Delinquency Case Law

In re Marcus T. (2001) 89 Cal.App.4th 468 [107 Cal.Rptr.2d 451]. Court of Appeal, Second District.

The juvenile court declared a child a ward of the court under Welfare and Institutions Code section 602. A uniformed officer for the school district saw the child smoking by the basketball court near the local high school. The officer asked the child what he was doing and the child replied that he could do whatever he wanted to do (in more vulgar terms). The officer placed the child in a wrist lock and began walking him to the dean’s office. The child pulled away, clenched his fists, and said that no one grabs him like that, that he was from a certain gang, and that he was going to mess the officer up and take the officer out. The officer feared that the child was going to punch him, so he grabbed and tossed the child to ground and then handcuffed him. The child was charged with violating Penal Code sections 71 (threatening a public officer) and 422 (making a terrorist threat). The child appealed, arguing that the juvenile court erred because the terrorist threat under section 422 was a lesser included offense of section 71 and when two crimes are based upon the commission of the same act, and one is a lesser and necessarily included offense of the other, then the offender may not be found guilty of both.

The Court of Appeal concluded that Penal Code section 422 was not a lesser included offense of section 71, but in fact, that the opposite was true. Both Penal Code sections 71 and 422 have four primary components: criminal intent, a victim, a threat, and a reaction from the victim. The victim in section 422 may be any person, but the victim in section 71 must be an officer or employee of any public or private educational institution or any public officer or employee. Also, the victim described in section 422 must be in fear of his or her own or their family’s safety, whereas the victim in section 71 need not experience any fear. Therefore, section 422 is not a necessarily included offense of section 71, because the former can be committed without committing the latter. The appellate court proceeded to analyze whether or not the child’s threat to the police officer in violation of section 71 was a lesser included offense of section 422. The appellate court raised the issue of whether the criminal conduct prohibited in section 422 encompassed the criminal conduct prohibited in section 71. The elements of the victim, the criminal intent, and the victim’s reaction described in section 71 are clearly encompassed in section 422. In this case, the officer was one victim in two roles (as the broad “person” in section 422 and as the officer in section 71); thus the intent to threaten an officer under section 71 is encompassed in the description of threat under section 422, and the lower-level reaction under section 71 is encompassed under section 422.

The only element of section 71 not encompassed in section 422 is the threat itself, which, under section 71, is to inflict an unlawful injury upon the person and property of the victim. In this case, the People made no attempt to prove that the child threatened the officer’s property. The appellate court questioned if the child should be found as having committed two felonies simply because the People alleged but did not prove that the child threatened the officer’s property. The appellate court asked the parties if it would be appropriate to direct the juvenile court to amend the complaint and strike the words “and property” from the petition. The child argued that an accusatory pleading may be amended at any stage of juvenile proceedings. The appellate court agreed with this argument and directed the juvenile court to delete the unproved allegation concerning the threat to property and amend the petition to reflect that the child committed one felony, not two. The appellate court remanded to the juvenile court to strike the finding that the child violated Penal Code section 71 and to add a statement to the record explaining the reason for the amendment.