Opinion
C087924
05-17-2022
In re C.C., a Person Coming Under the Juvenile Court Law. v. C.C., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. No. 52008590
RAYE, P. J.This case is based on conversations between high school students. C.C. attended high school with G.O., B.L., and I.F. He spoke with his three classmates about guns and school shootings. He showed G.O. a "to do list" of people he wanted to shoot, including students, teachers and school officials. He told I.F. about how he would orchestrate a school shooting and shared his list of intended victims. He spoke with B.L., who shared her own to do list. After a math teacher confiscated C.C.'s school-issued laptop, a search history that included a Google search for "school shooting simulator" was discovered as well as C.C.'s to do list and notes alluding to a school shooting. When questioned by a school resource officer, C.C. said he was just joking. I.F. was not afraid because she did not believe he would carry out a school shooting. G.O. originally thought C.C. was joking, but became scared when he told her not to attend school because he was going to shoot up their English class. In none of his conversations with the three students were the students threatened; the identified targets were others. While he told I.F. he wanted to learn to shoot a gun, there is no evidence that he possessed a gun. Though at one time there were firearms in the family home, C.C. knew they had been taken away and did not know about their later return.
A juvenile petition alleged C.C. committed attempted criminal threats and used the school's computer without authorization. Following the jurisdictional hearing, the juvenile court found both counts of the petition true, although the court narrowed the true finding regarding the attempted criminal threat count to G.O. only. At a subsequent dispositional hearing, C.C. was placed on probation. He now appeals.
On appeal, C.C. contends the juvenile court's true finding that he committed an attempted criminal threat must be reversed because his speech and conduct was protected by the First Amendment and because insufficient evidence supports the finding. He also argues insufficient evidence supports the true finding that he committed unauthorized access to a computer.
We conclude his First Amendment argument was forfeited by his failure to raise it below. We agree that neither the attempted criminal threat offense nor the true finding on the unauthorized access offense are supported by substantial evidence. Therefore, we reverse the judgment.
BACKGROUND
The circumstances that gave rise to the charges against C.C. arose from conversations he had with three high school classmates: G.O., I.F. and B.L. C.C. talked about guns, wanting to learn to shoot a gun, and shooting other students while in other classes. During his math class, he sat next to I.F. and told her about ways he would orchestrate a school shooting. C.C. talked about calling and making a threat to the school to get everyone into the cafeteria. He said once the students were assembled in the cafeteria, he would shoot as many people as possible. C.C. also talked about guns, wanting to learn to shoot a gun, and shooting other students while in other classes. I.F. testified that she saw C.C. make a list of people he did not like (the to do list). He asked her to also make a list of people she did not like, but she refused. Although she was not afraid because she did not believe C.C. would carry out a school shooting, she thought he wanted to hurt the faculty and students on his list.
Student B.L. was also involved in the conversation with C.C. and I.F. during math class. Unlike I.F., B.L. made her own list; C.C. apparently transferred some of the names on B.L.'s list to his own to do list. While making her list, B.L. asked if C.C. was going to fight the people on the list. C.C. wrote back, "no, no, no, petty thing fighting." Next to one student's name on B.L.'s list C.C. wrote "refuse to kill." B.L. assumed C.C. meant that he would not kill that particular girl. A school administrator testified that B.L. told her C.C. had discussed wanting to get a gun for a school shooting.
All three students testified at the contested jurisdictional hearing. However, the trial court narrowed the true finding regarding the attempted criminal threat count to G.O. only. G.O. testified that in early 2018 she and C.C. had English class together. For two weeks they sat next to each other during class. C.C. talked about guns and school shootings with G.O. every day they sat next to one another. C.C. made gun symbols with his hands to mimic shooting other students when he discussed school shootings. He said he had access to a gun at home.
On two occasions, C.C. told G.O. not to attend school on certain days because he was going to shoot up their English class. This "really scared" G.O. because she was worried he was going to hurt her and her classmates. Despite her worry, G.O. never reported her conversations with C.C. to any teacher or staff member.
While G.O. originally thought C.C. was joking, as he continued to discuss school shootings, G.O. became more scared. C.C. showed G.O. a list he had made entitled "to do list" with names of people he wanted to shoot. In addition to several student names, C.C.'s to do list included the names of his English teacher, his math teacher, and an assistant school principal. Next to the assistant principal's name was the notation, "Shoot him unrecognizable."
On March 20, 2018, C.C. was in math class where the students were supposed to be using their assigned school laptops to complete a lesson using a special math program. While walking around the room monitoring the students, C.C.'s math teacher saw that he was not on the designated math page but was looking at something else. After he told C.C. several times to log into the appropriate math program, C.C. denied that he was on a different Web site. The math teacher then confiscated C.C.'s school laptop and checked his search history. The teacher discovered that C.C. had conducted a Google search for "school shooting simulator." He sent C.C. to the principal's office.
At the office, C.C. was questioned by the school resource officer. The school resource officer discovered C.C.'s to do list, together with B.L.'s list of people she hated, and another note C.C. had written that said, "Bye [sic] the time you find this it's to [sic] late" in his backpack. When questioned about the list, C.C. told the resource officer that he was just joking and that he did not intend to commit a school shooting.
C.C.'s math teacher was very concerned about the search for a "school shooting simulator" given the nature of recent school shootings in the country. Later, when he learned that his name was on C.C.'s to do list, the math teacher became even more concerned, especially in light of C.C.'s simulator search and because on a prior occasion he had found C.C. searching for guns and handguns while using his school computer. The math teacher suffered stress-related medical issues, and was afraid for the safety of his students, himself, and his family.
Like C.C.'s math teacher, the assistant school principal was "nervous, worried, [and] afraid" after learning that his name together with the phrase "shoot him unrecognizable" was on C.C.'s to do list. The assistant principal was in charge of school discipline, and had dealt with C.C. on multiple occasions. Given his interactions with C.C., the assistant principal believed it was possible C.C. would carry out a school shooting. He was even more fearful after learning that firearms were found in C.C.'s home after his arrest.
C.C.'s mother testified on his behalf. She conceded that five unsecured firearms were found in their home, but claimed only three were operative. While she admitted that at one time C.C. knew the family had firearms in the house, she said they were required to give the firearms away following a family incident and that C.C. knew the guns were taken to the home of his stepfather's parents. According to his mother, C.C. was unaware that the firearms had later been returned to their house and were present on the day of his arrest.
DISCUSSION
I
First Amendment
C.C. contends his words and conduct, including his to do list, were protected by the First Amendment to the United States Constitution, and as such were not subject to criminal sanctions for being a criminal threat. His claim has been forfeited because the issue was not raised in juvenile court and thus has not been preserved for review. As the People note," 'a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' [Citation.]" (United States v. Olano (1993) 507 U.S. 725, 731.) That describes the right asserted on appeal this case, but never asserted in the court below.
II
Attempted Criminal Threat
C.C. contends that there is insufficient evidence to show he attempted to criminally threaten G.O. We agree.
When the sufficiency of the evidence is challenged on appeal, we apply the familiar substantial evidence rule." '[W]e review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Cravens (2012) 53 Cal.4th 500, 507 (Cravens).)" 'The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.'" (People v. Johnson (1980) 26 Cal.3d 557, 576.)
"We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (People v. Medina (2009) 46 Cal.4th 913, 919.)" 'If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.'" (People v. Kaufman (2017) 17 Cal.App.5th 370, 381.) A reversal for insufficient evidence is unwarranted" 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the adjudication]." '" (Cravens, supra, 53 Cal.4th at p. 508.)
The elements of attempted criminal threat are as follows: "(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.)
The testimony supporting the juvenile court's true finding are largely set forth in G.O.'s testimony about conversations she had with C.C. between January and March. He shared a "list of people that he didn't like that had done him wrong or something and that he wanted to shoot." At first it "kind of scared" her but she thought he was joking until he talked about shooting up the English class. However, he never threatened to shoot her. Indeed, he warned her not to come to class on the days he told her he had plans to shoot. She was not a target but a confidante to whom he disclosed his plans. She never betrayed his confidences to teachers or school officials.
The facts of this case bear striking similarities to those of People v. Roles (2020) 44 Cal.App.5th 935. In Roles, the defendant was involved in a heated marital dispute. He called J.B. and left messages threatening J.B. and also threatened to kill H.S. (" 'I will kill every . . . one of you, that's a promise.'" (Id. at p. 940.)) Our court concluded that defendant could not be convicted of criminal threats against H.S. "because she was not the recipient of the messages and there is no evidence he intended [H.S.] to hear the messages." (Id. at p. 943.) Like the teachers and other students who were the objects of C.C.'s ire, the object of the threat in the Roles case never heard the threat, nor was there any evidence that the defendant intended the threat to be communicated to H.S. by J.B.
The minor's actions in this case were truly reprehensible. But they did not violate Penal Code section 422.
III
Unauthorized Access of Computer
C.C. contends insufficient evidence shows he used the school computer without permission. We agree.
The juvenile court found C.C. guilty of computer access and fraud based on Penal Code section 502, subdivision (c)(3). Under that statute, a person commits a public offense if he or she "[k]nowingly and without permission uses or causes to be used computer services." (Pen. Code, § 502, subd. (c)(3).)" 'Computer services' includes, but is not limited, to computer time, data processing, or storage functions, internet services, electronic mail services, electronic message services, or other uses of a computer, computer system, or computer network." (Pen. Code, § 502, subd. (b)(4).)
While the statute does not define the phrase "without permission," some courts have found that "[i]individuals may only be subjected to liability for acting 'without permission' under Section 502 if they 'access[] or us[e] a computer, computer network, or website in a manner that overcomes technical or code-based barriers.'" (In re Facebook Privacy Litigation (N.D.Cal. 2011) 791 F.Supp.2d 705, 715; NovelPoster v. Javitch Canfield Group (N.D.Cal. 2014) 140 F.Supp.3d 938, 950 [same].) Because the record is devoid of any evidence showing he overcame any technical or code-based barriers when he conducted a Google search for a "school shooting simulator" during his math class, C.C. argues that the evidence was insufficient to prove he used the school's computer services without permission.
The People contend the phrase "without permission" should be interpreted more broadly than in In re Facebook Privacy Litigation. They essentially argue that whenever a student is authorized to use a school computer, but somehow violates an expected term of use-here, the math teacher's direction not to use Google at that specific time because C.C. was supposed to be using a designated math program on the computer-the student is acting "without permission" under Penal Code section 502 and can be held criminally liable.
To resolve the dispute, we must apply basic rules of statutory construction. (People v. Childs (2013) 220 Cal.App.4th 1079, 1100-1101 [interpreting the language of Pen. Code, § 502, subd. (c)(5)].) "The overriding goal of statutory construction is to ascertain the legislative intent behind the statute, in order to give effect to that intent." (Id. at p. 1101.) Because the text of a statute is the best indicator of legislative intent, "we begin with the plain, commonsense meaning of the language that the Legislature used. If that language is unambiguous, then the plain meaning of the statute controls." (Ibid.) If, however, the statutory language is ambiguous and permits more than one reasonable interpretation, then we may resort to extrinsic sources, including the ostensible objects to be achieved or evils to be remedied, legislative history, and public policy. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272; People v. Connor (2004) 115 Cal.App.4th 669, 678.) "In such circumstances, we' "select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." '" (Day, at p. 272)
On its face, the term "without permission" is ambiguous as it could have more than one reasonable meaning. C.C. did have permission, as a student, to use the school computer during math class. But because his math teacher told him multiple times that he was supposed to be using the computer to access a designated math program for the lesson, he lacked specific permission in that moment to use other Web sites such as Google for non-school-related activities. We thus turn to extrinsic aids to determine whether the conduct at issue here falls within the scope of the statute.
Subdivision (a) of Penal Code section 502 declares the Legislature's intent in enacting the statute; it was intended "to expand the degree of protection afforded to individuals, businesses, and governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems." (Pen. Code, § 502, subd. (a).) According to the Legislature, "the proliferation of computer technology has resulted in a concomitant proliferation of computer crime and other forms of unauthorized access to computers, computer systems, and computer data." (Ibid.) Protecting the integrity of all types and forms of lawfully created computers, computer systems, and computer data, the Legislature declared, was vital to protect the privacy of individuals as well as the well-being of financial institutions, business concerns, governmental agencies and others within the state that use these computers, computer systems, and data. (Ibid.)
The primary thrust of the statute is to deter and punish browsers and hackers who break into a computer system to obtain or alter the information contained there. (See People v. Gentry (1991) 234 Cal.App.3d 131, 141, fn. 8.) It can hardly be argued, however, that C.C. hacked into the school computer he was permitted to use during math class. Nor did he tamper, interfere, or damage the computer by conducting a Google search instead of using the designated math program. At most he misused a computer he was permitted to use by conducting a Google search beyond the scope of his math lesson.
While not directly on point, Chrisman v. City of Los Angeles (2007) 155 Cal.App.4th 29 is instructive. In Chrisman, a police officer used his work computer for non-duty-related inquiries, searching for celebrities, his girlfriend and her acquaintances, and himself. (Id. at pp. 32, 35-37.) The court found that the officer did not violate Penal Code section 502, subdivision (c)(7), which prohibited a person from knowingly and without permission accessing or causing to be accessed any computer, computer system, or computer network. (Chrisman, at pp. 35-37.) Although Chrisman focused on the statutory definition of "access" rather than "without permission," the case demonstrates that using a computer for the purpose that it was designed for, even if in a manner that is otherwise improper, is not the kind of behavior that the Legislature sought to prohibit when it enacted Penal Code section 502.
We also note that in the employment context, "the Legislature deemed some violations of subdivision (c)(3) to be so trivial or de minimis as not to warrant criminal treatment, namely computer use, though outside the scope of employment, that either does not injure the employer or does not use [$250] worth of supplies or services. Possible examples of this would be an employee who 'surfs' the Internet when he or she has been told not to, or, as the prosecutor suggested, an employee who plays a computer game." (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1442.)
The People's interpretation of "without permission," in the unique context of high school students using an assigned school computer, would criminalize a whole swath of conduct that even the math teacher testified amounted to students being "off task." We do not believe the Legislature intended to criminalize every instance in which a student otherwise authorized to use a school computer conducts a Google search of a topic unrelated to the lesson at hand.
We conclude insufficient evidence shows C.C. violated the statute at issue. We therefore reverse that count.
DISPOSITION
The judgment is reversed.
I concur: HULL, J.
DUARTE, J., dissenting.
I disagree with the majority's conclusion that insufficient evidence supports the attempted criminal threats charge as to G.O. After setting forth much of the evidence of C.C.'s conduct toward G.O. and her resulting fear, the majority inexplicably and cursorily concludes that G.O. "was not a target but a confidante to whom [C.C.] disclosed his plans." (Maj. opn., ante, p. 7.) But the issue is not whether G.O. was the target of the planned shooting, the issue is whether G.O. was properly found the subject of C.C.'s many threats to shoot up the class. In my view, she was. Accordingly, I dissent from Part II of the majority opinion.
The majority cites only our decision in People v. Roles (2020) 44 Cal.App.5th 935 in support of its conclusion. However, as the majority correctly notes, in Roles, the alleged victim of the threats at issue in that case never heard the threats. (Id. at pp. 943-944; maj. opn., ante, at p. 7.) Although the majority likens the victim in Roles to "the teachers and other students who were the objects of C.C.'s ire" (maj. opn., ante, at p. 7), this is not at all an apt comparison. The "teachers and other students" were not the charged victims here, G.O. was the charged victim, and C.C. spoke directly to and with G.O., time after time, over a sustained period, as her fear escalated. Roles is not at all like this case; indeed, the majority's reliance on Roles is baffling.
The primary communications to G.O. supporting the threats charge were the threats to shoot up their shared English class. As a member of that class who sat next to C.C., G.O. was frightened by the threats and victimized by the statements. From my first examination of the briefing and record in this case, I have been convinced that the juvenile court could reasonably find that C.C. intended to instill fear in G.O. by threatening to shoot up their (shared) class, pantomiming shooting some of the students in the class--not all of whom were on the kill list--with his hands, and pretending to pull something out of his backpack and point it at G.O. and her classmates as if he were pulling out and pointing a gun. Having seen him pretend to shoot the other students, and not knowing what he was pulling from his backpack, G.O. could reasonably fear he was pulling out a gun to shoot her and others.
More specifically: G.O. testified she sat next to C.C. in English class for two weeks, that he would specifically reference that class, that he (twice) told her she shouldn't come to school--not really a viable option for a high school freshman--because he was going to "bring a gun" and "shoot up the class," and that he discussed guns and school shootings with her "every single day that [she] sat next to him." Although she testified that she was not sure he was serious about his kill list, she specifically discussed the fourth period English class where he sat next to her as the time period (two weeks) where she was scared and worried every day that he would hurt her. She was "really scared." She testified that "he would . . . get his backpack and pretend to pull something out" and he would "look at . . . other kids in the class and pretend . . . he was shooting a gun." This would happen "randomly during class when he would be talking about it." He also told her he had a gun at home.
This juvenile was not "confiding" in his charged victim, G.O., as the majority concludes. He was purposely freaking her out. He was keeping her scared and anxious about what he would do, showing her kill lists and making gun gestures and pretending to pull out a gun while he was next to her in the very class he said he would shoot up. And these tactics worked--she was worried and scared.
C.C. argues that insufficient evidence proves he specifically intended his communications to be taken as threats by G.O. because there was no history of animosity or conflict between them, and he did not have a threatening demeanor when he discussed the shooting with her and showed her his list. But when the entirety of the circumstances surrounding C.C.'s statements and conduct are considered, it is readily apparent that the juvenile court could reasonably infer that C.C. specifically intended G.O. to take his statements about shootings and his list as threats, even without a history of animosity or use of a belligerent tone. As the People point out, case law does not require that the parties have a conflicted or acrimonious history before a court will find the necessary gravity of purpose. While courts have recognized that pre-existing history can provide context for ambiguous statements (see e.g., In re George T. (2004) 33 Cal.4th 620, 635 ["[a] communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning"]; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [court considered parties history to provide context to the defendant's statement that the victim had ruined his brother's testimony and that he would talk to some guys from a gang]), C.C.'s statements and writings were not ambiguous. To the extent the circumstances can be reconciled with a contrary finding, reversal is not warranted under the governing standard of review. (People v. Kaufman (2017) 17 Cal.App.5th 370, 380-381.)
The juvenile court's implicit finding that C.C. specifically intended to threaten G.O. is further supported when C.C.'s statements and conduct are considered against the wider backdrop of recent school shootings, of which C.C. and G.O. were likely aware. (See In re George T., supra, 33 Cal.4th at p. 640, conc. opn. of Baxter, J. ["[i]t is safe to say that fears arising from a raft of high school shooting rampages . . . are prevalent among American high school students"].) In fact, the student shooting in Parkland, Florida, that killed 17 people occurred in February 2018--during the precise time span covered by the petition for the attempted criminal threat offense. (See History.com Editors, Teen gunman kills 17, injures 17 at Parkland, Florida high school <https://www.history.com/this-day-in-history/parkland-marjory-stoneman-douglas-school-shooting> [as of February 11, 2022], archived at < https://perma.cc/3TNM-V5CT>.)
In a related argument, C.C. contends the evidence was insufficient to show the threat was so unequivocal, unconditional, immediate, and specific as to convey to G.O. a gravity of purpose and an immediate prospect of execution of the threat. Again, he cites the lack of animosity or conflict between he and G.O. to support his argument that he did not specifically intend to convey a gravity of purpose to her. But this argument similarly fails to persuade." 'The use of the word "so" [in § 422] indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.'" (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.)" 'The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.'" (Ibid.)
Here, viewing the evidence in the light most favorable to the judgment, a reasonable trier of fact could find, based on all the surrounding circumstances, that C.C.'s statements and list contained the requisite specificity and immediacy so as to convey to G.O. a gravity of purpose and immediate prospect of death or great bodily injury. As also explained ante, C.C. told G.O. twice in a 10-day period that he was going to shoot up their English class, and said he had a gun at home to carry out the attack. He put the English teacher's name on his list of people he wanted to shoot, and showed it to G.O. while repeatedly talking about guns and school shootings. He also made gun gestures with his hands, pretended to shoot his classmates, and pretended to take something out of his backpack--impliedly a gun--and point or throw his hands in G.O.'s direction. These words and actions all contributed to the gravity of purpose C.C.'s speech and conduct conveyed to G.O. (People v. Fierro (2010) 180 Cal.App.4th 1342, 1348 [the defendant's proximity to the victim and his threatening gesture of displaying a weapon added weight to his words that he would kill the victim].)
G.O. testified that she was "really scared "for a "couple of weeks" based on C.C.'s conduct toward her and his repeated statements to her (as opposed to, as in Roles, conduct toward and statements to someone other than the charged victim). Such evidence was sufficient to show that C.C.'s actions created a sustained fear in G.O. that was certainly more than momentary, fleeting, or transitory. (People v. Fierro, supra, 180 Cal.App.4th at p. 1349 [" 'sustained fear' refers to a state of mind" "it means a period of time that extends beyond what is momentary, fleeting or transitory"; depending on the circumstances, even a minute can qualify as a sufficient period of sustained fear].) The evidence that C.C. talked with G.O. about wanting to shoot people in their English class every day for two weeks further supports a finding that he intended to put G.O. in a sustained state of fear, notwithstanding his argument to the contrary.
It is also clear that G.O.'s fear was reasonable under the circumstances. While it is true that some of her fellow students were not afraid, they were not subjected to C.C.'s talk about shooting up their class every day for two weeks while he pretended to shoot students and throw things at them. Moreover, both C.C.'s math teacher and school principal testified they were fearful of C.C.'s statements and conduct, and the assistant principal said he thought it was possible C.C. was capable of carrying out such an attack. Under the totality of the circumstances, including the sad reality of other school shootings, G.O.'s sustained fear was reasonable.
When viewed in the light most favorable to the judgment, the entire record contains substantial evidence from which the juvenile court could find beyond a reasonable doubt that C.C. attempted to criminally threaten G.O. Because the majority concludes to the contrary, citing only one case that is not on point to the facts in the record here, I am compelled to dissent from Part II of the majority opinion.