In re A.S.

Filed 6/24/14
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re A.S., a Person Coming Under the H039825
Juvenile Court Law. (Santa Clara County
Super. Ct. No. JV39630)

THE PEOPLE,

Plaintiff and Respondent,

v.

A.S.,

Defendant and Appellant.

STATEMENT OF THE CASE
On October 25, 2012, the Santa Clara County District Attorney filed a juvenile
wardship petition alleging that 16-year-old A.S. committed the following offenses: first
degree burglary (Pen. Code, §§ 459/460, subd. (a); count 1),1 two counts of resisting,
delaying, or obstructing an officer (§ 148, subd. (a)(1); counts 2 and 4), prowling (§ 647,
subd. (h); count 3), and possession of 28.5 grams or less of marijuana (Health and Saf.
Code, § 11357, subd. (b); count 5). On December 3, 2012, A.S. admitted counts 1, 2, and
3, and counts 4 and 5 were dismissed. The juvenile court granted deferred entry of
judgment and placed A.S. on probation.

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Subsequent unspecified statutory references are to the Penal Code.
 On March 4, 2013, the Santa Clara County District Attorney filed a second
juvenile wardship petition alleging that 17-year-old A.S. committed the following
offenses: criminal threats (§ 422; count 1), driving without a license (Veh. Code,
§ 12500, subd. (a); count 2), resisting, delaying, or obstructing an officer (§ 148,
subd. (a)(1); count 3), and possession of 28.5 grams or less of marijuana (Health and Saf.
Code, § 11357, subd. (b); count 4). A.S. admitted counts 2, 3, and 4 on May 17, 2013.
At the conclusion of a contested jurisdiction hearing on May 17, 2013, the court found
that A.S. had made a criminal threat, and it declared the offense to be a felony.
On May 31, 2013, the court declared A.S. to be ward of the court. The court
ordered that A.S. remain on probation. Among the various conditions of probation, the
court ordered that that A.S. “have no contact of any type” with Hoang D., Irene Z., and
Paul T.
A.S. now appeals from the judgment of wardship. On appeal, he contends that
there was insufficient evidence that he made a criminal threat. He also contends that the
no-contact probation conditions are unconstitutionally vague and overbroad. As set forth
below, we will affirm.
STATEMENT OF THE FACTS
On January 14, 2013, A.S.’s mother, T.W., phoned Paul Thacker, a family friend.
During the phone call, Thacker heard A.S. and T.W. fighting. Thacker heard T.W.
scream and say, “Get your hands off me.” Thacker recorded the phone call and ran to the
San Jose home that T.W. and A.S. shared.
When Thacker arrived at the house, T.W. stated that A.S. was upstairs. Thacker
went upstairs and played the recorded phone call for A.S. Thacker said, “You don’t treat
your mom like this. You don’t disrespect your mom.” A.S. became upset and told
Thacker to “stay out of his business.” A.S. stated to Thacker, “I’m gonna shoot your
fucking ass with my Glock.” A.S. loudly said, “I’m gonna kill your fucking ass.”

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Thacker “was in fear” when A.S. made the comments. Thacker exited the house. As he
walked down the house’s stairs, he was “scared,” “upset,” and “shaking.”
Thacker called 911 from outside the house. While Thacker was on the phone with
911, he saw A.S. run down the house’s stairs. Thacker “was in fear” when A.S. was
running down the stairs. A.S. “put his hand in [Thacker’s] face like it was a gun.” A.S.
loudly said, “pow, pow, pow.” He also said, “I swear to God I’m gonna shoot your
fucking ass.” He then left the area. Thacker feared for his safety. He believed that A.S.
could actually shoot him with a gun. He noted that, although he had never seen A.S. with
a gun, he had seen A.S. with a B.B. gun.
After A.S. left, Thacker talked to T.W. for “a little bit.” Thacker then walked to
his own house. As he walked, he “was looking over [his] shoulder” because he did not
know where A.S. was. He was “nervous” as he walked home.
Approximately four hours after A.S. threatened Thacker, Thacker met with police
officers. He was “still upset” and “still . . . shaking” when he met with the police. He
told an officer that he thought A.S. was capable of killing him. After he talked to the
police, he “calmed down”
On cross-examination, Thacker testified that he was “not afraid of [A.S.] as a
person.” On re-direct examination, Thacker clarified that he was afraid of A.S. when
A.S. was angry. He explained that he feared for his safety on occasions when A.S. lost
his temper. When the court asked Thacker if he was afraid of A.S., Thacker responded:
“I was scared at the time. But what I’m saying is I wasn’t scared of [A.S.] as a person as
a person [sic], but I was scared at the time.”
A.S.’s girlfriend, S. L., testified for A.S. She testified regarding an occasion when
Thacker punched A.S. in downtown San Jose. She explained that Thacker parked his car
near where she and A.S. were standing, yelled at A.S., punched A.S. in the face while

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remaining in the car, and drove away. She could not recall when the incident occurred.
When questioned about the incident, Thacker denied punching A.S.
DISCUSSION
I. Sufficiency of the Evidence
A. Standard of Review
An appellate court’s review of the sufficiency of the evidence in a juvenile
delinquency proceeding “is governed by the same principles applicable to adult criminal
appeals.” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.) Under those
principles, the appellate court must “ ‘determine whether the record contains any
substantial evidence tending to support the finding of the trier of fact, and in considering
this question [the appellate court] must view this evidence in the light most favorable to
the finding.’ ” (Ibid.) “Substantial evidence is evidence that is reasonable, credible, and
of solid value such that a reasonable trier of fact could find the appellant guilty beyond a
reasonable doubt.” (Ibid.) “The test is not whether guilt is established beyond a
reasonable doubt, but whether any ‘rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” (Ibid.) “The trier of fact, not the
appellate court, must be convinced of the minor’s guilt, and if the circumstances and
reasonable inferences 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.” (In re James B. (2003) 109 Cal.App.4th 862,
872.)
B. Section 422 and the Elements A.S. Challenges
Section 422 prohibits criminal threats. “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

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statement . . . is to be taken as a threat, even if there is no intent of actually carrying it
out,’ (3) that the threat . . . 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.)
A.S. contends that we must reverse the true finding on the criminal threats count
because there was insufficient evidence to support the third and fourth elements of the
offense. As explained below, we conclude that there was substantial evidence supporting
those elements.
C. There was Sufficient Evidence Supporting the Third Element
In regard to the third element, A.S. contends that there was no evidence that
Thacker perceived A.S.’s statements “as a real and genuine threat” subject to “immediate
prospect of execution.” A.S. emphasizes that Thacker “knew [the] statements were mere
puffery.” We are not persuaded by A.S.’s argument.
The third element of section 422 requires the threat, “on its face and under the
circumstances in which it is made,” to be “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.” (§ 422, subd. (a).) “ ‘The use of the word “so”
indicates that unequivocality, unconditionality, immediacy and specificity are not
absolutely mandated, but must be sufficiently present in the threat and surrounding
circumstances to convey gravity of purpose and immediate prospect of execution to the
victim.’ ” (People v. Bolin (1998) 18 Cal.4th 297, 340.) “Thus, the third element’s four
enumerated statutory elements—unequivocality, unconditionality, immediacy and

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specificity—are ‘simply the factors to be considered in determining whether a threat,
considered together with its surrounding circumstances, conveys those impressions to the
victim.’ ” (People v. Wilson (2010) 186 Cal.App.4th 789, 807 (Wilson).) “While the
third element of section 422 . . . requires the threat to convey ‘ “a gravity of purpose and
an immediate prospect of execution of the threat,’ ” it ‘does not require an immediate
ability to carry out the threat.’ ” (Ibid.) “The appraisal of the immediacy of a threat
under section 422 quite appropriately includes assessment of the sense of urgency and
foreboding caused to the person being threatened.” (Id. at p. 817, fn 3.)
Here, A.S.’s statements were certainly unequivocal, unconditional, and specific:
he threatened to “shoot [Thacker’s] fucking ass with [his] Glock” and to “kill [Thacker’s]
fucking ass.” To emphasize his point, A.S. formed his hand into the shape of a gun,
placed it in Thacker’s face, and said, “pow, pow, pow.” A.S. was upset when he made
the statements, and he made the statements in a loud voice. The statements, combined
with the circumstances under which they were made, conveyed to Thacker an immediate
prospect of execution of the threat. Thacker testified that he believed A.S. could actually
shoot him with a gun. After A.S. threatened him, Thacker called 911, and he told a
police officer that he thought A.S. was capable of killing him. The foregoing evidence
constituted substantial evidence that A.S.’s statements conveyed a true threat subject to
immediate prospect of execution. We therefore must conclude that there was sufficient
evidence supporting the third element.
Contrary to A.S.’s assertion, the evidence did not establish that Thacker perceived
the statements as mere puffery. Thacker never testified that he believed A.S. was joking
or making exaggerated statements. Rather, Thacker testified that he believed A.S. could
actually shoot him, and he immediately called 911 when A.S. threatened him. Although
the evidence did not show that A.S. was armed with a gun when he threatened Thacker,
such evidence was not required. Section 422 requires only evidence of an immediate

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prospect of execution of the threat, not evidence of an immediate ability to carry out the
threat. (Wilson, supra, 186 Cal.App.4th at p. 807.) Thus, we are not persuaded by A.S.’s
contention that Thacker believed the statements to be mere puffery.
D. There was Sufficient Evidence Supporting the Fourth Element
A.S. contends that there was insufficient evidence to support the fourth element
because Thacker’s testimony failed to show that Thacker was in sustained fear after the
threatening comments. A.S. emphasizes that Thacker’s “fear subsided in minutes.”
Again, we are not persuaded by A.S.’s argument.
The fourth element of section 422 “requires proof of a mental element in the
victim.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen).) The evidence must
show that the victim was “in sustained fear for his or her own safety or for his or her
immediate family’s safety.” (§ 422, subd. (a).) Fear is sustained when it lasts for “a
period of time that extends beyond what is momentary, fleeting, or transitory.” (Allen,
supra, 33 Cal.App.4th at p. 1156.) Fear lasting 15 minutes has been held to be sustained
fear. (People v. Fiero (2010) 180 Cal.App.4th 1342, 1349; Allen, supra, 33 Cal.App.4th
at p. 1156.)
Here, Thacker testified that he was “in fear,” “scared,” “upset,” and “shaking”
immediately after A.S. threatened him. He explained that he believed A.S. could actually
shoot him with a gun. The evidence demonstrated that Thacker’s fear continued after he
left the scene—Thacker testified that he was “nervous” and “looking over [his] shoulder”
as he walked home. Indeed, the evidence showed that Thacker was in fear hours after
A.S. threatened him. Thacker testified that when he met with police approximately four
hours after the incident, he was “still upset,” “still shaking,” and told an officer that he
thought A.S. was capable of killing him. The foregoing evidence constituted substantial
evidence that Thacker was in sustained fear. We therefore must conclude that there was
sufficient evidence supporting the fourth element.

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 In arguing that Thacker was not in sustained fear, A.S. points out that Thacker was
“not afraid of [A.S.] generally.” It is true that Thacker testified that he was “not afraid of
[A.S.] as a person.” However, Thacker clarified that he was afraid of A.S. when A.S.
was angry. He also testified that he feared for his safety on occasions when A.S. lost his
temper. Thus, because the evidence showed that A.S. was angry when he threatened
Thacker, Thacker’s testimony that he was not afraid of A.S. as a person does not require
us to conclude that Thacker was not in sustained fear.
E. Conclusion
In summary, we conclude that the true finding on the criminal threats count was
supported by substantial evidence. We accordingly must affirm the true finding on that
count.
II. The No-Contact Probation Conditions
A. Background
As conditions of probation, the juvenile court ordered A.S. to “have no contact of
any type with Hoang D.,” “have no contact of any type with Irene Z.,” and “have no
contact of any type with Paul T.”
When the court stated its intention to impose a condition prohibiting contact with
Paul T., the court explained the meaning of the term “no contact” to A.S.: “When I say
no contact with the victim, I’m going to make that clear to you, [A.S.] A lot of people
think as long as I don’t talk to him directly, that’s not contact. It means more than that.
So, for example, don’t text him. Don’t have your friends text him. Don’t Facebook him.
If you see him on the street, you don’t flip him off. You don’t mad dog him. [¶] . . .
When you see him, you avoid him. When you see trouble, you walk away from it.
That’s really the common sensical [sic] thing you need to do.”

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 B. A.S.’s Argument
A.S. contends that the no-contact conditions are unconstitutionally vague and
overbroad “because they contain no knowledge requirement nor do they specify any
particular distance.” He emphasizes that he “could inadvertently enter a store or other
public place where Hoang D., Irene Z., or Paul T. [is] present and thereby unknowingly
violate his probation.” He further emphasizes that “throughout the duration of his
probation, he will not know where Hoang D., Irene Z., or Paul T. live, work, travel, and
recreate.” He therefore requests that we modify the no-contact conditions to “include a
knowledge requirement,” “specify a particular distance restriction,” and “name a few
places where [he] should avoid, or traverse with care.” As explained below, we conclude
that the no-contact conditions are neither vague nor overbroad.
C. The No-Contact Conditions are Not Vague or Overbroad
“[P]robation conditions may be challenged on the grounds of unconstitutional
vagueness and overbreadth.” (People v. Freitas (2009) 179 Cal.App.4th 747, 750.) We
review such constitutional challenges de novo. (In re Shaun R. (2010) 188 Cal.App.4th
1129, 1143.)
“A probation condition ‘must be sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] A
probation condition that imposes limitations on a person’s constitutional rights must
closely tailor those limitations to the purpose of the condition to avoid being invalidated
as unconstitutionally overbroad. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875,
890 (Sheena K.).) “California appellate courts have found probation conditions to be
unconstitutionally vague or overbroad when they do not require the probationer to have
knowledge of the prohibited conduct or circumstances.” (People v. Kim (2011) 193
Cal.App.4th 836, 843.)

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 Probation conditions are interpreted with “common sense.” (In re Ramon M.
(2009) 178 Cal.App.4th 665, 677.) “A probation condition should be given ‘the meaning
that would appear to a reasonable, objective reader.’ ” (People v. Olguin (2008) 45
Cal.4th 375, 383.) A probation condition that otherwise would be deemed vague or
overbroad “may be constitutional because the juvenile court offered additional oral or
written comments clarifying” the condition. (Sheena K., supra, 40 Cal.4th at p. 891; see
also In re Frank V. (1991) 233 Cal.App.3d 1232, 1241 [considering the juvenile court’s
comments in holding that a probation condition was not overbroad].)
Here, A.S. asserts that the no-contact conditions are vague and overbroad because
he could arrive at a public location where Hoang D., Irene Z., and Paul T. are present, be
unaware of their presence, and unknowingly violate the no-contact conditions. This
argument is unconvincing. The no-contact conditions specify that A.S. is to “have no
contact” with Hoang D., Irene Z., and Paul T. A reasonable, objective reader would
construe the term “contact” as requiring awareness of the presence of the contacted
person. Indeed, it belies common sense to conclude that A.S could be in contact with
Hoang D., Irene Z., or Paul T. without even realizing it. Thus, inherent in each of the no-
contact conditions is the requirement that A.S. be aware of the presence of Hoang D.,
Irene Z., or Paul T. and the requirement that A.S. knowingly contact those individuals.
Any potential confusion was clarified by the juvenile court’s comments. The court
provided many examples of ways in which A.S. could violate the no-contact conditions,
all of which required A.S. to be aware of the contact. The court also advised A.S. on
compliance with the no-contact conditions if he arrives at a place and, unbeknownst to
him, Hoang D., Irene Z., or Paul T. is present: “When you see him, you avoid him.
When you see trouble, you walk away from it.” The court’s comments made clear that
A.S. could not unknowingly violate the no-contact conditions. Accordingly, for the

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foregoing reasons, we must conclude that the no-contact conditions are not vague or
overbroad. Modification of the no-contact conditions therefore is unnecessary.
DISPOSITION
The judgment is affirmed.

______________________________________
RUSHING, P.J.

WE CONCUR:

____________________________________
PREMO, J.

____________________________________
MÁRQUEZ, J.

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Trial Court: Santa Clara County
Superior Court No.: JV39630

Trial Judge: The Honorable Jesus Valencia, Jr.

Attorney for Defendant and Appellant Eric John Nelson
A.S.: under appointment by the Court
of Appeal for Appellant

Attorneys for Plaintiff and Respondent Kamala D. Harris
The People: Attorney General

Dane R. Gillette,
Chief Assistant Attorney General

Gerald A. Engler,
Senior Assistant Attorney General

Ronald A. Niver,
Deputy Attorney General

Sharon G. Birenbaum,
Deputy Attorney General

Elizabeth Hereford,
Deputy Attorney General

People v. A.S.
H039825

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