Filed 1/30/15 In re Alex Y. CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                   IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


In re ALEX Y., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
          Plaintiff and Respondent,
v.                                                                   A141551
ALEX Y.,
                                                                     (Napa County
          Defendant and Appellant.                                   Super. Ct. No. JV17581)



          Alex Y. appeals from a dispositional order of the juvenile court sustaining
allegations of attempted criminal threats and making a false report of an emergency.
Alex contends the prosecution failed to prove the attempted criminal threats because
there was insufficient evidence he intended his statements to be received by a particular
person or group, the recipients identified in the complaint as “persons associated with an
elementary school” were too vague and broad, and his statements were insufficiently
specific and immediate to be understood as threats. His contentions are meritless, so we
affirm.
                                                 BACKGROUND
          On October 20, 2013, a report was made to the American Canyon Police
Department that threatening statements were posted on Facebook under Alex’s name.
Napa County Sheriff’s Deputy Kenneth Vandyke responded. The caller, who wished to


                                                             1
remain anonymous, e-mailed the posts to Deputy Vandyke. The first said, “Im going to
shoot up an elementary school and eat the children’s still beating hearts[.]” The second,
posted about seven and a half hours later, said “Im gonna shoot up the elementary school
tomorrow” (Sic.) and “Oh boy I cant wait for the nsa to arrive at my doorstep with a
warrent[.]”(Sic.)
       Deputy Vandyke contacted Alex Y. at his home, told him he was under arrest for
criminal threats, and asked if the Facebook posts were his. Alex admitted they were, but
said he made them “as a joke. He saw another person was recently arrested for the same
thing.” He did not seem surprised that the police came to his home. A search of Alex’s
bedroom produced several Airsoft replica rifles,1 a helmet, and a tactical vest.
       The People filed a juvenile wardship petition alleging two felony counts of attempt
to threaten to commit a crime resulting in death or bodily injury and two misdemeanor
counts of falsely reporting an emergency. The juvenile court sustained all counts
following a contested jurisdictional hearing and denied a defense motion to reduce the
felonies to misdemeanors. Alex was placed on six months’ probation without wardship
and committed to juvenile hall for eight days with credit for eight days served. This
timely appeal followed.
                                           DISCUSSION
       Alex’s challenge to the sufficiency of the evidence is premised on his contentions
that his Facebook posts were insufficiently specific and immediate to constitute a threat,
that there was insufficient evidence to prove he intended his posts to be received and
understood as threats, and that the prosecution failed to identify the group of intended
recipients with sufficient specificity to support a finding that the postings could cause a
reasonable person to be placed in fear. We disagree.




       1
           Airsoft rifles are air guns that fire plastic pellets.
                                                   2
                                       I. Legal Standards
                                 A. Attempted Criminal Threats
       Under Penal Code section 422,2 “Any 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 or
for his or her immediate family’s safety” is guilty of a crime punishable as a
misdemeanor or a felony. (§422, subd.(a).)
            “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.” (People v. Toledo (2001) 26 Cal.4th 221, 227–
228; People v. Chandler (2014) 60 Cal.4th 508, 511.)
       The crime of attempted criminal threat is completed “whenever, acting with the
specific intent to commit the offense of criminal threat, the defendant performs an act that


       2
           Further citations to statutes are to the Penal Code.
                                                 3
goes beyond mere preparation and indicates that he or she is putting a plan into action.
Furthermore, in view of the elements of the offense of criminal threat, a defendant acts
with the specific intent to commit the offense of criminal threat only if he or she
specifically intends to threaten to commit a crime resulting in death or great bodily injury
with the further intent that the threat be taken as a threat, under circumstances sufficient
to convey to the person threatened a gravity of purpose and an immediate prospect of
execution so as to reasonably cause the person to be in sustained fear for his or her own
safety or for his or her family’s safety.” (People v. Toledo, supra, at pp. 230–231.) An
attempted criminal threat is thus completed if a defendant does everything necessary to
perpetrate a criminal threat but the threat is intercepted before it is delivered. (Id. at
p. 231.)
                                       B. Standard of Review
       In reviewing the sufficiency of the evidence in a juvenile criminal case, as with an
adult conviction, “ ‘we must determine “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘ “[O]ur role
on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must
presume in support of the judgment the existence of every fact that the trier of fact could
reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances
reasonably justify the trier of fact's findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant reversal of the judgment. [Citation.]’ ” (In re V.V. (2011) 51 Cal.4th 1020,
1026.)3



       3
        The Attorney General correctly observes that a somewhat more complex standard
of review applies when a defendant in a criminal threats case raises a plausible First
Amendment defense. (See In re George T. (2004) 33 Cal.4th 620, 631–632.) Although
Alex makes no such assertion here, we have independently reviewed the record to the
extent necessary to ascertain that his Facebook posts constitute speech that falls outside
the protection of the First Amendment. (See id. at p. 634 [“independent review permits
                                               4
                                            II. Analysis
       Alex demurred to the attempted threats counts as originally charged and as
proposed in an amended petition because the alleged intended recipient of his posts was
“the elementary school,” and, as Alex observed, “[a]n elementary school is not a human.”
The People, perhaps in an excess of caution, amended the petition to identify as the
alleged recipient “ ‘persons associated with an elementary school,’ ” to clarify that the
victim was not an inanimate collection of classrooms, books and desks, but, rather,
“every person who goes to, works at, or is related to someone who goes to or works at an
elementary school in American Canyon, or anywhere for that matter . . . .” The People
explained, “[t]here is not a single named victim because this threat was not
communicated to one particular person. It was broadcast on the internet where hundreds,
if not thousands, of people may have seen it. Among those people were the minor’s
friends and neighbors in American Canyon, including people who work at or have family
members who work at or attend elementary school in American Canyon. It is all of these
people that are potential victims of the minor’s threats.” The juvenile court granted the
motion to amend and overruled the demurrer.
       Invoking a related theme on appeal, Alex asserts the evidence was insufficient to
sustain the attempted criminal threats allegations because the prosecution failed to
identify either specific persons, a particular elementary school, or persons associated with
a particular elementary school as the intended recipients of his threats to “shoot up an
elementary school and eat the children’s still beating hearts” and “shoot up the
elementary school tomorrow.” We disagree.
       Alex is mistaken on the law when he argues the intended victim of attempted
criminal threat must be a specific, identifiable person or persons. He cites no cases that
so hold, and his citation to cases that involve identified or identifiable recipients are not
authority for his claim that the intended recipients must be identifiable—or at least more
clearly identifiable than “persons associated with an elementary school.” (See, e.g.,

an appellate court to ensure that the Toledo test is satisfied and that the suppression of
speech is constitutionally permissible”.])
                                               5
People v. Toledo, supra, 26 Cal.4th 221 [defendant verbally threatened his wife]; People
v. Chandler, supra, 60 Cal.4th at pp. 511–512 [verbal threat to kill neighbor and former
friend]; In re George T., supra, 33 Cal.4th 620 [student gave two classmates allegedly
threatening poem]; In re Ricky T. (2001) 87 Cal.App.4th 1132 [student verbally
threatened teacher]; People v. Wilson (2010) 186 Cal.App.4th 789 [prisoner threatened
guard].) Judicial opinions are not authority for propositions not considered. (People v.
McGraw-Hill Companies, Inc. (2014) 228 Cal.App.4th 1382, 1390.)
       In any event, the ascertainable identity of the intended recipient or recipients of a
threat is not one of the elements of the attempt offense enumerated in People v. Toledo,
supra, 26 Cal.4th at pp. 227–228. (See In re George T., supra, 33 Cal.4th at p. 634.)
Nor, in this age of instantaneous widespread electronic communication, would it make
sense to conjure a legislative intent to so limit penal liability for attempted criminal
threats. Such a requirement would produce the absurd result that an otherwise plausible
threat targeting a large but poorly defined group, such as a threat to detonate a bomb in a
major California city, could not be prosecuted as an attempted violation of section 422
even if it was intended, and likely, to cause tens of thousands of persons “reasonably to
be in sustained fear for [their] own safety or [their] immediate [families’] safety.” (§ 422,
subd. (a).) “In the end, a court must adopt the construction most consistent with the
apparent legislative intent and most likely to promote rather than defeat the legislative
purpose and to avoid absurd consequences.” (In re J.W. (2002) 29 Cal.4th 200, 213.)
       Alex’s evidentiary argument is equally unconvincing. He maintains the
prosecution failed to show he intended for anyone at any elementary school to receive his
“communications.” But evidence of 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
(2013) 58 Cal.4th 40, 87.) Here, although Alex concedes he posted the statements on
Facebook, he says there was no evidence they were accessible to anyone except his
Facebook “friends” and the prosecutor should have, but did not, prove the number or

                                              6
identity of such “friends” who had access to his posts. Moreover, Alex maintains that
Facebook is a “poor way” of conveying threats because his Facebook settings may not
have included any elementary school children or their parents.
       None of this supports his claim. Whether or not any individuals “associated with
an elementary school” had direct access to Alex’s Facebook posts, his comments about
wanting to see if he would get arrested demonstrate knowledge that his threats were
likely to spread broadly enough, and be taken sufficiently seriously, to involve law
enforcement. Moreover, given the horrific notoriety of school shootings in recent years,
Alex must have anticipated that individuals who saw his threats would alert others,
including people who worked at, had relatives who attended, or attended elementary
schools in the area. Indeed, at least one student (more likely high school than
elementary) who accessed his Facebook page notified his or her parent, who reported it to
the police. “ ‘Where the circumstances reasonably justify the trier of fact’s findings, a
reviewing court’s conclusion the circumstances might also reasonably be reconciled with
a contrary finding does not warrant the judgment’s reversal.’ ” (People v. Manibusan,
supra, 58 Cal.4th at p. 87.) The evidence here reasonably supports the inference that Alex
intended his threats to cause fright among his targeted audience.
       Alex also argues the judgment is unsupported because (1) his threats did not single
out a particular elementary school, and (2) the evidence did not show when he posted
them. True, but immaterial. “ ‘A threat is sufficiently specific where it threatens death or
great bodily injury. A threat is not insufficient simply because it does “not communicate
a time or precise manner of execution, section 422 does not require those details to be
expressed. ” ’ [Citations.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1432.) “ ‘[W]e
understand the word “immediate” to mean that degree of seriousness and imminence
which is understood by the victim to be attached to the future prospect of the threat being
carried out, should the conditions not be met.’ ” (Id., italics omitted; People v. Butler
(2000) 85 Cal.App.4th 745, 752) Moreover, as the People observe, the lack of a
specifically targeted elementary school made the threat more pervasive, not less, because


                                              7
any parent, student, teacher or staff member at any elementary school would reasonably
be put in fear of an attack.
       Lastly, in his reply brief Alex argues his claim that he would “eat the children’s
still beating hearts” is so “hyperbolic and impossible” that no reasonable person would
take it as an actual threat. But the real world teaches that such figurative speech can
betray a malicious intent. The juvenile court quite reasonably found that Alex’s threat to
“shoot up an elementary school” would, if delivered to persons associated with an
elementary schools, convey “a gravity of purpose and an immediate prospect of
execution so as to reasonably cause the person to be in sustained fear for his or her own
safety or for his or her family’s safety.” (People v. Toledo, supra, 26 Cal.4th at pp. 230–
231.) Whether or not the recipient would have believed Alex intended to literally “eat the
children’s still beating hearts” is horrifying, but immaterial.
                                          DISPOSITION
       The judgment is affirmed.




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                                _________________________
                                Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Jenkins, J.




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In re Alex Y., A141551




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