Delinquency Case Law

In re Ryan D. (July 30, 2002) 100 Cal.App.4th 854 [123 Cal.Rptr.2d 193]. Court of Appeal, Third District.

The juvenile court found that a youth had violated Penal Code section 422 (threatening to commit a crime that will result in death or serious bodily injury) and Health and Safety Code section 11357 (forbiding possession of more than 28.5 grams of marijuana). Subsequently, the youth was made a ward of the court and was placed on home probation.
A peace officer assigned to a high school had issued the youth a citation for possessing marijuana off campus during school hours. Angry that the officer had cited him for marijuana possession, one month later the youth painted a violent picture of the officer and turned it in for an art class project. The painting depicted the youth shooting the officer in the back of the head, with pieces of her face and flesh being blown away. The teacher took the picture to the assistant principal, who in turn showed the picture to the peace officer. The peace officer then became concerned about her safety. When confronted about the painting, the youth stated that the painting was just an expression of his anger over having gotten into trouble because of the officer. The youth also indicated that he had not expected the painting to be shown to the officer and he had not intended to scare her. The youth had turned the picture in expecting to receive a grade or credit. However, while being questioned by the assistant principal, the youth agreed that it was reasonable to expect that the officer would eventually see the picture. Thus, the juvenile court held that the youth had violated Penal Code section 422 because there was a possibility that the youth had had the dual intent of turning the picture in for a grade and threatening the officer. The youth appealed the decision of the juvenile court, contending that the painting did not constitute a criminal threat under section 422 because he did not intend to threaten to kill the officer.
The Court of Appeal reversed the juvenile court's decision finding the youth had violated section 422. The appellate court stated that to prove a violation of section 422, the prosecution had to establish that: "(1) the minor 'willfully threatened to commit a crime which will result in death or great bodily injury to another person,' (2) the minor 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) 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) 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) the threatened person's fear was 'reasonable' under the circumstances." The appellate court stated that in applying the established legal standards to the evidence in this case, two factors must be kept in mind: (1) section 422 cannot be applied to constitutionally protected speech but must be "narrowly directed only to threats that pose a true danger to society," and (2) the statutory definition of the crime proscribed by section 422 requires determining the facts and then balancing them to determine whether, viewed in their totality, the circumstances are sufficient to meet the requirement that the communication "convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat."

The appellate court concluded that the evidence did not establish that the youth intended to convey a threat to the officer, it only established that the youth took the painting to class and turned it in for credit. He did not specifically intend a threat to be conveyed to the victim. The court further held that 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. The appellate court reasoned that turning in a violent painting to receive class credit would be a "rather unconventional and odd means of communicating a threat." Furthermore, the court stated that threats are usually made in the presence of another or while the perpetrator "is in a rage." In this case, the youth drew the painting a month after the officer got him in trouble; no evidence suggested that the youth remained in a rage for the entire month or that he intended the picture as a threat to the officer. The appellate court also pointed out that the youth did not display the painting where the officer could see it or communicate with the officer to advise her that she should see the painting. Therefore, the court held that "viewed in the light most favorable to the judgment," the "totality of the circumstances" establishes that the youth could have foreseen the possibility that the officer would view the painting. However, the court held that the evidence was not sufficient to establish that, at the time he acted, the youth had the specific intent that the painting would be shown to the officer or that the painting was so "unequivocal" as to convey an "immediate" threat of the execution of a crime against the officer. Accordingly, the appellate court reversed the juvenile court's conviction of the youth for violating Penal Code section 422. The court affirmed the finding that the youth violated Health and Safety Code section 11357 (b).