In re D.R. CA1/5 ( 2020 )

Filed 11/10/20 In re D.R. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re D.R., a Person Coming Under
the Juvenile Court Law. A156827
___________________________________
(Contra Costa County Super. Ct.
THE PEOPLE, No. J1800850)
Plaintiff and Respondent,
v.
D.R.,
Defendant and Appellant.
Thirteen-year-old D.R. hacked into a classmate’s Instagram account
and posted that he was “ ‘going to shoot up’ ” his middle school the next day
with his dad’s gun. The juvenile court determined D.R. appreciated the
wrongfulness of his conduct (Pen. Code, § 26).1 The court found true
allegations that D.R. made criminal threats (§ 422), and committed false
personation (§ 529) and identity theft (§ 530.5). It designated the offenses
misdemeanors, declared D.R. a ward of the court, and placed him on
probation with various conditions, including that he submit to drug and
alcohol testing.
1 Undesignated statutory references are to the Penal Code.
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D.R. appeals. He contends: (1) the court’s section 26 finding is not
supported by substantial evidence; (2) the prosecution failed to prove he
intended that the Instagram post be taken as a threat; and (3) the court erred
by imposing the drug and alcohol testing condition.
We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Jurisdictional Hearing
In the late summer of 2018, D.R.—then 13 years and four months
old—was in eighth grade at a middle school in Contra Costa County. D.R.
is “very smart.” He has no trouble learning and retaining information, but
he suffers from attention deficit hyperactivity disorder. He takes medication
to improve his impulse control. D.R.’s parents taught him the difference
between right and wrong, but he sometimes has difficulty stopping himself
from doing things he knows are wrong.
In mid-August, an assignment in D.R.’s history class was to create a
cover page for an upcoming lesson on “America[.]” The history teacher
overheard D.R. tell another student he was going to “ ‘draw a white kid
shooting up a school.’ ” The teacher notified the principal, who discussed the
incident with D.R. When the principal asked D.R. whether he made the
comment, D.R. responded: “ ‘did you hear me . . . did you hear it?’ ”
The principal told D.R. “that kind of talk [was] not appropriate,” that it
would “frighten” people, and that D.R. needed to “be careful” about his
comments. The principal explained that making a threat can have “serious
consequences” and can scare people. D.R. appeared to understand what the
principal was saying: that it was inappropriate to draw a picture of a school
shooting. The principal called D.R.’s parents.
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That evening, D.R.’s stepmother and father talked with D.R. They told
him that comments about “shooting up a school” were “inappropriate” and
“reminded” D.R. that school shootings had happened. D.R. told his parents it
was “ ‘obviously a joke.’ ” In response, D.R.’s stepmother told D.R. not to
“make pictures like that” and not to “joke like that, that it’s inappropriate,
that people can take it seriously.”
D.R.’s stepmother also said something to the effect of “you never, ever
make jokes about shooting up a school” because “people think that it’s
serious,” that it “could possibly happen, and it scares people.” D.R. did not
always understand that what he thought was funny was not “funny to other
people,” so his stepmother wanted to make D.R. “understand the appropriate
way to interact” with his classmates. D.R.’s father said: “[Y]ou can’t make
comments” about school shootings “because . . . people don’t know that you’re
joking.” D.R. appeared to understand what his parents told him.
On September 16, a threat of a shooting at the nearby high school
attended by D.R.’s sister caused the closure of the school. D.R. was aware the
students there had gotten the day off. His stepmother described that
incident: “the kids were all getting to miss school, and they were running
around [town] and having fun.”
The next day, D.R. logged into a classmate’s Instagram account without
permission and posted the following message: “I am going to shoot up [the
school] tmr with my dads gun @ 6th Period.” When the classmate discovered
what happened, his family called the police, who notified the principal. The
principal took the threat seriously: she contacted the district superintendent,
notified parents and staff a threat had been made, and asked additional
police officers to patrol the campus the following day.
When D.R.’s parents received the threat notification, they talked with
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D.R. about the importance of not “doing something like this.” But rather
than admitting he had posted the threat, D.R. said: “wow, I wonder if they
already got him in custody.” About a third of the middle school’s students did
not go to school the next day.
D.R. did go to school. As he approached the entrance, he motioned like
“he had something in his waistband.” The police searched him in the
principal’s office. The search revealed no weapons, but D.R. was arrested
after an investigator determined he had accessed the classmate’s Instagram
account without permission. When police told D.R. he had been arrested for
threatening the school, D.R. denied generating the Instagram post; he
claimed he took a screenshot of the original post and re-posted it.
B.
Jurisdictional Findings
The court found by clear and convincing evidence D.R. “knew what he
was doing was wrong” under section 26. It acknowledged D.R. “may have
impulse control issues” but concluded his “inability to control his impulses
doesn’t mean that he doesn’t know they’re wrong.” The court noted the
principal told D.R. that joking about a school shooting was “not appropriate.
And [D.R.] appeared to understand, and his parents taught him the
difference between right and wrong. . . . [H]e does not have a memory
problem. . . . He’s smart. . . . [H]e was specifically told not to make jokes
about shooting up a school, and he appeared to understand.”
As the court explained, the fact that D.R. could not “resist doesn’t mean
that he didn’t know it was the wrong thing to do.” The court also noted
D.R.’s age and experience supported the section 26 finding. D.R. was “close
to 14 years old,” and when confronted with the comment about the drawing,
“he didn’t deny . . . that it was wrong. He said, you didn’t hear me say
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that. . . . That’s a guilty conscience. That’s somebody trying to absolve
themselves of responsibility.”
Next, the court found the allegations true beyond a reasonable doubt.
As relevant here, the court determined D.R. had the specific intent that the
Instagram post “be taken as a threat, and it was unequivocal, unconditional,
immediate and specific. It said when. It said where. It said how. And it was
immediate[:] the next day. We know there was an immediate prospect of
execution. That’s what was communicated. And it did in fact cause students
to not show up at school. So we know that it did cause people reasonably to
be in fear [for] their own safety.”
C.
Disposition
The court designated the offenses misdemeanors, declared D.R. a ward
of the court, and placed him on probation. Probation recommended requiring
D.R. to submit to drug and alcohol testing. The probation report noted D.R.
had smoked marijuana “for a couple months” when he was 12. D.R.’s parents
voiced support for drug testing. Defense counsel, however, objected to the
condition on the grounds it lacked a “reasonable relationship to the
underlying offense.”
The court ordered D.R. to submit to drug and alcohol testing as a
condition of probation. It explained D.R. needed support “with knowing
what’s appropriate,” and that “making sure that he understands that he can’t
use any drugs or alcohol and he’s subject to testing will help” him understand
“where the lines are.”
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DISCUSSION
I.
Substantial Evidence Supports the Section 26 Finding
D.R. challenges the sufficiency of the evidence supporting the court’s
finding that he appreciated the wrongfulness of his conduct under section 26.
A. General Principles
“[S]ection 26, which applies in juvenile wardship proceedings, creates a
presumption that a child under the age of 14 is incapable of committing a
crime. [Citation.] To overcome this presumption, the prosecution must show
by clear and convincing evidence that the child understood the wrongfulness
of the charged act at the time of its commission. [Citations.] . . . [S]ection 26
‘embodies a venerable truth . . . that a young child cannot be held to the same
standard of criminal responsibility as his . . . more experienced elders.’ ” (In
re J.E. (2020) 54 Cal. App. 5th 309, 313 (J.E.).)
“On appeal, we review the juvenile court’s ruling under . . . section 26
to determine if it is supported by substantial evidence. [Citation.]
Substantial evidence is ‘evidence that is reasonable, credible, and of solid
value—from which a reasonable trier of fact could have made the requisite
finding under the governing standard of proof.’ [Citation.] Under this
standard ‘we review the record in the light most favorable to the court’s
determinations and draw all reasonable inferences from the evidence to
support the findings and orders.’ [Citation.] ‘We do not reweigh the evidence
or exercise independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.’ [Citation.] ‘[T]he
trial court’s ruling must be upheld if there is any basis in the record to
sustain it.’ ” (J.E., supra, 54 Cal.App.5th at pp. 313–314.)
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“Courts consider the age, experience, knowledge and conduct of a minor
to determine whether [he] understood the wrongfulness of [his] conduct.
[Citation.] Knowledge of wrongfulness cannot be inferred from the offense
itself, but the court may consider ‘the attendant circumstances of the crime,
such as its preparation, the particular method of its commission, and its
concealment.’ [Citation.] The closer a child is to the age of 14, the more
likely [he] is to appreciate the wrongfulness of [his] conduct.” (J.E., supra,
54 Cal.App.5th at p. 314.)
B. Substantial Evidence Supports the Determination that D.R.
Knew His Conduct Was Wrongful
Applying these principles, we conclude the court’s section 26 finding is
supported by substantial evidence. D.R. was 13 years and four months old
when he threatened to “ ‘shoot up’ ” his school. The closer the child is to age
14, “ ‘the more likely it is that [he] appreciates the wrongfulness of [his]
acts.’ ” (People v. Lewis (2001) 26 Cal. 4th 334, 378.) Courts have upheld
section 26 findings for children the same age—or younger—than D.R. (In re
Paul C. (1990) 221 Cal. App. 3d 43, 53 [13 years and 4 months]; In re Jerry M.
(1997) 59 Cal. App. 4th 289, 298 [11 years and 2 months].)
D.R.’s knowledge and experience support the court’s conclusion that he
appreciated the wrongfulness of his conduct. D.R. is “very smart” and has no
difficulty learning or retaining information. He has an impulse control issue,
but he does not suffer from a “diminished . . . mental capacity for [his] age.”
(J.E., supra, 54 Cal.App.5th at p. 314.) D.R.’s parents taught him the
difference between right and wrong. They also told D.R. it was never
appropriate to joke about a school shooting, and they explained why: because
it would scare people. The school principal communicated similar
information. D.R. appeared to understand what these three adults told him.
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(In re Jerry M., supra, 59 Cal.App.4th at p. 298 [upholding section 26 finding
where the minor’s “mother had told him [the conduct] was wrong” and “he
appeared to understand”]; J.E., at p. 315 [evidence of prior school discipline
supported determination the minor knew “disrespectful and violent conduct”
toward authority figures was wrong].)
Finally, the circumstances surrounding the offenses—the “preparation
for” and a “cover up”—support the court’s section 26 finding. (J.E., supra,
54 Cal.App.5th at p. 316.) D.R. posted the threat on another person’s social
media account in an effort to avoid detection; when his parents received the
threat notification, D.R. pretended to wonder whether the culprit had been
arrested rather than admitting he had posted the threat as a joke. Indeed,
D.R.’s notion that the post might result in arrest is extraordinarily probative
of his knowledge of its wrongfulness. And when he was arrested, D.R.
attempted to “minimize” his actions. (In re Paul C., supra, 221 Cal.App.3d at
p. 53; People v. Lewis, supra, 26 Cal.4th at p. 379 [the minor’s evasive actions
after the crime supported section 26 finding].) Together, this evidence amply
supports the court’s determination that D.R. knew it was wrong to threaten a
mass shooting at his school.
In urging us to reach a contrary conclusion, D.R. recites evidence
that he claims shows the Instagram post was a joke and that he did not
understand a joke could be wrong. This strategy is not persuasive because
we cannot reweigh the evidence or substitute our judgment for that of
the trial court. The question before us is whether there is reasonable
and credible evidence from which the lower court could find, by clear
and convincing evidence, that D.R. appreciated it was wrong to
surreptitiously post a death threat on a classmate’s social media. (J.E.,
supra, 54 Cal.App.5th at p. 313.) As discussed above, the answer is yes.
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Also unavailing is D.R.’s claim that the prosecution failed to establish
he appreciated the wrongfulness of posting the message on his classmate’s
Instagram account—the basis of the second and third counts. The evidence
supporting the finding that D.R. knew it was wrong to make a death threat
also supports the conclusion that D.R. knew it was wrong to post that
threat on his classmate’s social media account. (In re Harold M. (1978)
78 Cal. App. 3d 380, 388–389 [where minor understood it was wrong to break
into the victim’s car, “he also understood that planning with others to break
into the vehicle . . . was wrong”].) To the extent D.R. suggests the prosecution
was required to establish he knew his conduct was criminal, he cites no
authority; indeed, authority is to the contrary. (Id. at p. 388 [minor did not
need to appreciate “the elements of a conspiracy” to know it was wrong to
agree to burglarize a car with two other minors].)
II.
Substantial Evidence Supports the Criminal
Threat Adjudication
Next, D.R. contends the prosecution failed to prove he intended the
Instagram post “to be perceived as a threat.”
A. General Principles
To establish a criminal threat in violation of section 422, the
“prosecution must prove ‘(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,
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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.’ ” (In re George T. (2004) 33 Cal. 4th 620, 630 (George T.).)
Our focus is on the second element: whether D.R. made the threat
“ ‘with the specific intent that the statement . . . be taken as a threat.’ ”
(George T., supra, 33 Cal.4th at p. 630.) As stated above, “section 422 does
not require an intent to actually carry out the threatened crime. [Citation.]
Instead, the defendant must intend for the victim to receive and understand
the threat, and the threat must be such that it would cause a reasonable
person to fear for his or her safety.” (People v. Wilson (2010) 186 Cal. App. 4th
789, 806.) “[T]he determination whether a defendant intended his words to
be taken as a threat . . . can be based on all the surrounding circumstances
and not just on the words alone.” (People v. Mendoza (1997) 59 Cal. App. 4th
1333, 1340.)
Under the traditional standard of review for assessing sufficiency of the
evidence, an appellate court views the evidence in the light most favorable to
the judgment and presumes all reasonable factual inferences were drawn in
its favor. (People v. Staten (2000) 24 Cal. 4th 434, 460.) D.R. urges us to
apply a heightened standard of review because “a section 422 violation raises
First Amendment concerns.” According to D.R., we should undertake
an independent review of the evidence, as our Supreme Court did
in George T., a case involving a criminal threat adjudication against a minor
who disseminated a poem with arguable expressive value. (George T.,
supra, 33 Cal.4th at pp. 635–636.)
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George T. held reviewing courts should “make an independent
examination of the record . . . when a defendant raises a plausible First
Amendment defense to ensure that a speaker’s free speech rights have not
been infringed by a trier of fact’s determination that the communication at
issue constitutes a criminal threat.” (George T., supra, 33 Cal.4th at p. 632.)
But as George T. explained, “[i]ndependent review is not the equivalent of de
novo review ‘in which a reviewing court makes an original appraisal of all the
evidence to decide whether or not it believes’ the outcome should have been
different. [Citation.] Because the trier of fact is in a superior position to
observe the demeanor of witnesses, credibility determinations are not subject
to independent review, nor are findings of fact that are not relevant to the
First Amendment issue. [Citations.] . . . [U]nder the substantial evidence
standard, the question is whether any rational trier of fact could find the
legal elements satisfied beyond a reasonable doubt, whereas under
independent review, an appellate court exercises its independent judgment to
determine whether the facts satisfy the rule of law.” (Id. at p. 634.)
The George T. court determined the minor’s poem “was not an
unequivocal threat” and, as a result, did not consider whether the minor
“harbor[ed] the specific intent to threaten the students, as required by section
422.” (George T, supra, 33 Cal.4th at p. 639.) At least one court has
suggested that even “if independent review is appropriate, it is applicable
only to issues that could implicate the First Amendment, such as the content
of [the] communications; sufficiency of the evidence to support the jury’s
finding on intent is determined according to the usual substantial evidence
standard.” (People v. Lopez (2015) 240 Cal. App. 4th 436, 447.) We need not
decide which standard applies to the intent element because “we would
affirm under either one.” (Id. at p. 447.)
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B. There is Sufficient Evidence D.R. Had the Specific Intent the
Instagram Post be Taken as a Threat
Our independent review of the record establishes D.R. intended readers
to perceive the Instagram post as a threat. Given the prevalence of school
shootings, a threat of a mass shooting—particularly a clear, unequivocal
statement to “ ‘shoot up’ ” the school at a specific time with a specific
weapon—is extremely likely to be taken as a serious threat. The
circumstances of the threat support the conclusion that D.R. intended for the
Instagram post to be perceived as genuine. A month before D.R. posted the
threat, the principal and D.R.’s parents told D.R. that threatening a school
shooting would “scare[]” people because they would take the comment
“seriously.” Threatening to commit a mass shooting under these
circumstances establishes D.R. intended for the social media post to be taken
as a threat. Moreover, when a similar threat was made the day before at his
sister’s school, classes were cancelled. This evidence strongly suggests D.R.
was hoping for the same result when he made the threat against his school.
This case bears no resemblance to In re Ricky T. (2001) 87 Cal. App. 4th
1132, cited by D.R. There, the minor cursed at his teacher and said, “ ‘I’m
going to get you’ ” after the teacher accidentally hit him with a classroom
door. (Id. at p. 1135.) The minor apologized and acknowledged his actions
were inappropriate. (Ibid.) D.R.’s threat was not, as in Ricky T., an
“emotional response to an accident.” (Id. at p. 1141.) It was a deliberate
action, calculated to put students and staff in fear. And unlike the minor in
Ricky T., D.R. did not apologize; instead, he tried to minimize his
involvement.
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III.
The Court Properly Imposed Drug and Alcohol Testing
as a Condition of Probation
Where—as here—the court declares a minor a ward of the court and
places him on probation, Welfare and Institutions Code section 729.3
authorizes the court to impose a probation condition requiring “the minor to
submit to urine testing upon the request of a peace officer or probation officer
for the purpose of determining the presence of alcohol or drugs.” (Welf. &
Inst. Code, § 729.3; In re Kacy S. (1998) 68 Cal. App. 4th 704, 708 (Kacy S.).)
Welfare and Institutions Code “section 729.3 commits the decision to order
testing in a particular case to the juvenile court’s discretion.” (Kacy S., at
p. 708.)
The court did not abuse its discretion in imposing the testing
condition pursuant to Welfare and Institutions Code section 729.3. D.R.
experimented with marijuana, had impulse control issues, and needed
support learning how to follow rules and act appropriately. The court could
reasonably infer that D.R.’s knowledge that “he’s subject to testing” would
help him understand he could not use illegal substances. (See Kacy S., supra,
68 Cal.App.4th at pp. 708–709 [upholding testing condition]; In re Laylah K.
(1991) 229 Cal. App. 3d 1496, 1502 [same], overruled on another point in In
re Sade C. (1996) 13 Cal. 4th 952, 962, fn. 2.)
D.R. challenges the testing condition under People v. Lent (1975)
15 Cal. 3d 481, 486 (Lent).2 The court in Kacy S. rejected a similar argument.
2 A condition of probation is invalid under Lent “if it ‘ “ ‘(1) has no
relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids conduct
which is not reasonably related to future criminality.’ ” ’ [Citations.] ‘The
Lent test “is conjunctive—all three prongs must be satisfied before a
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It explained that the “testing condition is designed to detect the presence of
substances whose use by minors is unlawful. [Citations.] Thus, the testing
‘ “relates to conduct which is . . . in itself criminal.” ’ [Citation.] Moreover, in
enacting section 729.3, the Legislature has found that ‘alcohol and drug
abuse’ are ‘precursors of serious criminality . . . .’ [Citation.] Thus, the
testing is also ‘ “reasonably related to future criminality.” ’ [Citation.]
Because the testing condition relates to criminal conduct and is reasonably
related to future criminality, its imposition is within the juvenile court’s
discretion even as measured by the Lent formulation.” (Kacy S., supra,
68 Cal.App.4th at p. 710.) We reach the same result.
DISPOSITION
The judgment is affirmed.
reviewing court will invalidate a probation term.” ’ ” (People v. Cruz
Cruz (2020) 54 Cal. App. 5th 707, 711.) Lent has been superseded by statute
on another ground as stated in People v. Moran (2016) 1 Cal. 5th 398, 403,
fn. 6.
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_________________________
Reardon, J.*
WE CONCUR:
_________________________
Needham, Acting P.J.
_________________________
Burns, J.
A156827
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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