In re C.C. CA3 ( 2022 )

Filed 8/26/22 In re C.C. CA3
Opinion following rehearing
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
In re C.C., a Person Coming Under the Juvenile Court C087924
Law.
THE PEOPLE, (Super. Ct. No. 52008590)
Plaintiff and Respondent, OPINION AFTER GRANT
OF REHEARING
v.
C.C.,
Defendant and Appellant.
This is a new opinion in this case, issued after we granted rehearing at the
Attorney General’s request. We now come to a different conclusion than that reached by
a different panel of this court in its May 17, 2022, opinion. We hold sufficient evidence
supports the threats charge and affirm the judgment as to that count. As we did in our
previous opinion, we reverse the juvenile court’s true finding on the unauthorized access
to a computer count. As modified, we affirm the judgment.
1
BACKGROUND
Appellant C.C. was adjudged a ward of the court under Welfare and Institutions
Code section 602 after the juvenile court sustained a petition alleging that C.C. attempted
to criminally threaten G.O., a classmate with whom he repeatedly talked about carrying
out a school shooting, and that he unlawfully accessed a school computer to search
“school shooting simulator.” The court placed him on probation with various terms and
conditions.
On appeal, C.C. contends the juvenile court’s true finding that he committed an
attempted criminal threat must be reversed because his speech and conduct was protected
by the First Amendment to the federal Constitution and because insufficient evidence
supports the finding. He also argues insufficient evidence supports the true finding that
he committed unauthorized access to a computer. We agree as to the last point.
FACTS
G.O. testified at the contested jurisdictional hearing that in early 2018 she and
C.C. attended the same high school. They were not friends, but over a two week period
they sat next to each other during English class. During that two week period, C.C.
talked about guns and school shootings with G.O. “every single day that [she] sat next to
him.” He told G.O. he had access to a gun at home. Sometimes, C.C. “would . . . get his
backpack and pretend like he was going to pull something out” and throw it at G.O., then
he would “look at . . . other kids in the class and pretend . . . he was shooting a gun.”
C.C. did this “randomly during class when he would be talking about it,” and every time
he did it, he scared G.O.
C.C. showed G.O. a list he made entitled “to do list” (list) with names of people he
wanted to shoot. G.O. was not on the list and she was not sure C.C. was serious about it,
but she was “kind of scared” by it. C.C.’s list included multiple students and his English
and math teachers, as well as an assistant school principal; next to that name was the
notation, “Shoot him unrecognizable.”
2
Although initially G.O. thought C.C. may have been joking, as he continued to
talk to her about bringing a gun to school and shooting people, she became scared. On
two occasions, C.C. told G.O. not to come to school because he intended to bring a gun
and shoot up their shared English class. This “really scared” G.O. She worried about
English class every day; she worried C.C. would hurt her. She was afraid each time he
walked in the classroom and sat down next to her.
C.C. also talked about guns in general, learning to shoot guns, and shooting
students while in other classes as well. During his math class, he sat next to I.F. and
described ways to orchestrate a school shooting. He talked about calling and making a
threat to the school to get everyone into the cafeteria; he said once the students were
assembled in the cafeteria, he would shoot as many people as possible.
I.F. testified that she saw C.C. make a list of people he did not like and he asked
her to do the same. She thought he wanted to hurt the faculty and students on his list.
B.L. was also involved in the conversation with C.C. and I.F. during math class
about making lists of people they did not like. While making her list, B.L. asked C.C. if
he was going to fight the people on the list and he responded, “no, no, no, petty thing
fighting.” Next to one student’s name on B.L.’s list C.C. wrote “refuse to kill”; she
assumed he meant that he would not kill that particular girl. A school administrator
testified that B.L. told her C.C. discussed wanting to get a gun for a school shooting.
On March 20, 2018, C.C. was in math class; while walking around the room
monitoring the students, C.C.’s math teacher saw that C.C. was not on the designated
math page. After C.C. denied he was on a different website, the teacher confiscated
C.C.’s school laptop, checked his search history, and discovered C.C. had conducted a
Google search for “school shooting simulator.” The school resource officer discovered
C.C.’s list, together with B.L.’s list of people she hated, and another note C.C. had
written that said, “Bye [sic] the time you find this it’s to [sic] late” in his backpack. C.C.
told the resource officer he was joking and had no intent to commit a school shooting.
3
C.C.’s math teacher was very concerned about the search for a “school shooting
simulator” given recent school shootings and the fact that the teacher’s name was on
C.C.’s list; on a previous occasion he had found C.C. searching for guns on his school
computer. The teacher suffered stress-related medical issues, and was afraid for the
safety of his students, himself, and his family.
The assistant school principal was also afraid after learning he was on C.C.’s list
with the directive “shoot him unrecognizable”; he was in charge of school discipline and
had dealt with C.C. on multiple occasions. He believed it was possible C.C. would carry
out a school shooting and was even more afraid after learning that firearms were found in
C.C.’s home after his arrest.
C.C.’s mother testified on his behalf. She conceded that five unsecured firearms
were found in their home but claimed only three were operative. According to his
mother, C.C. was unaware that the firearms were in the house on the day of his arrest.
Following the jurisdictional hearing, the juvenile court found both counts of the
petition true, with the true finding regarding the attempted criminal threat count specific
to G.O. At a subsequent dispositional hearing, C.C. was placed on probation. He timely
appealed.
A divided panel of this court initially concluded there was not sufficient evidence
to support the juvenile court’s true findings as to either charge. (People v. C.C. (May 17,
2022, C087924) [nonpub. opn.].) The dissent opined sufficient evidence supported the
threats charge. A different divided panel of this court granted the Attorney General’s
petition for rehearing on June 6, 2022, and invited the parties to submit filings addressing
the evidence supporting the true finding as to the criminal threats charge. The panel as
presently constituted was assigned to this case on July 8, 2022. We now conclude
sufficient evidence supports the threats charge.
4
DISCUSSION
I
First Amendment
C.C. first contends his words and conduct were protected by the First Amendment
to the United States Constitution, and as such were not subject to criminal sanctions. His
claim has been forfeited because the issue was not raised in juvenile court and thus has
not been preserved for review. As the Attorney General notes, “ ‘a constitutional right,’
or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the
failure to make timely assertion of the right before a tribunal having jurisdiction to
determine it.’ ” (United States v. Olano (1993) 507 U.S. 725, 731.) We decline to
consider this forfeited claim.
II
Attempted Criminal Threat
C.C. next contends that there is insufficient evidence to show he attempted to
criminally threaten G.O. (Pen. Code, § 422, subd. (a).)1 We disagree.
A. Legal Principles
When the sufficiency of the evidence is challenged on appeal, we apply the
familiar substantial evidence rule. “ ‘[W]e review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Cravens
(2012) 53 Cal.4th 500, 507.) “ ‘The test on appeal is whether substantial evidence
supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond
a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.)
1 Further undesignated statutory references are to the Penal Code.
5
“We must presume in support of the judgment the existence of every fact that the
trier of fact could reasonably deduce from the evidence.” (People v. Medina (2009)
46 Cal.4th 913, 919.) “ ‘If the circumstances reasonably justify the findings made by the
trier of fact, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.’ ” (People v. Kaufman
(2017) 17 Cal.App.5th 370, 381.) A reversal for insufficient evidence is unwarranted
“ ‘unless it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support [the adjudication].” ’ ” (People v. Cravens, supra, 53 Cal.4th at p.
508.)
A person may be found guilty of attempted criminal threat “whenever, acting with
the specific intent to commit the offense of criminal threat, the [person] performs an act
that goes beyond mere preparation and indicates that he or she is putting a plan into
action.” (People v. Toledo (2001) 26 Cal.4th 221, 230 (Toledo).) To prove the offense of
criminal threat 2 the prosecutor must establish: (1) that the defendant willfully threatened
to commit a crime which if committed would result in death or great bodily injury; (2) he
made the threat with the specific intent that the statement be taken as a threat, regardless
of whether he actually intended to carry out the threat; (3) the threatening statement, on
its face and under the circumstances in which it was made, was so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened a gravity of
2 Section 422 provides in relevant part: “Any person who willfully threatens to commit
a crime which will result in death or great bodily injury to another person, with the
specific intent that the statement, made verbally, in writing, or by means of an electronic
communication device, is to be taken as a threat, even if there is no intent of actually
carrying it out, which, on its face and under the circumstances in which it is made, is 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, and
thereby causes that person reasonably to be in sustained fear for his or her own safety or
for his or her immediate family’s safety, shall be punished by imprisonment in the county
jail not to exceed one year, or by imprisonment in the state prison.” (§ 422, subd. (a).)
6
purpose and an immediate prospect of execution of the threat; and (4) the threatening
statement caused the other person reasonably to be in sustained fear for their own safety.
(§ 422, subd. (a); Toledo, at pp. 227-228.)
For purposes of an attempted criminal threat offense, a person acts with the
specific intent to commit the offense of criminal threat “only if he or she specifically
intends to threaten to commit a crime resulting in death or great bodily injury with the
further intent that the threat be taken as a threat, under circumstances sufficient to convey
to the person threatened a gravity of purpose and an immediate prospect of execution so
as to reasonably cause the person to be in sustained fear for his or her own safety or for
his or her family’s safety.” (Toledo, supra, 26 Cal.4th at pp. 230-231.) The attempt
crime “requires not only proof of a subjective intent to threaten but also proof that the
intended threat under the circumstances was sufficient to cause a reasonable person to be
in sustained fear.” (People v. Chandler (2014) 60 Cal.4th 508, 511.)
B. Analysis
C.C. first contends his statements and gestures did not convey the requisite gravity
of purpose. We disagree. Although C.C. cites the lack of animosity or conflict between
him and G.O. to support his argument, the presence of these factors is not necessary to
show gravity of purpose. “ ‘The use of the word “so” [in § 422] 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.
Melhado (1998) 60 Cal.App.4th 1529, 1538.) “ ‘The four qualities are simply the factors
to be considered in determining whether a threat, considered together with its
surrounding circumstances, conveys those impressions to the victim.’ ” (Ibid.)
Here, viewing the evidence in the light most favorable to the judgment, a
reasonable trier of fact could find, based on all the surrounding circumstances, that C.C.’s
statements and actions (including pretending to handle a gun and showing off his “list”)
7
demonstrated the requisite unequivocality, unconditionality, immediacy and specificity so
as to convey to G.O. a gravity of purpose and immediate prospect of death or great bodily
injury. C.C. told G.O. twice in a 10-day period that he was going to shoot up their shared
English class, and said he had a gun at home to carry out the attack. He put their English
teacher’s name on his list of people he wanted to shoot and showed it to G.O. while
repeatedly talking about guns and school shootings. C.C. also made gun gestures with
his hands, pretended to shoot his classmates, and pretended to take something out of his
backpack--impliedly a gun--and throw his hands in G.O.’s direction, all while seated next
to her. These words and actions contributed to the gravity of purpose C.C.’s speech and
conduct conveyed to G.O.; this evidence was sufficient to make the requisite showing.
(See People v. Fierro (2010) 180 Cal.App.4th 1342, 1348 [the defendant’s proximity to
the victim and his threatening gesture of displaying a weapon added weight to his
words].)
C.C. next argues his statements and actions were neither sufficient to cause G.O.
reasonable sustained fear nor sufficiently probative of C.C.’s intent to cause such fear.
His arguments fail to persuade. The primary communications to G.O. supporting the
threats charge were the threats to shoot up their shared English class. As a member of
that class who sat next to C.C. daily, G.O. was frightened by the threats and victimized
by the statements. The juvenile court could reasonably find C.C. intended to instill fear
in G.O. by threatening to shoot up their shared, daily class, pantomiming shooting some
of the students in the class--not all of whom were on his list--with his hands, and
pretending to pull something out of his backpack and throw it at G.O. Having seen him
pretend to shoot the other students, and not knowing what he was pulling from his
backpack, G.O. could reasonably fear he was pulling out a gun to shoot her as well as the
others.
8
More specifically: G.O. testified she sat next to C.C. in English class for two
weeks, that he would specifically reference that class, that he (twice) told her she should
not come to school --not really a viable option for a high school freshman--because he
was going to “bring a gun” and “shoot up the class,” and that he discussed guns and
school shootings with her “every single day that [she] sat next to him. She specifically
discussed the fourth period English class where he sat next to her as the time period (two
weeks) where she was “really scared” and worried every day that he would hurt her. She
testified that “he would . . . get his backpack and pretend to pull something out” and he
would “look at . . . other kids in the class and pretend . . . he was shooting a gun.” This
would happen “randomly during class when he would be talking about it.” He also told
her he had a gun at home. He was keeping her scared and anxious about what he would
do, showing her a list and making gun gestures and pretending to pull out a gun while he
was next to her in the very class he said he would shoot up. And these tactics worked--
she was worried and scared.
When the entirety of the circumstances surrounding C.C.’s statements and conduct
are considered, it is readily apparent the juvenile court could reasonably infer that C.C.
specifically intended G.O. to take his statements about shootings and his list as threats,
and that her resulting fear when she did just that was reasonable.
C.C. relies on our decision in People v. Roles (2020) 44 Cal.App.5th 935, to
support his claim on appeal, but his reliance is misplaced. In Roles, the charged victim of
the threats at issue never heard the threats. (Id. at pp. 943-944.) Here, C.C. spoke
directly to and with the charged victim, G.O. In fact, he spoke to her, time after time,
over a sustained period, as her fear escalated. Similarly distinguishable is People v. Felix
(2001) 92 Cal.App.4th 905, another decision on which C.C. relies. In Felix, the
defendant told his therapist that he intended to kill his ex-girlfriend as soon as he was
released from custody and the therapist conveyed the threat to the victim. (Id. at p. 909.)
The resulting issue was whether the defendant intended his therapist to communicate the
9
threat to his ex-girlfriend. (Id. at p. 913.) Again, here, C.C. repeatedly made his threats
directly to G.O. while she continued to grow more afraid. Roles and Felix are not on
point; communication to a third party is not an issue here.
To the extent C.C. argues G.O.’s fear was unreasonable because she was not on
his list, this argument misses the mark. As we have detailed ante, C.C. specifically told
G.O. that he would shoot up their English class, not all of whom were on the list, and he
gestured as if he was contemplating doing just that. G.O.’s absence from the list does not
indicate her fear of harm was unreasonable, and it is certainly not evidence that C.C.
intended her no harm. Further, the fact that C.C. told G.O. not to come to school on two
occasions because he was going to shoot up their English class may be interpreted as
either an actual warning intended to protect G.O., or a feigned warning intended to scare
her, is not dispositive. It is evident the juvenile court interpreted these communications
as the latter and, under the governing standard of review, we must accept that
interpretation. To the extent the circumstances of C.C.’s actions and words can be
reconciled with a contrary finding, reversal is not warranted under the governing standard
of review. (People v. Kaufman, supra, 17 Cal.App.5th at pp. 380-381.)
The juvenile court’s implicit finding that C.C. specifically intended to threaten
G.O. is further supported when C.C.’s statements and conduct are considered against the
wider backdrop of recent school shootings, of which C.C. and G.O. were likely aware.
(See In re George T. (2004) 33 Cal.4th 620, 640 (conc. opn. of Baxter, J.) [“[i]t is safe to
say that fears arising from a raft of high school shooting rampages . . . are prevalent
among American high school students”].) In fact, the student shooting in Parkland,
Florida, that killed 17 people occurred in February 2018--during the precise time span
covered by the petition for the attempted criminal threat offense. (See History.com
Editors, Teen gunman kills 17, injures 17 at Parkland, Florida high school
[as of February 11, 2022], archived at < https://perma.cc/3TNM-
V5CT>.)
G.O. testified that she was “really scared “for a “couple of weeks” based on C.C.’s
conduct toward her and his repeated statements to her (as opposed to, as in Roles and
Felix, conduct toward and statements to someone other than the charged victim). Such
evidence was sufficient to show that C.C.’s actions created a sustained fear in G.O. that
was certainly more than momentary, fleeting, or transitory. (People v. Fierro, supra,
180 Cal.App.4th at p. 1349 [“ ‘Sustained fear’ refers to a state of mind” “it means a
period of time that extends beyond what is momentary, fleeting or transitory.”) The
evidence that C.C. talked with G.O. about wanting to shoot people in their English class
every day for two weeks further supports a finding that he intended to put G.O. in a
sustained state of fear, notwithstanding his argument to the contrary.
It is also clear that G.O.’s fear was reasonable under the circumstances. While it is
true that some of her fellow students were not afraid, they were not subjected to C.C.’s
talk about shooting up their class every day for two weeks while he pretended to shoot
students and access weaponry. Moreover, both C.C.’s math teacher and school principal
testified they were fearful of C.C.’s statements and conduct, and the assistant principal
said he thought it was possible C.C. was capable of carrying out such an attack. Given
the totality of the circumstances, including the reality of other school shootings, G.O.’s
sustained fear was reasonable.
When viewed in the light most favorable to the judgment, the entire record
contains substantial evidence from which the juvenile court could find beyond a
reasonable doubt that C.C. attempted to criminally threaten G.O.
III
Unauthorized Access of Computer
C.C. contends insufficient evidence shows he used the school computer without
permission. We agree.
11
The juvenile court found C.C. guilty of computer access and fraud based on
section 502, subdivision (c)(3), which defines a public offense where a person
“[k]nowingly and without permission uses or causes to be used computer services.”
(§ 502, subd. (c)(3).) “ ‘Computer services’ includes, but is not limited, to computer
time, data processing, or storage functions, internet services, electronic mail services,
electronic message services, or other uses of a computer, computer system, or computer
network.” (§ 502, subd. (b)(4).)
While the statute does not define the phrase “without permission,” some courts
have found that “[i]individuals may only be subjected to liability for acting ‘without
permission’ under Section 502 if they ‘access[] or us[e] a computer, computer network,
or website in a manner that overcomes technical or code-based barriers.’ ” (In re
Facebook Privacy Litigation (N.D.Cal. 2011) 791 F.Supp.2d 705, 715; NovelPoster v.
Javitch Canfield Group (N.D.Cal. 2014) 140 F.Supp.3d 938, 950 [same].) Because the
record is devoid of any evidence showing C.C. overcame any technical or code-based
barriers when he conducted a Google search for a “school shooting simulator” during his
math class, he argues that the evidence was insufficient to prove he used the school’s
computer services without permission.
The Attorney General contends the phrase “without permission” should be
interpreted more broadly than in In re Facebook Privacy Litigation, essentially arguing
that whenever a student is authorized to use a school computer, but somehow violates an
expected term of use--here, the math teacher’s direction to access a math program rather
than Google at that specific time--the student is acting “without permission” under
section 502 and may be properly held criminally liable.
To resolve the dispute, we must apply basic rules of statutory construction.
(People v. Childs (2013) 220 Cal.App.4th 1079, 1100-1101 [interpreting the language of
§ 502, subd. (c)(5)].) “The overriding goal of statutory construction is to ascertain the
legislative intent behind the statute, in order to give effect to that intent.” (Id. at p. 1101.)
12
Because the text of a statute is the best indicator of legislative intent, “we begin with the
plain, commonsense meaning of the language that the Legislature used. If that language
is unambiguous, then the plain meaning of the statute controls.” (Ibid.) If, however, the
statutory language is ambiguous and permits more than one reasonable interpretation,
then we may resort to extrinsic sources, including the ostensible objects to be achieved or
evils to be remedied, legislative history, and public policy. (Day v. City of Fontana
(2001) 25 Cal.4th 268, 272; People v. Connor (2004) 115 Cal.App.4th 669, 678.) “In
such circumstances, we ‘ “select the construction that comports most closely with the
apparent intent of the Legislature, with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.” ’ ” (Day, at p. 272.)
On its face, the term “without permission” is ambiguous; it could have more
than one reasonable meaning. C.C. did have permission, as a student, to use the school
computer during math class. But he did not have specific permission at the relevant time
to use the computer for non-school-related activities. He exceeded the scope of his
permission without breaching any barriers. We thus turn to extrinsic aids to determine
whether the conduct at issue here falls within the scope of the statute.
Subdivision (a) of section 502 declares the Legislature’s intent in enacting the
statute; it was intended “to expand the degree of protection afforded to individuals,
businesses, and governmental agencies from tampering, interference, damage, and
unauthorized access to lawfully created computer data and computer systems.” (§ 502,
subd. (a).) According to the Legislature, “the proliferation of computer technology has
resulted in a concomitant proliferation of computer crime and other forms of
unauthorized access to computers, computer systems, and computer data.” (Ibid.)
Protecting the integrity of all types and forms of lawfully created computers, computer
systems, and computer data, the Legislature declared, was vital to protect the privacy of
individuals as well as the well-being of financial institutions, business concerns,
13
governmental agencies and others within the state that use these computers, computer
systems, and data. (Ibid.)
The primary thrust of the statute is to deter and punish those who access a
computer system without permission in order to obtain or alter the information contained
therein. (See People v. Gentry (1991) 234 Cal.App.3d 131, 141, fn. 8.) Here, C.C.
merely exceeded the scope of his permission, i.e. misused a computer that he was
permitted to use to access and educational site, by accessing various websites through
Google searches. While not directly on point, Chrisman v. City of Los Angeles (2007)
155 Cal.App.4th 29 is instructive. In Chrisman, a police officer used his work computer
for non-duty-related inquiries, searching for celebrities, his girlfriend and her
acquaintances, and himself. (Id. at pp. 32, 35-37.) The court found that the officer did
not violate section 502, subdivision (c)(7), which prohibited a person from knowingly
and without permission accessing or causing to be accessed any computer, computer
system, or computer network. (Chrisman, at pp. 35-37.) Although Chrisman focused on
the statutory definition of “access” rather than “without permission,” the case
demonstrates that merely exceeding the scope of an otherwise proper and permitted use is
not what the Legislature sought to prohibit when it enacted section 502.
We also note that in the employment context, “the Legislature deemed some
violations of subdivision (c)(3) to be so trivial or de minimis as not to warrant criminal
treatment, namely computer use, though outside the scope of employment, that either
does not injure the employer or does not use [$250] worth of supplies or services.
Possible examples of this would be an employee who ‘surfs’ the Internet when he or she
has been told not to, or, as the prosecutor suggested, an employee who plays a computer
game.” (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1442.)
We conclude insufficient evidence supports count 2 and reverse the true finding
thereon.
14
DISPOSITION
The true finding as to count 2 (§ 502, subd. (c)(3)) is reversed. The judgment is
otherwise affirmed.
/s/
Duarte, J.
I concur:
/s/
Hoch, J.
15
HULL, J., Concurring and Dissenting:
I concur in the majority opinion Parts I and III; as to Part II, I dissent.
The majority and I agree on two things, I think. First, as a society, and with
justification, we are deeply troubled and saddened by the continuing incidents of
shootings and mass murder at schools and other places undertaken in our recent history
by young men. Second, the evidence in this matter strongly suggests that C.C., at the
time of the actions described in the majority opinion, was a troubled teenager who earned
the attention of school and other authorities and who required psychological counseling
and other appropriate services.
Even so, the only question before us is whether the evidence presented during the
trial of this matter was sufficient to establish that C.C. committed a crime, specifically
that he attempted to criminally threaten G.O., a classmate, in violation of Penal Code
section 422. (Statutory section citations that follow are to the Penal Code unless
otherwise stated.)
Section 422 provides:
“Any person who willfully threatens to commit a crime which will result in death
or great bodily injury to another person, with the specific intent that the statement, made
verbally, in writing, or by means of an electronic communication device, is to be taken as
a threat, even if there is no intent of actually carrying it out, which, on its face and under
the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in
sustained fear for his or her own safety or for his or her immediate family’s safety, shall
be punished by imprisonment in the county jail not to exceed one year, or by
imprisonment in the state prison.”
“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
1
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 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. [Citation omitted.]” (People v. Toledo (2001) 26
Cal.4th 221, 227-228 (Toledo).)
“[T]here is a crime of attempted criminal threat in [California], defined through
the interplay of section 422 and the statutory provisions relating to attempts. As we have
seen, section 664, by its terms, provides that ‘[e]very person who attempts to commit any
crime’ (italics added) is subject to the criminal punishment set forth in that provision, and
this language on its face thus includes those who attempt to commit the crime of criminal
threat set forth in section 422.
“Under the provisions of section 21a, a defendant properly may be found guilty of
attempted criminal threat whenever, acting with the specific intent to commit the offense
of criminal threat, the defendant performs an act that goes beyond mere preparation and
indicates that he or she is putting a plan into action. Furthermore, in view of the elements
of the offense of criminal threat, a defendant acts with the specific intent to commit the
offense of criminal threat only if he or she specifically intends to threaten to commit a
crime resulting in death or great bodily injury with the further intent that the threat be
taken as a threat, under circumstances sufficient to convey to the person threatened a
gravity of purpose and an immediate prospect of execution so as to reasonably cause the
2
person to be in sustained fear for his or her own safety or for his or her family’s safety.”
(Toledo, supra, 26 Cal 4th 221, 230-231.)
“[N]either the criminal threat statute (§ 422) nor the criminal attempt statutes (§§
21a, 664) unambiguously indicate that an attempted criminal threat requires only a
subjective intent to threaten, with no objective component. To avoid substantial First
Amendment concerns associated with criminalizing speech, we construe the offense of
attempted criminal threat to require proof that the defendant had a subjective intent to
threaten and that the intended threat under the circumstances was sufficient to cause a
reasonable person to be in sustained fear. Accordingly, when a defendant is charged with
attempted criminal threat, the jury must be instructed that the offense requires not only
that the defendant have an intent to threaten but also that the intended threat be sufficient
under the circumstances to cause a reasonable person to be in sustained fear.” (People v.
Chandler (2014) 60 Cal.4th 508, 525; italics omitted.)
Thus, placed in context here given the evidence, to sustain the trial court’s finding
that C.C. attempted to criminally threaten G.O., the evidence must be sufficient to show
that: (1) C.C. willfully threatened to commit a crime which would have resulted in the
death or great bodily injury of G.O.; (2) that C.C. made the threat to G.O. with the
specific intent that the statement to G.O. was to be taken by her as a threat to her; (3)
C.C.’s threat to G.O. was on its face and under the circumstances in which it was made so
unequivocal, unconditional, immediate and specific as to convey to G.O. a gravity of
purpose and an immediate prospect of the execution of the threat to G.O.; (4) that the
threat actually caused G.O. to be in sustained fear for her own safety; and (5) that G.O.’s
fears were reasonable under the circumstances.
In addition, given the fact that C.C. was found guilty of an attempted criminal
threat, the evidence must show that defendant not only have the specific intent to threaten
G.O. but also that the intended threat be sufficient under the circumstances to cause a
reasonable person to be in sustained fear.
3
The majority makes much of what C.C. did and threatened as it related to his
fellow students and the school faculty. That was serious business. But the focus of our
inquiry must look to his actions and statements to G.O. and her reaction to those matters
because C.C. was found guilty of making an attempted criminal threat only to G.O. and
not to others.
At trial, G.O. testified that at the time of the events that she described, she was a
ninth grade student in high school. She was a student in an English class during two
weeks of which she sat next to C.C. In pertinent part her testimony was as follows:
Direct Examination
“Q. . . . When you sat next to each other in class, did you ever talk to [C.C.]?
“A. Yeah, I did.
“Q. Did you ever hear [C.C.] talking about guns?
“A. Yes.
“Q. What did he say?
“A. He would say stuff like: ‘What if I brought a gun to school and shot up the
certain class like English [sic] and the teacher that was the teacher of that class?’
“Q. Mr. (O.)?
“A. Yeah, and he would tell me ‘Don’t come to school this day because I’m
going to shoot up the class.’ That’s what he would say. [¶] . . . [¶]
“Q. How often did he talk to you about guns and school shootings?
“A. Every single day that I sat next to him.
“Q. Were you friends outside of English?
“A. Not really. Like I knew of him, but I wasn’t friends with him.
“Q. Had you had a conversation with him before you had him in your English
class?
“A. No.
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“Q. How often did he tell you don’t come to school on a specific day because
he is going to shoot the class?
“A. He told me that like twice.
“Q. Did you ever see him with any sort of list?
“A. Yes, I did.
“Q. Would you tell me about that?
“A. He pulled out a list out of his backpack. It said ‘to do list’ on it. He told
me those were the people that he wanted to shoot. [¶] . . . [¶]
“Q. I’m going to show you Exhibit 1 for identification. I’d ask that you look at
it and then look up when you have had a chance to look at it. Do you recognize that
document?
“A. Yeah.
“Q. How do you recognize it?
“A. He showed me. [¶] . . . [¶]
“Q. Did he say anything when he showed you the list?
“A. He just told - -I asked him what it was. He told me it was the list of people
that he didn’t like that had done him wrong or something and that he wanted to shoot.
“Q. Now, did you read the list and look at the names on the list at the time he
showed you?
“A. Yeah.
“Q. How did that make you feel?
“A. Um, it kind of scared me, but I thought that he was like joking about it. I
didn’t think he was serious and yeah.
“Q. You said that he talked about specifically shooting up your English class?
“A. Yeah. [¶] . . . [¶]
“Q. . . . How did that make you feel?
“A. That really scared me actually.
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“Q. And can you describe that a little bit more? Were you worried - -
“A. I was worried about that class. Like when he would walk in, he walked in
the classroom and come [sic] sit by me because I’m right next to him.
“Q. What were you worried about?
“A. I was worried that he was going to hurt me.
“Q. How long do you think you were worried about that?
“A. A couple weeks. I’m going to say like two weeks.
“Q. You only sat next to him for a couple weeks?
“A. Yeah.
“Q. Is that when you were worried?
“A. Yes.
“Q. You said he talked to you about it every day that you saw him?
“A. Yes.
“Q. Is that every day for two weeks, like ten days in classes about?
“A. Yeah, about. [¶] . . . [¶]
“Q. Was there anything else about what he was doing or saying that worried
you?
“A. Yeah, he would like get his backpack and pretend like he was going to pull
something out and throw it towards me and would like scare me for just a minute.
“Q. Was that scary because of what he did or was it scary because [of] what he
did plus the threats?
“A. Both.
“Q. So in addition to pretending to throw something at you, was anything else
scary to you?
“A. He would look at like other kids in class and he would like do gun symbols.
He would pretend like he was shooting a gun. [¶] . . . [¶]
“Q. When would he do that?
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“A. Just randomly during class when he would be talking about it.
“Q. When he would be talking about what?
“A. Bringing a gun and shooting certain people.
“Q. Did he ever talk to you about actually having a gun?
“A. He said that he owned one at home, that his family had one.
“Q. Did he talk any more about having access in any way to guns?
“A. Not really, only that he had one at home. That’s all he said.
“Q. And over the two week period, were you scared the same on the first day as
the last day or can you describe that?
“A. I got more scared like when he would talk about it so much. At first I was
not scared because I thought he was kidding. Then I started to get scared like at the end.”
Cross Examination
“Q. At some point [C.C.] stopped going to school with you, right?
“A. Yes.
“Q. Would that have been mid to late March?
“A. I think so.
“Q. Okay. And today is not the first time you talked about this case, right?
“A. No.
“Q. On a previous occasion you spoke with an Officer [K.]?
“A. Yeah.
“Q. And that wasn’t the day that [C.C.] stopped going to your school, right?
“A. No, it wasn’t. [¶] . . . [¶]
“Q. And it’s true that you told him that you were kind of scared?
“A. Yes.
“Q. And it’s true that you told him you had not reported anything that you told
us today to any kind of teacher?
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“A. Yes.
“Q. You hadn’t reported it to any kind of staff member?
“A. Yes.
“Q. Okay. Today you testified about you remember [C.C.] having said
something about having a gun at home or access to a gun, something to that effect, right?
“A. Yeah.
“Q. Is it true that you indicated that you believed he had said that he had access
to a gun?
“A. I know he said that.
“Q. You know he said that?
“A. Yeah.
“Q. All right. You don’t know for sure that he did, right?
“A. He did. I remember clearly he said that.
“Q. Maybe I’m not being clear. You testified that you are sure that he told you
that about a gun at home.
“A. Yes. Yes.
“Q. You can’t confirm for this Court that he had a gun at home, right?
“A. No, I can’t. [¶] . . . [¶]
“Q. It’s true you never told Officer [K.] anything about ‘Don’t come to school
on this day because I’m going to shoot up the school’?
“A. I didn’t tell him that.
Redirect Examination
“Q. [G.O.] who did you tell?
“A. I told my mom and my sister.
“Q. Why did you tell them?
8
“A. Because I was kind of concerned about it. And yeah, I didn’t want to tell
the teacher. I don’t know why.
“Q. And was your – in your conversation with your mom, was your mom going
to report it?
“A. I don’t think my mom was going to report it, but my sister said that she
was. [¶] . . . [¶]
“Q. I wanted to ask you about [C.C.] telling you not to come to school on a
certain day. You said that happened about twice, is that right?
“A. Yes.
“Q. And did that topic come up with Officer [K.]?
“A. No.
“Q. And if he asked you about it, and you remembered – if you thought you
were answering his question would you have told him.
“A. Yes.”
At this point, G.O. was excused as a witness and did not testify further.
The “to do” list to which G.O. testified did not have G.O.’s name on it.
I have set forth G.O.’s testimony at length as much for what she said as for what
she did not say. In my view, she testified truthfully and credibly.
It is important again to note that C.C. was not convicted of making criminal threats
to members of the student body other than G.O. or to members of the faculty; he was
found guilty only of making a criminal threat to G.O. and it is the evidence of that alleged
threat that we are constrained to consider.
Returning to the elements of the crime of making a criminal threat, the most
significant failure of the evidence is the requirement that the evidence show that C.C.
specifically intended to threaten G.O. I cannot find sufficient evidence that C.C.
harbored that specific intent.
9
To the contrary, read objectively, the evidence not only failed to demonstrate
beyond a reasonable doubt that C.C. intended to threaten G.O., if anything it
demonstrated that he made an effort to assure her she was not one of those he might have
been threatening.
Thus, C.C. told her he would tell her when not to come to school so she would
remain safe. The “to do” list did not include G.O.’s name. There is no evidence that the
hand gestures that he made as if he were shooting a gun were directed at G.O. G.O.’s
testimony on this point was, “He would look at like other kids in class and he would like
do gun symbols. He would pretend like he was shooting a gun.” Tellingly, there was no
evidence to show (and G.O. did not testify) that C.C. made his hand gesture toward her.
Further, G.O. testified that C.C. would talk about “Bringing a gun [to school] and
shooting certain people.” There is no evidence that the “certain people” he spoke of
included G.O. and his words were self-limiting in that he was saying that he was only
intending to shoot those people. G.O. was not one of them.
The evidence is wanting in other respects although perhaps not as compelling as
the lack of evidence that C.C. held a specific intent to threaten G.O.
As noted earlier, to make out the crime of criminal threat it must be proven 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” G.O. a gravity of
purpose and an immediate prospect of execution of the threat. I can find no evidence that
C.C. unequivocally, unconditionally, immediately threatened G.O. with a gravity of
purpose and an immediate prospect of execution of a threat to her. One must wonder
how making an unconfirmed claim to having access to a gun in one’s home without more
could amount to an “immediate” and “unequivocal” prospect of execution of a threat to
G.O. given all of the circumstances here.
I do not take lightly the situation we have here where an apparently troubled
young man talks of shooting and killing his school mates and members of his faculty.
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Recent and tragic events have taught us without doubt that such talk and actions must be
taken very seriously and addressed appropriately. We cannot afford to overlook such
conduct.
But an appropriate response cannot include sustaining a criminal conviction
that the evidence does not support. We must judge the law and the evidence as it
is and, as it is here, the evidence is insufficient to prove beyond a reasonable doubt
that C.C. specifically intended to criminally threaten G.O. thus violating section
422.
/s/
HULL, Acting P.J.
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