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defendanttestimonywillsustainedbeyond a reasonable doubt
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In re Sylvester C., 137 Cal.App.4th 601, 40 Cal.Rptr.3d 461, 06 Cal. Daily Op. Serv. 2068, 2006 Daily Journal D.A.R. 2898

Facts

The minor was involved in a physical altercation in a parking lot, during which he threatened parking attendant Mario Cerritos and another attendant, Hugo Mejia. Cerritos testified that the minor threatened to kill him and everyone present if the police were called. Although Mejia did not testify, Cerritos expressed fear for his life based on the minor's threats. The minor's defense was that he did not threaten anyone, but the court found Cerritos's testimony credible.

Cerritos told the minor he was going to call the police. The minor replied: “If you call the police, I am going to kick your ass.” Cerritos told his assistant to make the call, after which the minor approached Cerritos and said: “If you call the police, I will kill you and I will kill everybody there, everybody, all the employees.”

Issue

Was there sufficient evidence to support the finding that the minor made a criminal threat against Mejia?

The minor contends the evidence is insufficient to support the finding he made a criminal threat against Mejia, who was not a witness at the adjudication.

Rule

To establish the making of a criminal threat, the prosecution must prove that the defendant willfully threatened to commit a crime resulting in death or great bodily injury, with specific intent for the statement to be taken as a threat, and that the threat caused the person threatened to be in sustained fear for their safety.

The following elements must be proved to show the making of a criminal threat. “(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.

Analysis

The court determined that while Cerritos's testimony indicated he was scared, it did not provide substantial evidence of Mejia's subjective fear, as Mejia did not testify. The absence of evidence regarding Mejia's state of mind meant that the prosecution failed to prove beyond a reasonable doubt that the minor made a criminal threat against him. However, the court found that the elements of attempted criminal threat were satisfied, as the minor's threats were made with the requisite intent.

The delinquency petition alleged the minor made separate criminal threats against Cerritos and Mejia. However, Cerritos was the only victim to testify. Without Mejia's testimony, the minor argues, there is no evidence Mejia was actually in “sustained fear” from the minor's threats. And, because the record is silent as to this subjective element of the offense, the prosecution failed to support a finding beyond a reasonable doubt the minor made criminal threats against Mejia.

Conclusion

The court modified the juvenile court's finding from a criminal threat to an attempted criminal threat against Mejia, affirming the rest of the order.

We conclude, however, it would be anomalous and contrary to the Legislature's obvious intent in punishing attempted crimes to completely absolve a defendant if the evidence falls just a bit short of proving he succeeded in completing his intended crime, while at the same time punishing other defendants when the evidence demonstrates they failed miserably.

Who won?

The minor prevailed in part, as the court reduced the charge from making a criminal threat to attempted criminal threat due to insufficient evidence.

The court modified the juvenile court's finding from a criminal threat to an attempted criminal threat against Mejia, affirming the rest of the order.

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