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In Re D.R., A Person Coming Under the Juvenile Court Law. v. D.R


December 22, 2010


(Del Norte County Super.Ct. No. JDSQ086030)

The opinion of the court was delivered by: Rivera, J.

In re D.R. CA1/4


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

D.R. appeals from a dispositional order of probation upon the juvenile court's finding that he was fishing without a license (Fish & G. Code, § 1054.2) and that he dissuaded a witness by force or threat (Pen. Code, § 136.1, subd. (c)(1)). He contends that the evidence is insufficient to support the court's finding that he dissuaded a witness. We affirm.


On December 17, 2009, a Welfare and Institutions Code section 602 petition was filed alleging that D.R. violated probation by fishing without a license.*fn1 On January 21, 2010, D.R. waived his rights to a hearing on the petition and stipulated that on December 13, 2009, he was fishing without a license. On the same date, the court held a jurisdictional hearing on a supplemental petition for a more restrictive placement pursuant to Welfare and Institutions Code, section 777, subdivision (a) alleging that D.R. violated probation by dissuading a witness, committing vandalism, and committing assault.

The evidence adduced at the hearing showed the following: On the evening of January 9, 2010, D.R. was at home with his mother, G.R. G.R.'s husband and other son, B.R., were outside helping Jeremy, a friend, with a trailer. D.R. was angry with Jeremy, and threatened to "break out [the trailer's] windows if you guys were right. And that's what I'm gonna [sic] do because I promised it to you." G.R. saw D.R. with a pistol, shooting at the windows of the trailer. Fifteen minutes later, she saw him ransacking the bedroom; D.R. told her that he was looking for his pellet gun. He then went into the kitchen and found a hatchet and hit the counter with it. He went to the living room and set the hatchet down on the couch arm. He said that if B.R. had called the cops, "I'm gonna [sic] beat [B.R.] halfway to death." He then said, "I'll start swinging this if the cops come."

Deputies Ortega and Lee responded to the scene and detained D.R. They spoke with G.R. who gave them the hatchet and told them that D.R. said that if anyone called the police, he was going to "chop their heads off." She later denied that D.R. made a threat or that she said anything about calling the police. G.R. was afraid that D.R. might get it in his mind to carry out his threat to use the hatchet. She said D.R. told her that he was going to beat B.R. "halfway to death" or beat him to death if he called the police. G.R. further told Ortega that she was scared because D.R. sometimes did not take his medication. Lee testified that D.R. was drunk and under the influence of alcohol. A preliminary alcohol screening (PAS) test revealed a blood alcohol level of .15.

The court sustained the allegation that D.R. dissuaded a witness but, on the People's motion, dismissed the other counts.


D.R. contends that the evidence was insufficient to support the finding that he dissuaded a witness because his emotional outburst did not convey an intent that his statement be conveyed to B.R. or that he dissuade his mother from calling the police. We disagree.

As the Attorney General points out, this is a case involving a juvenile probation revocation pursuant to Welfare and Institutions Code section 777. "Section 777 . . . has long allowed the juvenile court to modify disposition by ordering a more restrictive placement for a person previously found to have committed a criminal offense under section 602." (In re Eddie M. (2003) 31 Cal.4th 480, 489.) The statute provides that "[t]he facts alleged in the notice shall be established by a preponderance of the evidence at a hearing to change, modify, or set aside a previous order. The court may admit and consider reliable hearsay evidence at the hearing to the same extent that such evidence would be admissible in an adult probation revocation hearing . . . ." (Welf. & Inst. Code, § 777, subd. (c).) "[B]ecause both juvenile and adult probation violation proceedings differ from criminal prosecutions in purpose, operation, and effect, juvenile probation violations, like their adult counterparts, can constitutionally be proven under section 777(c) by a preponderance standard insufficient for conviction of a charged crime." (Eddie M., at p. 486.)

Under the preponderance of the evidence standard, the record amply supports the court's finding. Penal Code section 136.1, subdivision (c)(1) makes it a felony to "knowingly and maliciously" by a threat of force or violence, attempt "to prevent or dissuade another person who has been a victim of a crime or who is a witness to a crime from" making a report of that victimization to any law enforcement officer. There is no requirement that the defendant use specific words in order to commit the offense. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344.)

Here, G.R. testified that D.R. threatened to swing the hatchet or chop their heads off if anyone called the police. She testified that she was scared and afraid of D.R., that he was drunk, and in that condition he was unpredictable. As the court found, the evidence showed that D.R. made threats to use force or violence, i.e., the hatchet, to dissuade G.R. and B.R. from calling the police. On this record, the evidence supports the court's finding.

Relying on People v. Ford (1983) 145 Cal.App.3d 985 (Ford), D.R. argues that he did not have the specific intent to dissuade a witness because his statements were merely emotional outbursts. D.R.'s reliance on Ford is misplaced.

In Ford, the defendant yelled, " 'You punk mother fucker, we'll get you, you've got kids' " to a witness who had just testified against him and two others at a preliminary hearing. (Ford, supra, 145 Cal.App.3d at p. 987.) The court determined that the evidence was sufficient to support the verdict of dissuading a witness from testifying by means of a threat but reversed the conviction because the jury was not instructed that the offense was a specific intent crime. (Id. at pp. 988-990.)

Here, there was no instructional error, and we must presume that the juvenile court, as the trier of fact, applied the correct statutory and case law. (Evid. Code, § 664; People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1070, fn.13.) The record establishes that D.R.'s statements were more than mere emotional outbursts. His words, together with the evidence that he was armed with a hatchet, supported the court's finding that D.R. committed the offense of dissuading a witness by means of a threat of violence.


The order is affirmed.

We concur:

REARDON, Acting P.J.


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