Delinquency Case Law

In re Michael D. (July 16, 2002) 100 Cal.App.4th 115 [121 Cal.Rptr.2d 909]. Court of Appeal, Third District.

The juvenile court sustained a petition alleging that a youth had violated Penal Code section 417.4. The youth pointed an imitation gun at another youth on a school playground. An employee of the school, believing that the youth was pointing an actual gun, alerted the police. The youth and his companions were detained nearby, searched, and released when no gun was found. The police, in a later search, found the imitation gun in the clothing of the boy at whom the youth had been pointing the gun. Penal Code section 417.4 states that "[e]very person who, except in self-defense, draws or exhibits an imitation firearm in a threatening manner against another in such a way as to cause a reasonable person apprehension or fear of bodily harm is guilty of a misdemeanor . . . ." The youth contended on appeal that he did not violate section 417.4 because the youth at whom he pointed the imitation gun did not experience apprehension or fear. It was a bystander who experienced apprehension or fear. The youth also contended that it was necessary to prove that he "knew or should have known he was displaying the object before others in a manner likely to engender fear of bodily harm."

The Court of Appeal affirmed the juvenile court's order sustaining the petition. The court interpreted the "reasonable person" in section 417.4 to include anyone who was a witness to the actions concerning the imitation firearm, not just the person against whom the firearm was drawn or to whom it was exhibited. The court based its decision on the public policy concerns stated in the legislative history, including the need to address situations where a person brandishing an imitation firearm is wounded or killed by a police officer or bystander. Similarly, the appellate court also concluded that the language of section 417(a)(2), making it a crime to draw or exhibit an actual gun in a threatening manner "in the presence of any other person" does not preclude an interpretation of section 417.4 that a bystander and not just the victim may also experience fear or apprehension even though section 417.4 is not as explicitly drafted. The appellate court rejected the youth's contention that it was necessary to prove that he "knew or should have known" that he was creating fear of bodily harm by his display of the gun before others, because section 417.4 has no specific intent element. The question was, therefore, whether there was enough evidence to support the conclusion that a reasonable person in the bystander's position would have felt fear or apprehension. The appellate court concluded that there was substantial evidence supporting the conclusion in this case.