The Juvenile, the Criminal Threat and the Emojis

This post examines a 2015 decision from the California Court of Appeal – First District: In re L.F., 2015 WL 3500616.  As Wikipedia explains, in

jurisprudence, in re: is used to indicate that a judicial proceeding may not have formally designated adverse parties or is otherwise uncontested. The term is commonly used in case citations of probate and  bankruptcy proceedings. . . . It is sometimes used for consolidated cases, as with In re Marriage Cases. It was adopted by certain U.S. states like California when they adopted no-fault divorce to reflect the fact that the modern proceeding for dissolution of marriage was being taken out of the adversarial system. It is also used in juvenile courts, as, for instance, In re Gault.

Getting back to the opinion this post examines, the Court of Appeal begins by explaining that

Minor L.F. appeals after the juvenile court sustained a wardship petition alleging she committed a criminal threat. (Penal Code, § 422; Welfare & Institutions Code § 602.) On appeal, Minor contends the juvenile court: (1) erred in finding she violated section 422, (2) erred in overruling her demurrer, (3) abused its discretion by not reducing the violation to a misdemeanor, (4) improperly failed to include a scienter requirement in a probation condition, and (5) improperly failed to inform her of the duration of her probation. 

In re L.F., supra.

The Court of Appeal then went on to explain how, and why, the case arose:

Thomas F.'s two daughters attended Fairfield High School (FHS). One evening in May 2014, one of his daughters told him she did not want to go to school after reading on Twitter that `somebody was going to shoot up the school the following morning.’ The person `tweeting’ was Minor, another FHS student. Thomas F. looked at the `tweets’ on his daughter's phone and then found the Twitter account on his own phone. Although he was not one of Minor's `followers,’ Thomas F. was able to view the account by searching for her username.

The tweets in question were made over the course of approximately three hours. Among Minor's tweets were the following: `If I get a gun it's fact I'm spraying [five laughing emojis] everybody better duck or get wet’; `I'm dead ass [three laughing emojis] not scared to go to jail for shooting up FHS warning everybody duck’; `Nigga we ain't fighting I'm bringing a gun [six laughing emojis]’; `Mfs don't really kno me [two laughing emojis] I have touched a gun pointed one don't [. . .] Bitch I kno how to aim’; `Mfs tripping boii [three laughing emojis] I'm frfr black mask yellow tape homicide niggas better he cool’; `Ain't nobody safe [‘100’ emoji]’; `I'm finnah come to FHS like black opps stabbing niggas! Who really with it?’; `I feel sorry for whoever got c wing 1st period [four laughing emojis]’; `@[username] idk when shit go down prolly the next day’; `I hope ms Sheila run c wing that day’; `Oh yeah all my friends have c wing so d wing’; `And wtf lol tf you getting popped first fr try me [laughing emoji]’; `It's funny cause nobody fighting no more sooooo!! I'm just shootin niggas for fun’; `Mfs wanna test me now [three clapping hands emojis] you crazy I'm crazy too let's die shooting’; `I'm leaving school early and going to get my cousin gun now [three laughing emojis and two clapping hands emojis]’; `Y'all gonna make me go to jail before I step foot on campus [laughing emoji]’; `I really wanna a challenge shooting at running kids not fun [laughing emoji]’; `Ok I'm done and if I get called in by the FBI or something bout shooting up a school you Mfs really gonna get shot’; and `Kill or be killed!!’ Thomas F. also testified that he saw a response on Minor's account in which someone offered to sell her a gun.

In re L.F., supra.

The opinion goes on to explain that

[s]ome of Minor's tweets include laughing emojis and statements like `just kidding.’ For example, Minor tweeted: `Lmao I'm really jk tho [three laughing emojis] don't jump him and it's g frfr [‘100’ emoji] or ima really come spraying’; `Do y'all really think I'm that crazy it's a compliment’; `I love my life [laughing emoji].’ Minor's Twitter account showed that some Twitter users who responded to her tweets did so in a joking manner. For example, one user, `@[username]’ tweeted to Minor `o you crazy [laughing emoji, devil emoji].’

Thomas F. grew concerned about the number and nature of the tweets and called the police. He was concerned for his daughters' safety, and neither of them attended school the next day.

A police officer arrived at Thomas F.'s house, and he showed the officer the tweets. The officer reviewed and took pictures of the tweets, spoke to Thomas F. and his daughter, and determined Minor's name and address. Thomas F. told the officer he was concerned about his children's safety and feared sending them to school the next day.

The officer went to Minor's home, placed her in handcuffs, and read her her constitutional rights. Minor said that she did not mean the statements she had made on Twitter and that they were a joke. She was unable to explain why she made the statements. She told the officer she was not angry. Minor and her mother told the officer there were no weapons in the house.

In re L.F., supra.

The Court of Appeal then explained that on the

same evening, Dr. William Cushman, a vice principal of FHS, received a text message from a former student informing him of tweets indicating that someone was going to shoot up the school. Dr. Cushman asked for screen shots of the tweets. Dr. Cushman saw tweets that made specific references to parts of the school, C-wing and D-wing, and specific people. Dr. Cushman felt `[s]cared and nervous’ because as the person in charge of the lockdown protocol in an emergency, he would have to `go out and clear the hallways and make sure people leave the rooms,’ and he would be in `as much danger as anybody else.’

Dr. Cushman contacted the school resource officer and the principal, and sent out a mass text to school faculty and staff about the issue. The following morning, Dr. Cushman decided to concentrate resources on C-wing. He sent a campus-wide email to the school's staff saying there had been a specific threat to C-wing and directed Bell, who had been specifically mentioned in the tweets, to remain in the office.

In re L.F., supra.

Next, the opinion explains that an

intern at the district attorney's office testified that although she was not one of Minor's Twitter followers, she was able to look up Minor's Twitter account by searching for her username. Minor had about 500 followers. It was possible to create a private Twitter account that could be viewed only with permission, but Minor's account was not private.

Minor's best friend testified that she had read the tweets and did not take them seriously, and that the use of laughing emojis in the tweets indicated that Minor was joking. Minor's sister also testified that when she saw the tweets, she thought they were a joke due to the use of laughing and smiling emojis and the terms for `just kidding’ and `laugh out loud.’ She had never known Minor to be violent or threaten others. No one in the family owned a gun, and Minor did not have access to a gun.

In re L.F., supra.

The next development was that the

district attorney filed a juvenile wardship petition alleging Minor had made felony criminal threats against `FAIRFIELD HIGH SCHOOL STUDENTS AND STAFF.’ (§ 422.) Minor demurred on the ground the petition failed to state a public offense, and the court overruled the demurrer.

The juvenile court sustained the petition after a contested hearing. The juvenile court found that the tweets were clearly a threat. The juvenile court also found specific intent that the tweets be taken as a threat because `[s]he had approximately 500 people on her account . . . and the fact that some of those wouldn't take that as a serious threat is inconceivable.’ The juvenile court stated, `Two to three hours of tweets that—I just don't see how you can get around it. It was intended to be taken as a threat. There's anger in those. There's statements in there about the teacher going to be the first to get it, and other racial comments about they're going to be the first to get popped and all.’ The juvenile court was satisfied `beyond a reasonable doubt that the offense has occurred.’

In re L.F., supra.

The opinion then explains that

Minor moved to have the offense reduced to a misdemeanor, and the trial court denied the motion.

Minor was released to her mother and granted probation. Among Minor's terms of probation, she was prohibited from possessing any weapons or ammunition.

In re L.F., supra.

The Court of Appeal then began its analysis of Minor’s argument as to why her conviction for making “criminal threats” in violation of § 422 of the California Criminal Code.  In re L.F., supra. The court explained that

Minor contends there was insufficient evidence to support a finding that she made a criminal threat under section 422. `To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) However, where the appellant raises a `plausible First Amendment defense’ to a criminal threat conviction, we make an independent examination of the record in order to ensure that the speaker's free speech rights have not been infringed. (In re George T. (2004) 33 Cal.4th 620, 632 (George T.).) Credibility determinations and findings of fact that are not relevant to the First Amendment issue are not subject to independent review. (Id. at p. 634.) Thus, we defer to the lower court's credibility determinations but make an independent examination of the whole record to determine whether the facts establish a criminal threat. (Ibid.)

In re L.F., supra.

The opinion then explains that

[a]s noted in George T., supra, 33 Cal.4th at page 630, not all threats are criminal. In order to prove a violation of section 422, the People must establish the following: (1) that Minor “`”willfully threaten[ed] to commit a crime which [would] result in death or great bodily injury to another person,”’ (2) that Minor made the threat  `”with the specific intent that the statement ... be taken as a threat, even if there is no intent of actually carrying it out,”’ (3) 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 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 (Toledo ).)

Minor does not dispute that the evidence supports the first element of the offense but argues that there is insufficient evidence to establish the remaining elements.

In re L.F., supra.

The Court of Appeal went on to analyze the extent to which the evidence established the three remaining elements of the offense with which Minor was charged. In re L.F., supra.

It began with “specific intent,” explaining that

[t]o determine whether Minor had the specific intent that her tweets be taken as a threat, section 422 `does not require that a threat be personally communicated to the victim by the person who makes the threat’; however, `it must be shown that [she] specifically intended that the threat be conveyed to the victim.’  (In re Ryan D. (2002) 100 Cal.App.4th 854, 861 (Ryan D.).) `[I]f one broadcasts a threat intending to induce sustained fear, section 422 is violated if the threat is received and induces sustained fear—whether or not the threatener knows [her] threat has hit its mark.’ (People v. Teal (1998) 61 Cal.App.4th 277, 281.)

Minor contends there is no evidence she intended to convey her threats to FHS students and staff through her Twitter account. We disagree. Minor had approximately 500 Twitter followers, and her account was publicly accessible. The posts themselves indicate that some of those who replied to, or `retweeted,’ Minor's posts were FHS students. The evidence is sufficient to support the juvenile court's factual finding that Minor intended to convey a threat.

We are not persuaded otherwise by Minor's reliance on Ryan D. There, a month after being cited for possession of marijuana, a minor submitted a painting in his art class depicting him shooting the officer who had cited him. The art instructor found the painting to be ‘”disturbing”’ and ‘”scary”’ and showed it to an administrator. (Ryan D., supra, 100 Cal.App.4th at p. 858.)

A day later, an assistant principal confronted the minor, who admitted he was angry with the officer and that it was reasonable that she would eventually see the picture. (Ibid.) Later that day, the officer was shown the painting and ‘”was pretty shocked’ and ‘upset’ because it depicted somebody ‘blowing [her] head off.”” (Ryan D., supra.) The juvenile court found the minor had made a criminal threat, and the appellate court reversed the trial court's order on this point, holding that the painting did not constitute a criminal threat in violation of section 422. (Ryan D., supra.) In doing so, the court noted that the minor had turned the painting into his class for credit, rather than displaying it to the officer or putting it in a location where he knew she would see it, and concluded the evidence was insufficient to support a finding that he intended the officer to see it. (Ryan D., supra.) Here, on the other hand, the evidence supports an inference that, in posting the threatening statements on her Twitter account, Minor intended to convey them to members of the victim group.

In re L.F., supra.

The court also explained that,

[r]elying on In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.), Minor also argues the evidence does not show she intended her statements to be taken as a threat. The minor in Ricky T. was charged with violating section 422 after threatening his teacher. The minor stepped out of class to use the restroom. (In re Ricky T., supra.) When he returned and found the door locked, he pounded on it; when the teacher opened the door, the door hit the minor. He became angry, cursed at his teacher, and said, `I'm going to get you.’ (In re Ricky T., supra.) The teacher felt physically threatened. (In re Ricky T., supra.) The police were called the following day. (In re Ricky T., supra.) Division Four of the First Appellate District reversed the juvenile court's finding and held that there was no violation of section 422. (In re Ricky T., supra.) The court concluded the remark was `ambiguous on its face and no more than a vague threat of retaliation without prospect of execution.’ (In re Ricky T., supra.) Moreover, the court noted, the surrounding circumstances did not indicate gravity of purpose: There was no prior history of disagreements, the police were not called until the next day, and they did not interview the minor again until a week after the incident. (In re Ricky T., supra.)

Minor contends her statements were similarly ambiguous because many of them were accented by symbols of laughing faces and some were accompanied by the terms such as `jk’ or `Lmao,’ which, Minor argues, show her statements were meant as a joke. In the circumstances of this case, we cannot fault the juvenile court's findings. Minor's threatening statements were made over a period of hours, they included threats to shoot people in C-wing or D-wing, including one named staff member, and Minor stated she was going to get a gun. Moreover, Minor provided specific details about the impending shooting, going so far as clarifying that she would target D-wing instead of C-wing; she also stated she did not care about going to jail and threatened to shoot those who called the FBI. On these facts, it was reasonable for the juvenile court to conclude Minor intended her statements to be taken as a threat.

In re L.F., supra.

The court then took up the next element of the crime with which Minor was charged and of which she was convicted, explaining that

Minor contends the tweets were too vague and general in nature to satisfy the requirement that a threat be `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.’ (§ 422, subd. (a).)

To determine if a purported threat meets this standard, it must be examined `on its face and under the circumstances in which it was made.’ (In re Ricky T., supra.) `The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat.’ (In re Ricky T., supra.) Examples of circumstances that may be considered include `the prior relationship of the parties and the manner in which the communication was made.’ (In re Ricky T., supra.)  `”’[U]nequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances.’”’ (In re George T., supra). The four elements are `”’simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.’”’ (People v. Wilson (2010) 186 Cal.App.4th 789, 807.) `”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.’”’ (People v. Wilson, supra).

In re L.F., supra.

The court therefore found that the

evidence here supports the juvenile court's conclusion that Minor's statements were sufficiently `unequivocal, unconditional, immediate and specific’ to constitute a criminal threat under section 422. Minor mentioned her intention to direct violence at specific parts of the school, she said she was `sorry for whoever got c wing 1st period,’ she said she was `leaving school early and going to get [her] cousin['s] gun now,’ and her Twitter page included the statement, `idk when shit go down prolly the next day’  Indeed, Dr. Cushman notified the school's staff the next morning, `We have a very specific threat. It's limited to C-wing.’

Given the specific references to parts of FHS and an individual staff member and the indication the threats would be carried out in first period, `prolly the next day,’ the juvenile court properly found the threats were `”so unequivocal, unconditional, immediate, and specific,’” that they constituted a criminal threat. (People v. Toledo, supra).

In re L.F., supra.

The Court of Appeal then took up the third element of the offense, explaining that Minor

contends the People failed to prove the threats actually caused students and staff reasonably to suffer sustained fear. Section 422 applies where `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.”’ (People v. Toledo, supra). `The phrase to ‘cause[ ] that person reasonably to be in sustained fear for his or her own safety’ has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.’ (In re Ricky T., supra.) `Sustained fear’ means `a period of time `that extends beyond what is momentary, fleeting, or transitory.’ (In re Ricky T., supra.) What constitutes `sustained fear’ may depend on the circumstances: `Fifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute ‘sustained’ fear for purposes of this element of section 422.’ (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)

In re L.F., supra.

The opinion goes on to explain that

Minor contends this element is not satisfied because (1) rather than immediately calling law enforcement to arrest her, Dr. Cushman called the school resource officer and principal; (2) Thomas F.'s testimony about his daughter's statements to him were admitted not for their truth but to explain his actions; and (3) although Thomas F. testified to his own fear, he was not among the students and staff at the school, the alleged victims of the offense.

Whether or not the fear of Thomas F. or his daughter may properly be considered, we conclude the evidence of Dr. Cushman's fear is sufficient to support a finding that this element has been met. Dr. Cushman testified that he was `[s]cared and nervous’ because as the person in charge of the lockdown protocol, he would be in danger. His actions show he took the threat seriously; he called the principal and the school resource officer and he sent a mass text to staff members that evening. The next morning he told Bell to remain in the office and sent an email to the entire school staff telling them there had been a specific threat to C-wing. This evidence is sufficient to support a finding that Minor's victims were in sustained, reasonable fear due to Minor's tweets.

Viewing the evidence in the light most favorable to the judgment, the trial court reasonably concluded that all the elements of a criminal threat were met. Further, because the juvenile court properly found Minor's statements were criminal threats within the meaning of section 422, the statements were not protected by the First Amendment. (In re George T., 33 Cal.4th 620 (Supreme Court of California 2004).

In re L.F., supra.

For these and other reasons, the Court of Appeal modified the “weapon probation condition” imposed on Minor so that it reads as follows: `Minor shall not knowingly possess any ammunition, or deadly or dangerous weapons.’ In re L.F., supra. Otherwise, the court affirmed the Juvenile Court judge’s decision. In re L.F., supra.