Filed 8/31/21 In re M.B. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
IN RE M.B., a Person Coming 2d Juv. No. B307531
Under the Juvenile Court Law. (Super. Ct. No. FJ56779)
(Los Angeles County)
_____________________________
THE PEOPLE OF THE STATE
OF CALIFORNIA,
Plaintiff and Respondent,
v.
M.B.,
Defendant and Appellant.
“I’m going to bring a Glock 9 . . . to school tomorrow . . . and
shoot you in the head.”
M.B. appeals the juvenile court’s order sustaining a
wardship petition charging him with making a criminal threat in
violation of Penal Code section 422 (hereinafter section 422).
(Welf. & Inst. Code, § 602.) The court declared the offense a
misdemeanor, placed appellant on six months’ probation without
wardship, and ordered him released to a parent. Appellant
contends the evidence is insufficient to support the finding that
he made a criminal threat. We affirm.
STATEMENT OF FACTS
On September 5, 2019, appellant and E.M. were students
at Burbank Community Day School. Appellant was 14 years old
and E.M. was in the 11th or 12th grade. E.M. was acquainted
with appellant, who told her he had been expelled from his
previous school for bullying behavior.
During a break period that morning, E.M. sat at a table
with a group of her friends. Appellant was sitting at the same
table across from her. E.M. said hello to appellant and tried to
give him a “high-five,” but he said “no” and pushed her hand
away. Appellant mentioned a fellow student named Valerie, then
laughed and told E.M. in a monotone voice that “[i]f I was going
to shoot up the school, she would be first, and then it would be
you, and then everybody else.”
No one at the table laughed at the statement. E.M. was
scared, nervous, and confused. She told appellant that she was
not sure if he was joking, that he was making her nervous, and
that she “would not like him to say things like that because they
can be a real dangerous threat.” Appellant responded by
repeating the statement in a more serious tone with his fists
clenched. E.M. told appellant: “If you say anything like that
again, I will tell the school, and you’ve scared me, and I’m going
to leave this table.”
E.M. left the table, walked to her next class about 40 feet
away, and waited outside the front door for the bell to ring. A
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few minutes later, appellant walked up to E.M., clenched his
fists, and angrily said, “I’m going to bring a Glock 9 . . . to school
tomorrow . . . and shoot you in the head.” E.M. was “terrified”
and immediately went to the principal’s office and reported the
incident. She did not attend school the next day because she was
afraid and anxious.
About a week after the incident, appellant approached E.M.
at school and said “I was kidding, it was a joke.” E.M. replied
that she did not think appellant was joking but told him it was
“okay” because she “didn’t want to agitate him more.” At one
point E.M. sent appellant an Instagram message stating that she
would write a letter on his behalf because she “didn’t want to
make his life harder than it had to be,” but subsequently
“regretted sending it.”
Burbank Police Officer Dustin Rodriguez was assigned as a
School Resource Officer at Burbank Community Day School.
Officer Rodriguez interviewed E.M. and appellant and was
present when the principal spoke to appellant. Appellant said his
remarks to E.M. were made during a discussion with his friends
about firearms and knives. He admitting telling E.M. that he
would shoot her, but claimed he was merely “joking.”
Appellant testified in his own defense. He claimed that his
remarks were made during a discussion with his friends about
school shootings. E.M., who was “not friends with” appellant and
his friends and had never sat with them before, came to their
table “in the middle of the conversation.” While E.M. was sitting
at the table, appellant jokingly told her he was going to bring a
Glock 9 to school and shoot her in the head. Everyone laughed
and he only made the statement once. After E.M. left and walked
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to her next class, appellant “went up to her [and] told her [he]
was kidding[] and . . . not to trip about it.”
DISCUSSION
Appellant contends the evidence is insufficient to support
the finding that he made a criminal threat in violation of section
422. We disagree.
“‘The same standard governs review of the sufficiency of
[the] evidence in adult criminal cases and juvenile case: we
review the whole record in the light most favorable to the
judgment to decide whether substantial evidence supports the
conviction, so that a reasonable fact finder could find guilt beyond
a reasonable doubt. [Citations.]’ [Citation.]” (In re A.G. (2020)
58 Cal.App.5th 647, 653 (A.G.).) “‘“We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence.
[Citation.]” [Citation.] A reversal for insufficient evidence “is
unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support’” the
[judge’s] verdict.’” (People v. Manibusan (2013) 58 Cal.4th 40,
87.)
To prove that a criminal threat was made in violation of
section 422, the prosecution must establish “‘(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
statement . . . is to be taken as a threat, even if there is no intent
of actually carrying it out,” (3) that 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
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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.’ [Citations.]” (In re George T. (2004) 33 Cal.4th
620, 630.)
Appellant does not dispute that he told E.M. he was going
to bring a Glock 9 to school the next day and shoot her in the
head, that the threat conveyed to E.M. a gravity of purpose and
an immediate prospect of execution of the threat, that E.M. was
in sustained fear as a result of the threat, and that her fear was
reasonable under the circumstances. He nevertheless contends
that the evidence is insufficient to establish the second element of
the crime, i.e., that he made the threat with the specific intent
that it be taken as a threat. According to appellant, “the juvenile
court found true an allegation that a fourteen-year-old boy made
a criminal threat against a classmate on testimony that he made
an extremely unfunny joke for which he apologized.”
The juvenile court, however, expressly found that appellant
was not joking when he made the threat and rejected appellant’s
testimony to the contrary as not credible. “We defer, as we must,
to the trial [court’s] credibility determinations. [Citation.] And
we note there is nothing funny about threatening to take a gun to
school in any event.” (A.G., supra, 58 Cal.App.5th at p. 650.)
Moreover, “even if [appellant] made the [threat] as a joke, a
reasonable trier of fact could conclude the joke was made with the
intent that it be understood by [E.M.] as a threat.” (Id. at p. 655.)
Contrary to appellant’s claim, it is irrelevant that he
subsequently apologized to E.M. for threatening to bring a gun to
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school and shoot her. Although he notes that “[o]ne may, in
private, curse one’s enemies . . . safe from section 422 sanction”
(People v. Teal (1998) 61 Cal.App.4th 277, 281, italics added),
appellant’s threats were made directly to E.M.
Appellant also misplaces his reliance on In re Ricky T.
(2001) 87 Cal.App.4th 1132. The minor in that case—a 16-year-
old student who told a teacher “I’m going to get you” after the
teacher inadvertently hit him with a door—conceded that the
evidence was sufficient to establish the first two elements of
section 422, i.e., that he willfully threatened the teacher and did
so with the specific intent that it be taken as a threat. The Court
of Appeal agreed with the minor, however, that the evidence was
insufficient to establish the third and fourth elements of the
crime, i.e., that the nature of the threat and the circumstances in
which it was made conveyed a gravity of purpose and an
immediate prospect of execution of the threat, and that the threat
actually placed with teacher in sustained fear for his safety. (Id.
at pp. 1137-1141.) In reaching its conclusion, the court reasoned
among other things that “[a]ppellant’s intemperate, rude, and
insolent remarks hardly suggest any gravity of purpose” and that
“[a]ppellant’s statement was an emotional response to an
accident rather than a death threat that induced sustained fear.”
(Id. at pp. 1138, 1141.)
Here, appellant did not merely make intemperate, rude,
and insolent remarks. He made a clear, unambiguous, and
unequivocal death threat that plainly induced sustained fear in
the victim. He first told E.M. that “[i]f I was going to shoot up
the school, [Valerie] would be first, and then it would be you, and
then everybody else.” After E.M. conveyed that she did not think
the remark was funny, appellant repeated it in a more serious
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tone. After E.M. left the the table, appellant followed her,
clenched his fists, and angrily told her he was going to bring a
Glock 9 to school the next day and shoot her in the head. This
evidence, when viewed in the light most favorable to the
judgment, is plainly sufficient to support the juvenile court’s
finding that appellant made the threat with the specific intent
that it be taken as a threat. Appellant’s claim of insufficient
evidence thus fails.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
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Kevin Brown, Judge
Superior Court County of Los Angeles
______________________________
Lynette Gladd Moore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, David E. Madeo, and
Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and
Respondent.