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Filed 1/30/15 In re Alex Y. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re ALEX Y., a Person Coming Under 

the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEX Y.,

Defendant and Appellant.

 A141551

 (Napa County

 Super. Ct. No. JV17581)

Alex Y. appeals from a dispositional order of the juvenile court sustaining

allegations of attempted criminal threats and making a false report of an emergency. 

Alex contends the prosecution failed to prove the attempted criminal threats because 

there was insufficient evidence he intended his statements to be received by a particular 

person or group, the recipients identified in the complaint as “persons associated with an 

elementary school” were too vague and broad, and his statements were insufficiently 

specific and immediate to be understood as threats. His contentions are meritless, so we 

affirm.

BACKGROUND

On October 20, 2013, a report was made to the American Canyon Police 

Department that threatening statements were posted on Facebook under Alex’s name.

Napa County Sheriff’s Deputy Kenneth Vandyke responded. The caller, who wished to 
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remain anonymous, e-mailed the posts to Deputy Vandyke. The first said, “Im going to 

shoot up an elementary school and eat the children’s still beating hearts[.]” The second, 

posted about seven and a half hours later, said “Im gonna shoot up the elementary school 

tomorrow” (Sic.) and “Oh boy I cant wait for the nsa to arrive at my doorstep with a 

warrent[.]”(Sic.) 

Deputy Vandyke contacted Alex Y. at his home, told him he was under arrest for 

criminal threats, and asked if the Facebook posts were his. Alex admitted they were, but 

said he made them “as a joke. He saw another person was recently arrested for the same 

thing.” He did not seem surprised that the police came to his home. A search of Alex’s 

bedroom produced several Airsoft replica rifles,1a helmet, and a tactical vest. 

The People filed a juvenile wardship petition alleging two felony counts of attempt 

to threaten to commit a crime resulting in death or bodily injury and two misdemeanor 

counts of falsely reporting an emergency. The juvenile court sustained all counts 

following a contested jurisdictional hearing and denied a defense motion to reduce the 

felonies to misdemeanors. Alex was placed on six months’ probation without wardship 

and committed to juvenile hall for eight days with credit for eight days served. This 

timely appeal followed. 

DISCUSSION

Alex’s challenge to the sufficiency of the evidence is premised on his contentions 

that his Facebook posts were insufficiently specific and immediate to constitute a threat, 

that there was insufficient evidence to prove he intended his posts to be received and 

understood as threats, and that the prosecution failed to identify the group of intended 

recipients with sufficient specificity to support a finding that the postings could cause a 

reasonable person to be placed in fear. We disagree.

 

1Airsoft rifles are air guns that fire plastic pellets. 
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I. Legal Standards

A. Attempted Criminal Threats

Under Penal Code section 422,2“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” is guilty of a crime punishable as a 

misdemeanor or a felony. (§422, subd.(a).)

“In order to prove a violation of section 422, the prosecution must establish all 

of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which 

will result in death or great bodily injury to another person,’ (2) that the defendant made 

the threat ‘with the specific intent that the 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.” (People v. Toledo (2001) 26 Cal.4th 221, 227–

228; People v. Chandler (2014) 60 Cal.4th 508, 511.)

The crime of attempted criminal threat is completed “whenever, acting with the 

specific intent to commit the offense of criminal threat, the defendant performs an act that 

 

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Further citations to statutes are to the Penal Code.
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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 person to be in sustained fear for his or her own 

safety or for his or her family’s safety.” (People v. Toledo, supra, at pp. 230–231.) An

attempted criminal threat is thus completed if a defendant does everything necessary to 

perpetrate a criminal threat but the threat is intercepted before it is delivered. (Id. at 

p. 231.)

B. Standard of Review

In reviewing the sufficiency of the evidence in a juvenile criminal case, as with an 

adult conviction, “ ‘we must determine “whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘ “[O]ur role 

on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must 

presume in support of the judgment the existence of every fact that the trier of fact could 

reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances 

reasonably justify the trier of fact's findings, the opinion of the reviewing court that the 

circumstances might also reasonably be reconciled with a contrary finding does not 

warrant reversal of the judgment. [Citation.]’ ” (In re V.V. (2011) 51 Cal.4th 1020, 

1026.)3

 

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The Attorney General correctly observes that a somewhat more complex standard 

of review applies when a defendant in a criminal threats case raises a plausible First 

Amendment defense. (See In re George T. (2004) 33 Cal.4th 620, 631–632.) Although 

Alex makes no such assertion here, we have independently reviewed the record to the 

extent necessary to ascertain that his Facebook posts constitute speech that falls outside 

the protection of the First Amendment. (See id. at p. 634 [“independent review permits 
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II. Analysis

Alex demurred to the attempted threats counts as originally charged and as 

proposed in an amended petition because the alleged intended recipient of his posts was 

“the elementary school,” and, as Alex observed, “[a]n elementary school is not a human.” 

The People, perhaps in an excess of caution, amended the petition to identify as the 

alleged recipient “ ‘persons associated with an elementary school,’ ” to clarify that the 

victim was not an inanimate collection of classrooms, books and desks, but, rather,

“every person who goes to, works at, or is related to someone who goes to or works at an 

elementary school in American Canyon, or anywhere for that matter . . . .” The People 

explained, “[t]here is not a single named victim because this threat was not 

communicated to one particular person. It was broadcast on the internet where hundreds, 

if not thousands, of people may have seen it. Among those people were the minor’s 

friends and neighbors in American Canyon, including people who work at or have family 

members who work at or attend elementary school in American Canyon. It is all of these 

people that are potential victims of the minor’s threats.” The juvenile court granted the 

motion to amend and overruled the demurrer. 

Invoking a related theme on appeal, Alex asserts the evidence was insufficient to 

sustain the attempted criminal threats allegations because the prosecution failed to 

identify either specific persons, a particular elementary school, or persons associated with 

a particular elementary school as the intended recipients of his threats to “shoot up an 

elementary school and eat the children’s still beating hearts” and “shoot up the 

elementary school tomorrow.” We disagree.

Alex is mistaken on the law when he argues the intended victim of attempted

criminal threat must be a specific, identifiable person or persons. He cites no cases that 

so hold, and his citation to cases that involve identified or identifiable recipients are not 

authority for his claim that the intended recipients must be identifiable—or at least more 

clearly identifiable than “persons associated with an elementary school.” (See, e.g., 

 

an appellate court to ensure that the Toledo test is satisfied and that the suppression of 

speech is constitutionally permissible”.]) 
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People v. Toledo, supra, 26 Cal.4th 221 [defendant verbally threatened his wife]; People 

v. Chandler, supra, 60 Cal.4th at pp. 511–512 [verbal threat to kill neighbor and former 

friend]; In re George T., supra, 33 Cal.4th 620 [student gave two classmates allegedly 

threatening poem]; In re Ricky T. (2001) 87 Cal.App.4th 1132 [student verbally 

threatened teacher]; People v. Wilson (2010) 186 Cal.App.4th 789 [prisoner threatened 

guard].) Judicial opinions are not authority for propositions not considered. (People v. 

McGraw-Hill Companies, Inc. (2014) 228 Cal.App.4th 1382, 1390.) 

In any event, the ascertainable identity of the intended recipient or recipients of a 

threat is not one of the elements of the attempt offense enumerated in People v. Toledo, 

supra, 26 Cal.4th at pp. 227–228. (See In re George T., supra, 33 Cal.4th at p. 634.) 

Nor, in this age of instantaneous widespread electronic communication, would it make 

sense to conjure a legislative intent to so limit penal liability for attempted criminal 

threats. Such a requirement would produce the absurd result that an otherwise plausible 

threat targeting a large but poorly defined group, such as a threat to detonate a bomb in a 

major California city, could not be prosecuted as an attempted violation of section 422

even if it was intended, and likely, to cause tens of thousands of persons “reasonably to 

be in sustained fear for [their] own safety or [their] immediate [families’] safety.” (§ 422, 

subd. (a).) “In the end, a court must adopt the construction most consistent with the 

apparent legislative intent and most likely to promote rather than defeat the legislative 

purpose and to avoid absurd consequences.” (In re J.W. (2002) 29 Cal.4th 200, 213.) 

Alex’s evidentiary argument is equally unconvincing. He maintains the 

prosecution failed to show he intended for anyone at any elementary school to receive his 

“communications.” But evidence of specific intent “ ‘is almost inevitably circumstantial, 

but circumstantial evidence is as sufficient as direct evidence to support a conviction.’ 

[Citation.] . . . ‘We “must accept logical inferences that the [finder of fact] might have 

drawn from the circumstantial evidence. [Citation.]” [Citation.]’ ” (People v. Manibusan

(2013) 58 Cal.4th 40, 87.) Here, although Alex concedes he posted the statements on 

Facebook, he says there was no evidence they were accessible to anyone except his 

Facebook “friends” and the prosecutor should have, but did not, prove the number or 
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identity of such “friends” who had access to his posts. Moreover, Alex maintains that 

Facebook is a “poor way” of conveying threats because his Facebook settings may not 

have included any elementary school children or their parents. 

None of this supports his claim. Whether or not any individuals “associated with 

an elementary school” had direct access to Alex’s Facebook posts, his comments about 

wanting to see if he would get arrested demonstrate knowledge that his threats were 

likely to spread broadly enough, and be taken sufficiently seriously, to involve law 

enforcement. Moreover, given the horrific notoriety of school shootings in recent years, 

Alex must have anticipated that individuals who saw his threats would alert others, 

including people who worked at, had relatives who attended, or attended elementary

schools in the area. Indeed, at least one student (more likely high school than 

elementary) who accessed his Facebook page notified his or her parent, who reported it to 

the police. “ ‘Where the circumstances reasonably justify the trier of fact’s findings, a 

reviewing court’s conclusion the circumstances might also reasonably be reconciled with 

a contrary finding does not warrant the judgment’s reversal.’ ” (People v. Manibusan, 

supra, 58 Cal.4th at p. 87.) The evidence here reasonably supports the inference that Alex

intended his threats to cause fright among his targeted audience. 

Alex also argues the judgment is unsupported because (1) his threats did not single 

out a particular elementary school, and (2) the evidence did not show when he posted

them. True, but immaterial. “ ‘A threat is sufficiently specific where it threatens death or 

great bodily injury. A threat is not insufficient simply because it does “not communicate 

a time or precise manner of execution, section 422 does not require those details to be 

expressed. ” ’ [Citations.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1432.) “ ‘[W]e 

understand the word “immediate” to mean that degree of seriousness and imminence 

which is understood by the victim to be attached to the future prospect of the threat being 

carried out, should the conditions not be met.’ ” (Id., italics omitted; People v. Butler

(2000) 85 Cal.App.4th 745, 752) Moreover, as the People observe, the lack of a 

specifically targeted elementary school made the threat more pervasive, not less, because 
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any parent, student, teacher or staff member at any elementary school would reasonably 

be put in fear of an attack. 

Lastly, in his reply brief Alex argues his claim that he would “eat the children’s 

still beating hearts” is so “hyperbolic and impossible” that no reasonable person would 

take it as an actual threat. But the real world teaches that such figurative speech can 

betray a malicious intent. The juvenile court quite reasonably found that Alex’s threat to 

“shoot up an elementary school” would, if delivered to persons associated with an 

elementary schools, convey “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.” (People v. Toledo, supra, 26 Cal.4th at pp. 230–

231.) Whether or not the recipient would have believed Alex intended to literally “eat the 

children’s still beating hearts” is horrifying, but immaterial. 

DISPOSITION

The judgment is affirmed.
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_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Jenkins, J.
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In re Alex Y., A141551