Filed 2/27/14 In re J.B. CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re J.B., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
                                                                         E058750
         Plaintiff and Respondent,
                                                                         (Super.Ct.No. INJ1100289)
v.
                                                                         OPINION
J.B.,

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Lawrence P. Best,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part; reversed in

part.

         David R. Greifinger, under appointment by the Court of Appeal, for Defendant

and Appellant.




                                                             1
       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy

Tyler, Deputy Attorneys General, for Plaintiff and Respondent.

                                     INTRODUCTION

       The juvenile court found that J.B. (minor), who had already been declared a ward

of the court, made a criminal threat against his physical education (P.E.) teacher. (Pen.

Code,1 § 422, subd. (a).) The court ordered that minor continue a ward of the court in the

custody of his mother, under conditions of probation. Minor timely appealed, contending

the record does not contain substantial evidence that his P.E. teacher suffered sustained

fear from his threat, and that his adjudication for violating section 422 cannot stand. We

agree, and reverse the judgment in that respect.

                                           FACTS

       In a subsequent petition2 filed on February 21, 2013, the People alleged in

paragraphs 1 and 2 that minor made criminal threats in violation of section 422, against

victim’s JOHN DOE #1 and JOHN DOE #2.




       1   All further undesignated statutory references are to the Penal Code.

       2  Minor does not challenge his initial adjudication as made under the original
petition filed on May 9, 2011, the allegations of which he admitted, or appeal from his
admissions to numerous other subsequent petitions.



                                              2
       The victim, a P.E. teacher, testified that on February 20, 2013, at approximately

10:30 a.m., he was teaching his mid-morning P.E. class. Minor, who was a student in the

teacher’s early morning class, walked onto the outdoor P.E. area where the teacher was

conducting his class. The teacher told minor that he was not a student in that particular

class, and that he had to leave. Minor ignored the teacher and walked over to some

friends and began talking to them. The teacher told minor to leave two more times, but

minor continued to ignore him. The teacher then radioed the school’s security office.

       A security officer was patrolling the campus and responded to the P.E. class.

When he observed that minor was not complying with the teacher’s directives to leave

the class, the security officer told minor to leave. Minor refused at first, so the teacher

radioed the school principal. Minor then said goodbye to his friends and began to leave

the class. The teacher walked next to minor to escort him from the P.E. area.

       As they walked, the teacher asked minor why he kept coming to his class, and

minor responded by saying “something to the effect of ‘Get gone, [n…word],’” or “‘get

gone,’ or ‘get home,’ or ‘go home,’ something like that, ‘[n…word].’” When the teacher

asked minor what he had said, minor became more agitated, and responded, “I said, ‘Get

on home, [n…word].’” The teacher told minor that he could not talk to him like that, and

that he could not come back to the class. Minor then stopped walking, turned to look the

teacher in the eye, and in a serious tone of voice said, “Don’t try to get crazy with me.

I’ll come back up here and smoke you.” Minor stood in a firm stance as he spoke to the




                                              3
teacher and did not appear to be joking. The teacher asked minor, “Did you just threaten

to shoot me?” Minor responded, “Yeah, you heard me.”3 The teacher told minor that he

could not talk to him like that, and that he took threats seriously. In response, minor told

the teacher, “Take it as a threat. I’m serious.” The security officer escorted minor away,

and the teacher began documenting the event.

       The teacher testified that he took minor’s threat seriously, and he was concerned

because that was not his “first run-in” with minor. When asked if at the time he was

afraid that minor might follow through on his threat, the teacher testified, “I was

concerned. I took it serious[ly]. I was concerned that it [was] a possibility he could carry

that out.”

       The juvenile court found the People proved beyond a reasonable doubt that minor

threatened the teacher in violation of section 422, as alleged in paragraph 1 of the

subsequent petition.4




       3 The security officer testified that when the teacher asked minor to repeat his
threat, minor “said something to the effect that he was going to smoke some weed or
something like that,” which the officer interpreted as an attempt to retract the threat to
“smoke” the teacher.

       4 Based on additional facts that we need not recite, the juvenile court also found
that minor threatened the security officer as alleged in paragraph 2, but minor does not
challenge that adjudication on appeal.



                                              4
                                       DISCUSSION

       “In determining the sufficiency of the evidence, we review the whole record in the

light most favorable to the judgment for substantial evidence—that is, evidence which is

reasonable, credible, and of solid value—such that any rational trier of fact could find the

allegation true beyond a reasonable doubt. [Citation.] ‘[We] presume[ ] in support of the

judgment the existence of every fact the trier could reasonably deduce from the evidence.

[Citations.] The same standard applies when the conviction rests primarily on

circumstantial evidence. [Citation.]’ [Citation.] If the circumstances reasonably justify

the fact finder’s findings, a contrary finding reasonably reconciled with the circumstances

does not warrant reversal of the judgment. [Citations.]” (In re L.K. (2011) 199

Cal.App.4th 1438, 1446.)

       Section 422 has five elements (People v. Toledo (2001) 26 Cal.4th 221, 227-228),

but in this appeal minor only challenges the fourth element—that the threat caused the

victim “to be in sustained fear for his or her own safety or for his or her immediate

family’s safety.” (§ 422, subd. (a).) “‘Sustained fear’ refers to a state of mind. As one

court put it, ‘[d]efining the word “sustained” [in section 422] by its opposites, we find

that it means a period of time that extends beyond what is momentary, fleeting, or

transitory.’ (People v. Allen (1995) 33 Cal.App.4th 1149, 1151 (Allen).) The word fear,

of course, describes the emotion the victim experiences.” (People v. Fierro (2010) 180

Cal.App.4th 1342, 1349.) “‘While the statute does not require that the violator intend to

cause death or serious bodily injury to the victim, not all serious injuries are suffered to

the body. The knowing infliction of mental terror is equally deserving of moral

                                              5
condemnation.’” (People v. Wilson (2010) 186 Cal.App.4th 789, 806, quoting People v.

Thornton (1992) 3 Cal.App.4th 419, 424 [Fourth Dist., Div. Two].)

       Minor does not dispute that his words to the teacher constituted an actual threat for

purposes of section 422, and the evidence supports such a conclusion. But as minor

points out in his opening brief, the teacher never testified that minor’s threat caused him

to be afraid, scared, or to fear for his personal safety. Instead, he testified that he was

“concerned” that minor might possibly follow through on his threat. To be concerned

means to be troubled, disturbed, anxious, or bothered. (Webster’s 3d New Internat. Dict.

(1993) p. 470, col. 1.) In contrast, fear is “characterized by anticipation of pain or great

distress and accompanied by heightened autonomic activity, [especially] involving the

nervous system: agitated foreboding often of some real or specific peril . . . .” (Id. at

p. 831, col. 1.) Fear is synonymous with dread, fright, panic, horror, and terror. (Ibid.)

The teacher may have been worried or apprehensive about minor following through on

his threats, but the People did not introduce evidence that he suffered fear or mental

terror, sustained or otherwise.

       The People respond that a victim need not testify that he or she suffered fear as a

result of a criminal threat. The decision in People v. Ortiz (2002) 101 Cal.App.4th 410,

does not support the People’s assertion. There, the victim testified to being fearful when

he was carjacked by the defendant. (Id. at p. 413.) The Court of Appeal concluded that,

although the victim did not testify he was placed in actual fear from a subsequent threat,

the only reasonable inference was that the victim was in a state of sustained fear

throughout “an uninterrupted series of crimes,” and there was no evidence that the

                                               6
victim’s fear subsided. (Id. at pp. 416-417.) Here, there is no evidence that the teacher

was placed in fear for his safety by some other act by minor, and that he continued to

suffer that fear when defendant made his threat.

       The People also rely on People v. Solis (2001) 90 Cal.App.4th 1002 (Solis) and

People v. Martinez (1997) 53 Cal.App.4th 1212 (Martinez), for the proposition that the

surrounding circumstances are relevant to determining whether the victim suffered

sustained fear. Those cases address the relevance of surrounding circumstances for

determining whether a threat is sufficiently definite for purposes of section 422 and not in

the context of whether the victim suffered sustained fear. (Solis, at pp. 1013-1014;

Martinez, at p. 1220.)

       Section 422 mandates that the victim’s sustained fear be both subjectively and

objectively reasonable (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140), so the

surrounding circumstances are certainly relevant to the objective analysis. However,

because defendant only challenges the evidence of the teacher’s subjective fear, the

surrounding circumstances are somewhat less probative than the teacher’s testimony

about his reaction to the threat. In any event, the surrounding circumstances here support

minor’s assertion that the teacher did not subjectively experience sustained fear. The

teacher testified that he was concerned and that he documented the threat, but he did not

recoil from minor or otherwise act in a manner indicative of sustained fear. To the

contrary, when minor told the teacher to “get on” or “get gone,” the teacher drew nearer

to minor to make sure he heard minor correctly—there is no evidence the teacher moved

away from minor when he threatened to “smoke” the teacher.

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       Finally, the People argue that the teacher’s testimony about a prior “run-in” with

minor is evidence that the teacher was placed in sustained fear from the threat. True,

“[t]he victim’s knowledge of defendant’s prior conduct is relevant in establishing that the

victim was in a state of sustained fear.” (Allen, supra, 33 Cal.App.4th at p. 1156, citing

People v. Garrett (1994) 30 Cal.App.4th 962, 967.) But the teacher was not asked about

the prior incident and did not elaborate on it. At most, the teacher’s testimony about the

prior incident supported his testimony that he was concerned about minor’s threat, but it

does not demonstrate that he suffered sustained fear from the threat.

                                      DISPOSITION

       The judgment is reversed with respect to minor’s adjudication for making a

criminal threat as alleged in paragraph 1 of the subsequent petition filed on February 21,

2013. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               McKINSTER
                                                                                             J.

We concur:



HOLLENHORST
          Acting P. J.



CODRINGTON
                          J.




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