In re Billy D. CA4/1

Filed 7/15/13 In re Billy D. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re BILLY D., a Person Coming Under
the Juvenile Court Law.
D062978
THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J231471)

v.

BILLY D.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,

Browder A. Willis, III, Judge. Affirmed.

Lillian Y. Lim, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Melissa Mandel and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and

Respondent.
 Following a contested jurisdictional hearing on a petition under Welfare and

Institutions Code section 602 concerning Billy D., the juvenile court made a true finding

he had made a criminal threat to a classmate, a felony. (Pen. Code,1 § 422.) Billy was

placed on probation.

Billy appeals, contending no sufficient evidence supports the true finding that the

classmate ever heard or was told that Billy made a threatening statement toward him that

was unconditional in nature. Instead, third party classmates relayed to the victim what

Billy said about him, and later, Billy explained to an investigating police officer that he

told two of his friends that he had a knife that he would use for stabbing and scaring the

victim, and he expected that his friends would spread his threat around school. Billy

challenges the admission of this evidence as violative of hearsay rules and his Sixth

Amendment rights of confrontation.

We find there is sufficient evidence to establish that Billy made a criminal threat

that was communicated, it was unconditional in nature, and there was no prejudicial

evidentiary error. The judgment and true finding must be affirmed.

STATEMENT OF FACTS

In February 2012, Billy and Christopher G. (Christopher) were both students at a

La Mesa middle school. The morning of February 24, Christopher talked to Billy, to say

that he was upset because he heard Billy had been saying rude things about him, such as

1 All further statutory references are to the Penal Code unless otherwise indicated.
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name calling and criticizing his choice in music. Billy did not seem interested in sorting

things out, as Christopher was requesting.

Later that day, a crowd formed in the boys' gym class while Billy was telling them

that he would use a knife on Christopher if Christopher tried to fight with him, such as if

Christopher used a police baton that he supposedly had. Christopher's friend "Chris" told

him that Billy had a knife in his backpack. Christopher was notified by "some other

students that I didn't know" that Billy was going to try to stab him after school, while

Christopher was on his way home. Christopher·felt worried, defenseless and scared of

being hurt by Billy, so he asked his brother to pick him up from school for the next week

or two, to avoid Billy, and he also changed his walking route home from school for the

same reason.

Christopher was interviewed on February 24 by La Mesa police officer Jennifer

McNamara. Christopher told her that he began shaking with fear as soon as he heard of

Billy's threat. During this interview, Officer McNamara noticed that Christopher's legs

and hands were shaking, he seemed to have been crying (puffy and bloodshot eyes), and

his voice was unsteady.

Next, Officer McNamara interviewed Billy, asking whether he had told anyone

that he had a knife with him or that he wanted to stab Christopher. Billy said he told two

friends, Kyle and "Chris," that he had a knife and that he would use it to stab Christopher,

"just to scare him," and he anticipated his friends would go around kind of spreading the

word about those statements. According to testimony from Officer McNamara, Billy did

not use any conditional language about using the knife "if" or "only if" something

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happened. Billy told her he did not believe the rumor that Christopher had a police baton,

but he felt threatened by him.

School officials searched Billy's belongings and no knife was found. Although

Officer McNamara consulted the school secretary and staff, she could not identify any

other witnesses.

Billy was arrested and this petition charged him with a felony criminal threat. At

the jurisdictional hearing, the court ruled upon motions in limine regarding hearsay

evidence, and allowed testimony to be introduced about statements from unavailable

student witnesses, if they pertained to an operative fact and were presented for a non-

hearsay purpose.

Christopher and the investigating officer testified, as did another student,

Gregory L. Gregory told the court he was around while Billy was talking to the others in

gym class that day, and Billy told him that he planned to pull out his knife, only if

Christopher tried to fight with him. The crowd was talking quietly so that Christopher,

who was standing in line nearby, did not hear what Billy was saying. Gregory did not

report this to Christopher.

After hearing argument, the juvenile court made a true finding and placed Billy on

probation. He appeals.

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 DISCUSSION

I

INTRODUCTION AND STANDARDS

Billy contends there is insufficient evidence to support the true finding on the

criminal threat charge, because the prosecution failed to show he directly or actually

communicated with Christopher, to convey any unconditional threat. (People v. Felix

(2001) 92 Cal.App.4th 905, 913-914 (Felix).) Generally, substantial evidence review

requires this court to review the entire record, viewing the evidence in the light most

favorable to the trial court's decision. We draw all reasonable inferences in favor of the

lower court's findings, and make no credibility determinations, nor do we reweigh the

relative strength of competing evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576-

578.) In juvenile proceedings, the same standard of review used for appeals from adult

criminal judgments applies. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088; In re

Ricky T. (2001) 87 Cal.App.4th 1132, 1136.)

Before applying those substantial evidence rules to the record before us, we first

address the merits of Billy's arguments that the trial court erroneously admitted into

evidence some out-of-court statements made by unidentified persons at school, as

establishing the fact of making the threat. We consider hearsay principles and his claims

of violation of his witness confrontation rights. (Crawford v. Washington (2004) 541

U.S. 36, 51 (Crawford).) Additionally, we discuss his theory that his own statements

about the offense were not adequately corroborated by independent evidence (corpus

delicti).

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 II

ANALYSIS

A. Requirement of Actual Communication to Victim of Unconditional Threat

The language of section 422 prohibits the making of a threat that is so

"unequivocal, unconditional, immediate, and specific" that it conveys to the victim an

"immediate prospect of execution." Even though the person making the threat must have

the specific intent that it be taken as a threat, he need not have any "intent of actually

carrying it out." (In re David L. (1991) 234 Cal.App.3d 1655, 1658 (David L).) As a

consequence of the threatening statement, the intended recipient must reasonably feel

"sustained fear" for his safety or his immediate family's safety. (Ibid.)

It is well established that "section 422 does not in terms apply only to threats made

by the threatener personally to the victim nor is such a limitation reasonably inferable

from its language. The kind of threat contemplated by section 422 may as readily be

conveyed by the threatener through a third party as personally to the intended victim.

Where the threat is conveyed through a third party intermediary, the specific intent

element of the statute is implicated. Thus, if the threatener intended the threat to be taken

seriously by the victim, he must necessarily have intended it to be conveyed." (David L.,

supra, 234 Cal.App.3d 1655, 1659.)

When a trial or appellate court evaluates the showing made at trial about the

required specific intent, "the setting in which the defendant makes the remarks must be

considered." (Felix, supra, 92 Cal.App.4th 905, 913-914.) " '[S]ection 422 demands that

the purported threat be examined "on its face and under the circumstances in which it was

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made." ' [Citation.]" (Ibid.) For example, evidence about a "climate of hostility"

between the minor defendant and the victim may support inferences of intent to threaten,

and proof of the manner in which the statements were made can also support an inference

the defendant intended that the victim would feel threatened. (David L., supra, 234

Cal.App.3d 1655, 1659.)

In a section 422 analysis, "conditionality is only one circumstance to be

considered in the overall analysis of whether the threat is a true threat, and is not a bright

line separating actionable threats from protected ones." (People v. Stanfield (1995) 32

Cal.App.4th 1152, 1162 (Stanfield).) The circumstances surrounding the threat may

establish its nature as a true threat, regardless of any grammatical conditions within its

text. (Ibid.) Based on these statutory standards, we examine the sufficiency of the

challenged evidence.

B. Hearsay Rules and Operative Facts

At trial, Billy's counsel moved to exclude any statements of unavailable witnesses

on hearsay grounds. In response, the prosecutor argued that the statements of

unavailable witnesses were not hearsay, and would instead be used as an operative fact to

prove an element of the offense. In denying the motion, the court ruled the statements

were not being offered for the truth of the matter, but to establish "the fact that there was

language that would lead the victim to be in fear." Billy claims evidentiary error, in that

this allowed the prosecution "to fill an evidentiary gap with speculation." (Felix, supra,

92 Cal.App.4th 905, 912.) We address this argument under a standard of abuse of

discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

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 " 'There is a well-established exception or departure from the hearsay rule

applying to cases in which the very fact in controversy is whether certain things were said

or done and not as to whether these things were true or false, and in these cases the words

or acts are admissible not as hearsay but as original evidence.' [Citations.] [¶] In these

situations, the words themselves, written or oral, are 'operative facts,' and an issue in the

case is whether they were uttered or written." (1 Witkin, Cal. Evidence (5th ed. 2012)

Hearsay, § 32, p. 825.) An example of such an admissible operative fact is an oral

conversation that constituted a criminal conspiracy or bribery agreement. (People v.

Collier (1931) 111 Cal.App. 215, 240.) "Thus, when, as a part of the agreement, one or

more of the conspirators undertakes to ask for a bribe, one or more agrees to accept a

bribe, one or more agrees to do or not to do some act for the purpose of effectuating the

compact, and one or more of the conspirators gives his assent to the compact either by

express words or by actions from which such assent might be implied, evidence of such

facts . . . is competent evidence of the acts or declarations which form 'a part of the

transaction' which is in dispute." (Id. at pp. 240-241; 1 Witkin, Cal. Evidence, supra,

§ 36, p. 829.)

Likewise in People v. Patton (1976) 63 Cal.App.3d 211, 218-219, the court ruled

that a police-made tape recording of a pimp-panderer, talking about his offer to engage a

young woman as a prostitute, was properly admissible nonhearsay, because his words

"constituted the substantive offense with which he was charged [encouraging a woman to

become a prostitute]." (Id. at p. 219; also see People v. Dell (1991) 232 Cal.App.3d 248,

258 [words of solicitation for prostitution are "operative facts" or "verbal acts"].)

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 Using this line of analysis, we conclude the trial court correctly admitted the

unidentified or unavailable students' out-of-court statements made to Christopher as

evidence to show the operative facts of the criminal threat. The statements referred to by

the testifying witness were used for this nonhearsay purpose.

C. Witness Confrontation Analysis

Alternatively, Billy contends it was a violation of his Sixth Amendment witness

confrontation rights when the trial court admitted into evidence, over his objection,

references to the out-of-court statements made by unidentified classmates. Determining

the scope of these Sixth Amendment protections is a question of law decided on

independent review. (See People v. Cage (2001) 40 Cal.4th 965, 970, 984, 991.)

A defendant has a right to confront those " 'who "bear testimony" against him.' "

(Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 309.) Statements that " 'bear

testimony' " and are testimonial are those " 'statements that were made under

circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.' " (Crawford, supra, 541 U.S. at pp.

51-52.)

Billy objects to the use of statements by unidentified students that Christopher

repeated in court, but he does not recognize that those were nontestimonial in nature.

There is no indication in the record that the conversational buzz at the gym class about

Billy having a knife and planning to use it on Christopher, or its follow up by "Chris,"

occurred in the presence of governmental or school officials, nor in anticipation of

litigation. (See People v. Jefferson (2008) 158 Cal.App.4th 830, 842-844 [friends'

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conversation is not testimonial]; People v. Cervantes (2004) 118 Cal.App.4th 162, 174

[codefendant's statement to a neighbor about medical treatment not testimonial].) As a

matter of law, this argument lacks merit.

D. Substantial Evidence Analysis

Generally, in making his arguments, Billy lists the facts in the light most favorable

to his case and relies on selective portions of the picture. Only lip service is paid to how

the proper standard of review should apply here. However, section 422 clearly requires

that the trier of fact consider whether, under all the circumstances of the making of the

statements, they were so unequivocal, unconditional, immediate, and specific as to

convey to the victim that the defendant had such a "gravity of purpose and an immediate

prospect of execution of the threat," to cause that person to reasonably be placed in

sustained fear for safety. (In re Ricky T., supra, 87 Cal.App.4th 1132, 1136.)

This record shows that the circumstances in which Billy's statements were made

included Christopher's previous, unsuccessful approach to Billy "to sort things out."

Within a short period of time, classmates were quietly discussing Billy's claimed or

perceived possession of a knife and his planned use of it to stab Christopher. Billy

communicated this news to other classmates with the intention that they would kind of

spread it around. Christopher was then approached by his friend "Chris" and students

that he did not know, who told him about the knife plan. Such secondhand

communications of a threat, through fellow students with encouragement to them to

spread the word to the victim, fully support reasonable inferences that there was a hostile

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climate brewing and that Billy intended to use these intermediaries to convey a threat to

Christopher. (David L., supra, 234 Cal.App.3d 1655, 1658.)

Billy, however, argues it would be speculation "to conclude that unidentified

students attributed specific threatening statements to Billy in sharing their conclusion

Billy was going to try and stab Christopher." He also points out that Gregory testified

that Billy said he would use a knife only if Christopher tried to fight him, and so that

language arguably did not convey a direct threat. Also, Gregory said he never told

Christopher about that conversation with Billy.

Other equally relevant circumstances were proven by testimony from Christopher

and also by the admissions made by Billy to the investigating officer, that he told two

friends in particular, Kyle and "Chris," that he was going to stab Christopher and he

wanted them to spread the threat around. This conclusion is consistent with the court's

views in Felix, supra, 92 Cal.App.4th 905, that an out-of-court conversation (between a

defendant's therapist and defendant's former girlfriend), could have been offered and

admitted not for the truth of the matter asserted (i.e., that a threat was made to the

girlfriend), but to show whether in fact a communication of the threat occurred: "The

trial judge could have determined the relevance of this disputed preliminary fact by way

of an Evidence Code section 402 hearing where [defendant's therapist] could have

testified out of the presence of the jury, about what he said to [the former girlfriend]."

(Felix, supra, at p. 912.) The out-of-court statements were properly used to show this

communication occurred.

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 There was additional relevant and probative evidence from the investigating

officer, who observed when talking with Christopher that he appeared physically to be in

a state of fearfulness, as a result of what the fellow students told him about the knife use

threat. (Felix, supra, 92 Cal.App.4th 905, 912.) All of this amounted to sufficient

evidence outlining the factual setting in which a defendant's remarks were made, to show

the context in which his words were uttered and conveyed. "The prosecution must prove

sufficient facts to show that the defendant's words fell squarely within section 422."

(Felix, supra, at p. 915.) With respect to the successful communication of an

unconditional threat, the trial court had a reasonable basis in the evidence to make a true

finding on the charge.

Moreover, we reject Billy's claim there is insufficient evidence, apart from his own

statements, to show the corpus delicti of the criminal threat. The standard of review

applicable to such a challenge is the " 'slight or prima facie' " standard. (People v.

Jennings (1991) 53 Cal.3d 334, 368.) The main issues are whether there is some

independent indication in the evidence as a whole that the charged crime actually

happened, and therefore, "that the accused is not admitting to a crime that never

occurred." (Ibid.; People v. Ochoa (1998) 19 Cal.4th 353, 405.)

Here, the prosecution did not rely solely on Billy's extrajudicial statements, and

supplied other evidence raising an inference of his criminal conduct. In addition to the

admissions that Billy made to the investigating officer, Christopher testified about how

his friend Chris and "some other students that I didn't know came up to me, saying that

Billy was going to try to--that Billy was going to try to stab me after school, on my way

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home." Christopher reacted with visible fear symptoms and by calling his brother to pick

him up from school or changing his route. There was sufficient evidence that

Christopher was led to understand the "gravity of purpose and an immediate prospect of

execution" of Billy's threat. (Stanfield, supra, 32 Cal.App.4th at p. 1157.)

Moreover, the court was entitled to make credibility determinations in the case and

to give the evidence the weight it deemed appropriate. (People v. Humphrey (1996) 13

Cal.4th 1073, 1088-1089.) There were no hearsay rule violations, and the nontestimonial

evidence was properly admitted. The evidence in this record is sufficient to support the

true finding.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

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