Filed 7/9/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


In re A.C., a Person Coming           2d Crim. No. B292149
Under the Juvenile Court Law.        (Super. Ct. No. PJ52736)
                                       (Los Angeles County)

THE PEOPLE,

     Plaintiff and Respondent,

v.

A.C.,

     Defendant and Appellant.


       A.C., a ward of the juvenile court, made statements to an
in-home counselor who interpreted them as threats. The juvenile
court sustained a Welfare and Institutions Code section 602
petition and found that A.C. violated his conditions of probation
by making criminal threats. (Pen. Code, § 422, subd. (a).)1 A.C.
appeals.



      All statutory references are to the Penal Code unless
        1

otherwise stated.
       We conclude that statements A.C. made to a counselor are
admissible because they do not fall within the psychotherapist-
patient privilege. (Evid. Code, § 1014.) We also conclude A.C.’s
statements do not violate his conditions of probation. We reverse.
                               FACTS
       After sustaining a Welfare and Institutions Code section
602 petition, the juvenile court placed A.C. home on probation.
Probation condition 6 provided, “You must not unlawfully
threaten, hit, fight with, or use physical force on any person.”
Probation condition 14 provided, “You must not have, possess or
act like you possess an object you know is a dangerous or deadly
weapon. You must not knowingly have or possess a replica gun.”
       A few months later, the People filed a notice of violation of
probation, alleging, among other things, that A.C.: 1) “threatened
his peers at school,” 2) may be in danger of hurting himself, 3) is
not on medication, and 4) has not seen a psychiatrist. The People
requested A.C. be detained pending a hearing on the violation of
his probation conditions.
       At the hearing, Ana Burgos, a “child and family counselor”
with “Family Preservation,” testified she was the “in-home
counselor assigned to [A.C.’s] family.” She did not provide “one-
on-one therapy sessions.” She only assessed the needs of the
family and “provid[ed] linkages” so the family and A.C. could
receive mental health services.
       A.C.’s counsel objected, claiming Burgos’s testimony was
inadmissible because it would reveal A.C.’s statements that are
protected by the psychotherapist-patient privilege. The juvenile
court ruled the objection was premature. It said, “[Y]ou’re
required to assert the privilege every time you feel the privilege




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has been violated. [Y]ou need to do it at the specific point when
the privilege needs to be invoked.”
       Burgos testified that prior to sessions with minors she
advises them that their statements “will be private except if [she]
hear[s] that the life of a child or anybody else is in danger.” The
prosecutor asked whether any of A.C.’s statements fell within
this exception. A.C.’s counsel objected on the grounds of
privilege. The juvenile court overruled the objection.
       Burgos testified that A.C. told her that he did not want to
go to school. Some students “were bullying him.” A.C. said if he
went to school, “and the kids teased him, he was going to react”;
he was going to “basically stab them with whatever he had
available”; and he “was serious about it.” He referred to two
students, but he did not give Burgos their names. His mother
was present when he made the statements. Burgos contacted her
supervisor to report A.C.’s statements. A psychiatric emergency
team was dispatched and came to the residence. A.C. was
interviewed and was eventually admitted to a hospital.
       The juvenile court found A.C. violated probation conditions
6 and 14. It said Burgos’s actions in reporting A.C.’s statements
“were completely appropriate.”
                            DISCUSSION
     The Admissibility of the Statements A.C. Made to Burgos
       A.C. timely objected to Burgos’s testimony. He contends
the statements made to her were confidential and inadmissible
under the psychotherapist-patient privilege. (Evid. Code,
§ 1014.) The juvenile court did not err in admitting Burgos’s
testimony about A.C.’s statements.
       “In California, as in all other states, statements made by a
patient to a psychotherapist during therapy are generally treated




                                 3
as confidential and enjoy the protection of a psychotherapist-
patient privilege.” (People v. Gonzales (2013) 56 Cal.4th 353, 371,
italics added.) But “when a therapist who is providing treatment
to a patient concludes that the patient is a danger to himself or
herself or to others and that disclosure of the contents of a
therapy session is necessary to prevent the threatened danger,
the therapist is free to testify about those statements . . . .” (Id.
at p. 380, italics added.)
       “Where the psychotherapist-patient privilege is claimed as
a bar to disclosure, the claimant has the initial burden of proving
the preliminary facts to show the privilege applies.” (Story v.
Superior Court (2003) 109 Cal.App.4th 1007, 1014.)
“ ‘Preliminary facts’ means the existence of a psychotherapist-
patient relationship” and, once established, is proof that the
claimant was a patient who consulted a psychotherapist. (Ibid.)
A patient is one who consults a psychotherapist for diagnosis or
treatment. (Evid. Code, § 1011.)
       The juvenile court found Burgos’s statements were
admissible because Burgos “was not acting as a therapist.” The
record supports this finding.
       Burgos testified she was not A.C.’s therapist. Her meeting
with A.C. was not a psychological therapy session. It was not
“part of [her] duty” to “help him with coping strategies with the
bullying that he felt he was getting at school.” She “was not
providing one-on-one therapy sessions.” (Italics added.) She did
not work for the Department of Mental Health. She was there to
assist the family in obtaining “linkages” to mental health services
that the family and A.C. could utilize. Burgos was assessing “the
needs of the family.”




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      But even if A.C.’s statements were made to a therapist,
they would still be admissible. A therapist has a duty to provide
a warning to others when he or she reasonably believes a patient
“is dangerous to another person.” (People v. Felix (2001) 92
Cal.App.4th 905, 911.) Burgos testified she disclosed A.C.’s
statements because she felt they were a “threat towards some
individuals.”
      A.C. contends admitting his statements violated his
constitutional right to privacy. But Burgos said she provided a
warning about the limits on confidentiality. Even if Burgos were
a therapist, the right to privacy is not a bar to admissibility of
statements where the therapist has warned the patient and
reasonably believes the patient has made a threat. (People v.
Wharton (1991) 53 Cal.3d 522, 563; People v. Gomez (1982) 134
Cal.App.3d 874, 881-882.)
      Burgos acted reasonably in disclosing A.C.’s statements.
But that, by itself, does not show A.C. violated his probation
conditions. (People v. Felix, supra, 92 Cal.App.4th at p. 908.)
                      Sufficiency of the Evidence
      We, A.C., and the People agree there is insufficient
evidence to support the findings that A.C. violated his probation
conditions.
      A court may revoke probation if it “has reason to believe
that the [probationer] has violated any of the conditions of . . .
probation.” (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) The
juvenile court found A.C. violated probation condition 6 that
requires that he “must not unlawfully threaten” any person.
      But to support the finding that A.C. made an unlawful
threat, the People must prove: 1) he made the statements “with
the specific intent [that they] be taken as a threat” (People v.




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Felix, supra, 92 Cal.App.4th at p. 911); 2) he communicated the
statements directly or by a third party to the victims; and 3) the
statements caused the victims to be in a state of “sustained fear.”
(Id. at p. 912; § 422.)
         In Felix, the defendant made statements in a therapy
session that a psychotherapist believed to be threats. We held
the defendant did not violate the criminal threat statute (§ 422)
“even though the third party psychotherapist has a duty to warn
the intended victim.” (People v. Felix, supra, 92 Cal.App.4th at
p. 908.) We said, “It must be shown that the patient intended the
threatening remarks to be communicated to the victim.” (Ibid.)
“ ‘[I]f the threatener intended the threat to be taken seriously by
the victim, he must necessarily have intended it to be conveyed.’ ”
(Id. at p. 913.)
         Here A.C. could not intend Burgos to communicate his
statements in the counselling meeting to the two students
because he did not tell her their names. Neither A.C. nor Burgos
told those students what A.C. said. There was no evidence to
show the two students were in a state of sustained fear because
they did not know about A.C.’s remarks. “The crime requires ‘a
threat so “unequivocal, unconditional, immediate, and specific”
that it conveys to the victim an “immediate prospect of
execution.” ’ ” (People v. Felix, supra, 92 Cal.App.4th at p. 911.)
         Moreover, “ ‘[w]hen determining whether an alleged threat
falls outside the realm of protected speech, it is important to
focus on the context of the expression.’ ” (People v. Felix, supra,
92 Cal.App.4th at p. 913.) “ ‘[M]ere angry utterances or ranting
soliloquies, however violent,’ ” do not, by themselves, constitute
criminal threats. (Id. at p. 914.) A.C. did not make the
statements to any students; he made them to Burgos. Burgos’s




                                 6
testimony shows that A.C. said he did not want to go to school.
A.C.’s statements were made to convince Burgos that he should
be excused from attending school. He succeeded; he did not
return to school. His statements show he may need counselling,
but they do not support the finding that he violated probation
condition 6 that he not threaten any person.
        A.C. expressed his feelings and frustration in a private
setting about being bullied. “ ‘One may, in private, curse one’s
enemies, pummel pillows, and shout revenge for real or imagined
wrongs’ ” and be immune from criminal liability. (People v. Felix,
supra, 92 Cal.App.4th at p. 913.) Burgos’s and her supervisor’s
response to the statements show they believed a psychiatric
intervention, rather than a police response, was appropriate. A
psychiatric response team came and interviewed A.C. There is
no evidence that Burgos ever contacted the school with a warning
as would normally be expected in the case of a typical criminal
threat. The evidence is insufficient to support a violation of
probation condition 6.
        The juvenile court also found A.C. violated probation
condition 14. It provides, “You must not have, possess or act like
you possess an object you know is a dangerous or deadly weapon.
You must not knowingly have or possess a replica gun.” The
court said, “In order to stab somebody, [A.C.] would have to have
an object he knows is a dangerous or deadly weapon.”
        A.C. told Burgos that if he were bullied, “he was going to
. . . stab them with whatever he had available.” Probation
condition 14 prohibits the use or possession of a weapon. But
A.C. did not use a knife, he did not say he had “a dangerous or
deadly weapon,” and there is no evidence that he possessed one.
(People v. Kim (2011) 193 Cal.App.4th 836, 846-847 [violation of




                                7
probation conditions prohibiting possession of items requires the
People to prove actual possession of the prohibited item and the
defendant’s knowledge of that possession].) In addition, A.C. did
not perform an “act” that simulated his possession of a weapon.
The juvenile court found that A.C.’s statement about stabbing
someone shows he “would have to have [a weapon].” But this is
based on speculation, not evidence of possession. (People v.
Wright (2016) 4 Cal.App.5th 537, 545 [substantial evidence to
support a finding may not be based on speculation].) The parties
agree that A.C.’s use of language was not sufficient to show a
violation of this probation condition. The People note that, at
most, A.C.’s statements “indicated a possible future event,” not a
present possession or actual use of a weapon.
       The evidence is insufficient to support the findings that
A.C. violated his probation conditions.
                           DISPOSITION
       The orders finding A.C. violated probation conditions 6 and
14 are reversed.
       CERTIFIED FOR PUBLICATION.




                                    GILBERT, P. J.
We concur:



             YEGAN, J.



             TANGEMAN, J.




                                8
                     Fred J. Fujioka, Judge

             Superior Court County of Los Angeles

                ______________________________



      Gerald Peters, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Zee Rodriguez, Paul S. Thies, Deputy
Attorneys General, for Plaintiff and Respondent.




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