Filed 8 / 31 / 21 In re M.B. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

I N RE M.B

. , a Person Coming Under the J uvenile Court Law.

_____________________________
THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

v.

M.B

. ,

Defendant and Appellan t

. 2d Juv

. No . B 307531 (Super. Ct. No

. FJ56779 ) ( Los Angeles County)

“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 )

.2

( Welf. & Inst. Code, § 602

. ) The court declared the offense a
misdemeanor , placed appellant on six months ’ probation without wardship , and or dered him released to a parent. Appellant

con tends the evidence is insufficient to support the finding that
he mad e 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
wit h 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 m onotone voice that “[i]f I was going to shoot up the school, she would be first, and then it would be you, and then eve rybody 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
clen ched. 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 ta ble.”
E.M. left th e table

, walked to her next class about 40 feet

away , and waited outside the front door for the bell to ring

. A3

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 sh e did not think appellant was joking but told him it was “okay” because she “di dn’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 l ife harder than it had to be,” but subsequently “regretted sending it.”
Burbank Police Officer Dustin Rodriguez was assigned as a
School Resource Officer a t 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. w ere 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 wit h them before , came to their
table “in t he 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 h er in the head. Everyone la ughed
and h e only made the statement once. After E.M. left and walked4

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 evidenc e is insufficient to support the finding that h e 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 judgmen t 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 credibil ity
issue s 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 mus t establish “‘(1) that the defendant “willfully threaten[ed] t o 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 person5

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 sust ained 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 disput e 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 res ult of the threat, and that her fear was
reasonable under the circumstances. He nevertheless contends
that th e 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 a s 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 co urt , h owever, 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 determination s . [Citation.] A nd

we note there is nothing funny about threatening to take a gun to school in any eve nt.” ( 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 wi th 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 to6

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, italic s added), appellant’s threats were made directl y to E.M. Appella nt 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 y ou” 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

. Th e Court
of A ppeal agree d 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 mad e convey ed a gravity of purpose and an
immediate prospect of execution of the threat, and that the threat actually placed with teach er in sustained fear for his safety . ( Id

. at p p

. 1137

- 1141 .) In reaching its conclusion, the court reasoned among other things that “[a]ppellant’s intemperate, rude, and
i nsolent 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, appel lant 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. c onveyed that she did not think
the remark was funny, appellant repeated it in a more serious7

tone. After E.M. left the the table, appellant followed her, clenched his fists, and an grily told her he was going to bring a Glock 9 to school the next day and shoot her in the head. Th is 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 j udgment is affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P. J.

TANGEMAN, J.Kevin Brown, Judge Superior Court County of Los Angeles

______________________________

Lyn ette Gladd Moore

, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Rob Bonta, Attorney s General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo

, and Peggy Z. Huang, Deputy Attorney s General, for Plaintiff and Respondent.