricky T., supra, 87 Cal.App.4th at p. 1137.) The appellate court noted that in this
particular case, the police were not called until the following day, the teacher did not
have a history of disagreements with the student, and there was no other evidence that a
physical confrontation was actually imminent. (Id. at p. 1138.) The appellate court
further noted that in acquitting minor of the section 71 charge, the juvenile court had not
found any evidence proving that minor had entertained the specific intent to interfere
with the teacher’s official duties, or that the minor’s outburst had the required effect of


                                              7
creating a reasonable belief that his threat could be carried out. (Ricky T., supra, at p.
1139.)
         Like Ricky T., Ryan D. involved the juvenile court’s sustaining of a section 422
allegation. (Ryan D., supra, 100 Cal.App.4th at p. 857.) In Ryan D., the appellate court
reversed the juvenile court’s jurisdictional finding due to insufficient evidence. The
student in Ryan D. had submitted a painting in his art class where he had depicted himself
shooting a female peace officer who had previously cited him for possessing marijuana.
(Id. at pp. 858-859.) The appellate court concluded that the evidence failed to establish
that the student had intended to convey a threat to the peace officer, because there was no
evidence that at the time he acted, the minor had intended the painting be shown to the
peace officer. (Id. at p. 864.) Furthermore, the painting “did not convey a gravity of
purpose and immediate prospect of the execution of a crime that would result in death or
great bodily injury to” the officer. (Id. at p. 862.)
         We find minor’s reliance on Ricky T. and Ryan D. misplaced. These cases
discussed whether the threat element of a section 422 violation was established. They did
not discuss whether evidence was sufficient to support a juvenile court’s finding that a
statement constituted a threat for the purposes of section 71.6 Sections 422 and 71 both
criminalize threats, but the elements of the offenses are not the same. “ ‘It is axiomatic
that cases are not authority for propositions not considered.’ ” (People v. Avila (2006) 38
Cal.4th 491, 566.)
         Instead, we find Ernesto H., supra, 125 Cal.App.4th 298 applicable. In Ernesto
H., a teacher broke up a fight between two students. Later, the teacher noticed the two
students were attempting to fight again with the minor acting as a lookout. The teacher


         6
        Section 422 “requires that the threat both carry an ‘immediate prospect of
execution’ and cause ‘sustained fear,’ elements not present in Penal Code section 71 . . .
.” (Ernesto H., supra, 125 Cal.App.4th at p. 312.)

                                               8
approached the students and yelled at them to stop fighting. Minor said “ ‘ “Don’t yell at
me.” ’ ” (Id. at p. 303.) Later, he said “ ‘ “Yell at me again and see what happens.” ’ ”
(Ibid.) When the minor made this statement, the teacher recalled that his head was tilted
back, he took a step toward the teacher, and his hands were clenched at his sides. (Id. at
p. 304.) The teacher asked the minor if he was threatening him, and the minor did not
respond. The teacher felt threatened and believed the minor would retaliate in the future.
(Ibid.)
          A juvenile wardship petition was filed against the minor, alleging the minor had
violated sections 71 and 422. (Ernesto H., supra, 125 Cal.App.4th at p. 304.) The
juvenile court found true the allegation that minor had violated section 71, and the minor
appealed. The appellate court determined that the minor’s statements constituted a threat
to inflict an unlawful injury upon a person or property. (Ernesto H., supra, at p. 313.)
Standing alone, the minor’s statement was ambiguous. However, when put in context,
the statement constituted a threat. The minor was upset and angry when he spoke the
words. When he made the statement, he stepped toward the teacher, tilted his head back,
and the teacher recalled he clenched his fists. Furthermore, the teacher told the police
officer he feared for his safety and believed the minor would retaliate against him in the
future. (Id. at p. 311.) The court concluded “the threat element of Penal Code section 71
was satisfied when [the teacher] testified that he felt afraid and that he feared the minor
might retaliate in the future.” (Id. at p. 313.)
          Like in Ernesto H., the teacher here testified that she was afraid that minor would
harm her. She stated she felt violated. Part of her fear was based on her knowledge of
minor’s behavior in the classroom. Furthermore, the teacher asserted she only came to
school the next day because she knew minor was suspended. Following the incident, she
blacked out her windows and locked her classroom door until she was told that minor had
been transferred to a different school. She sent an e-mail to the school’s advisors


                                                9
immediately after minor made the remarks, who removed him from the classroom that
day.
       In sum, after considering the circumstances surrounding the event, we conclude
sufficient evidence supports the juvenile court’s finding that the statement constituted a
threat to inflict unlawful injury pursuant to section 71.
       Intent to Influence Performance of the Teacher’s Duties
       Next, minor argues there is insufficient evidence that he intended to influence the
performance of the teacher’s official duties.
       As articulated in Ernesto H., “[i]ntent is rarely susceptible of direct proof.
Therefore, in determining whether the element of intent has been established, we consider
whether it may be inferred from all the facts and circumstances disclosed by the
evidence.” (Ernesto H., supra, 125 Cal.App.4th at p. 313.)
       In Ernesto H., the court concluded sufficient evidence supported the juvenile
court’s finding that the minor had intended to influence the performance of the teacher’s
duties. (Ernesto H., supra, 125 Cal.App.4th at p. 314.) Specifically, the court noted that
“[w]hen the minor told [the teacher] that something could happen to him unless he
stopped yelling, the minor was clearly interfering with [the teacher’s] attempt to restore
order to the physical education class.” (Ibid.)
       As in Ernesto H., here the intent to influence the performance of the teacher’s
duties can be inferred from the circumstances surrounding the incident. During class,
minor was not in his seat and was walking around the classroom. The teacher told him to
sit down at his assigned seat, because she thought he was being disruptive. Although
minor physically complied, he made threatening remarks immediately following the
teacher’s discipline. Disciplining students and maintaining order in a classroom are
duties of a high school teacher. From the circumstances, minor’s statement can be seen
as an effort to prevent the teacher from performing these duties, because the teacher
sought to maintain order in the classroom when the threat was made.
                                                10
       Accordingly, sufficient evidence supports the finding that minor acted with the
specific intent to influence the performance of the teacher’s duties. We therefore find no
error with the juvenile court’s true finding that minor violated section 71, subdivision (a).
   2. Attorney Fees
       Next, minor argues the trial court erred when it ordered him to be jointly and
severally liable for the payment of $450 of attorney fees as a condition of his probation.
       Preliminarily, we note that the record is unclear on whether the court actually
ordered minor to be jointly and severally liable for these fees. During the hearing, the
court orally imposed $450 in attorney fees. When asked to consider the family’s
financial situation, the court responded that “[t]hat is not for me to do. That is for the
Department of Revenue. I will set it at four hundred fifty dollars. They will need to go
to the Department of Revenue and be initially evaluated for ability to pay.” It seems the
“they” referred to by the trial court was the minor’s family, not minor himself. However,
the attachment to the dispositional order listing the conditions of probations contained a
condition that stated: “The minor and his parents are jointly and severally responsible for
the payment of fines, penalty assessments, and/or restitution, as ordered by the Court.”
The juvenile court indicated during the hearing that it was imposing all the
recommendations in the probation report.
       The People agree that to the extent the court’s order is ambiguous, it cannot be
construed to require minor to be liable to pay the attorney fees. Welfare and Institutions
Code section 903.1, subdivision (a) provides in pertinent part: “The father, mother,
spouse, or other person liable for the support of a minor, the estate of that person, and the
estate of the minor, shall be liable for the cost to the county or the court, whichever entity
incurred the expenses, of legal services rendered to the minor by an attorney pursuant to
an order of the juvenile court.” Welfare and Institutions Code section 903.1 “does not
authorize juvenile courts to impose attorney fees on a minor if the minor is under 18


                                              11
years of age when counsel is appointed.” (In re Gary F. (2014) 226 Cal.App.4th 1076,
1083 (Gary F.).)
       Minor did not object below to the imposition of the fees. However, the juvenile
court lacks jurisdiction to impose attorney fees on a minor in this situation, so the
sentence is unauthorized and minor has not forfeited his claim on appeal for failure to
object. (People v. Scott (1994) 9 Cal.4th 331, 354; Gary F., supra, 226 Cal.App.4th at p.
1083, fn. 5.)
       Accordingly, to provide clarity we will modify the order to state that minor is not
liable for the attorney fees ordered by the juvenile court.7
                                        DISPOSITION
       The order is modified to include the following: “The minor is not liable for the
amount of $450 in attorney fees assessed by the juvenile court.” As modified, the order
is affirmed.




       7
         As a result, we need not reach minor’s other arguments pertaining to this claim.
Furthermore, we reject minor’s argument that the fees should be vacated. From the
court’s oral statements during the hearing, it appears it intended to impose the attorney
fees on minor’s parents. Since we clarify that minor is not jointly or severally liable for
the attorney fees, the fees would be authorized under the law and there would be no
further error with the trial court’s order.

                                             12
                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Márquez, J.
