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In re J.M.

California Court of Appeals, Fifth District

June 24, 2019

In re J.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,
J.M., Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of Tulare County. No. JJD070875 Robert Anthony Fultz and Hugo J. Loza, Judges. []

          Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Tia M. Coronado and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.


          DETJEN, J.


         J.M., a minor, was adjudged a ward of the court pursuant to Welfare and Institutions Code section 602, following a finding he made a false report a bomb or other explosive device would be placed in his school, in violation of Penal Code section 148.1, subdivision (c).[1] The offense was designated a felony, and J.M. was placed on probation on various terms and conditions.

         In the published portion of this opinion, we hold that J.M.'s words were not protected by the First Amendment to the United States Constitution, and section 148.1, subdivision (c) is not unconstitutionally overbroad. In the unpublished portion, we hold J.M. is not entitled to reversal based on the prosecution's failure to establish the corpus delicti of the offense; but, as he was not properly notified of his right to seek deferred entry of judgment (DEJ), we must conditionally reverse and remand the matter for further proceedings.


         J.M. and A.B. attended school together and had known each other for 10 years.[2] On August 30, 2017, they had a conversation after school. Both were supposed to graduate that year, and A.B. asked if J.M. was going to graduate. J.M. said no, because he was behind on credits. He seemed a little upset about it. He was on his phone, but started talking to A.B. about how one day, he was going to “blow up the school, shoot it, ” and that he knew how to get an Army grenade.[3] A.B. thought he was joking, but she was not sure. He sounded very serious. She told her supervising teacher, “[b]ecause things like that are really serious.” The school was “like... [her] home so [she] wanted to protect everybody.”

         Visalia Police Officer Martinez responded to the school. When Martinez told J.M. the police had been informed he made some comments about blowing up the school, J.M. admitted saying that to A.B., but explained he was “completely joking” and did not intend to cause A.B. panic or concern. Asked how the statements came about, J.M. said he and A.B. were talking about graduation. When he looked at his cell phone, he did not have reception. That was when he made the comment about blowing up the school.

         Martinez asked if J.M. had any weapons in his residence; J.M. responded that his grandmother did, and he consented to a search of the home. He also consented to a search of his cell phone for his Internet search history. Martinez looked through weeks of the search history and found nothing of interest to the investigation. Likewise, nothing of interest was found in a search of J.M.'s room at his grandmother's house. The only weapons at the house belonged to his grandmother's late husband. They were under the bed. They were not loaded. The ammunition was in a separate closet.



         First Amendment

         J.M. contends his words were protected by the First Amendment to the United States Constitution, and so were not subject to criminal sanctions. We disagree.[4]

         “The First Amendment, applicable to the States through the Fourteenth Amendment, provides that ‘Congress shall make no law... abridging the freedom of speech.' The hallmark of the protection of free speech is to allow ‘free trade in ideas' - even ideas that the overwhelming majority of people might find distasteful or discomforting. [Citations.] Thus, the First Amendment ‘ordinarily' denies a State ‘the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence.' [Citation.]” (Virginia v. Black (2003) 538 U.S. 343, 358.)

         “Content-based regulations are presumptively invalid. [Citations.]” (R.A.V. v. St. Paul (1992) 505 U.S. 377, 382.) “The protections afforded by the First Amendment, however, are not absolute, and [the United States Supreme Court has] long recognized that the government may regulate certain categories of expression consistent with the Constitution. [Citation.] The First Amendment permits ‘restrictions upon the content of speech in a few limited areas, which are “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”' [Citation.] [¶] Thus, for example, a State may punish those words ‘which by their very utterance inflict injury or tend to incite an immediate breach of the peace.' [Citations.]... And the First Amendment also permits a State to ban a ‘true threat.' [Citations.]” (Virginia v. Black, supra, 538 U.S. at pp. 358-359.)

         In cases raising First Amendment issues, an appellate court is required to “make an independent examination of the record... to ensure that a speaker's free speech rights have not been infringed by a trier of fact's determination that the communication at issue” is subject to a criminal sanction. (In re George T. (2004) 33 Cal.4th 620, 632; see Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.)

         J.M. was found to have violated section 148.1, subdivision (c), which provides: “Any person who maliciously informs any other person that a bomb or other explosive has been or will be placed or secreted in any public or private place, knowing that the information is false, is guilty of a crime....” Because of the known dangers of bombs and other explosives, “section 148.1 has long prohibited various acts that exploit the public's fear of bombs, and that predictably provoke havoc and alarm. Together, subdivisions (a) and (b) of section 148.1 basically prohibit reports of bombs to law enforcement officials, emergency personnel, and communication and transportation outlets, where such reports are knowingly false when made. Subdivision (c) of section 148.1 prohibits other malicious acts of disseminating information known to be false about the presence of a bomb.” (People v. Turnage (2012) 55 Cal.4th 62, 72.)

         J.M. says that in order to place an utterance outside of First Amendment protection, “there must be a specific intent to communicate a threat or false information under circumstances where the communication is reasonably likely to cause disruption or sustained fear of harm.” He says his words must be evaluated as a false prediction of a future crime and not as a true threat.[5] He concludes: “Because it cannot be said that [J.M.] intended to communicate false information under circumstances where it was reasonably likely that the recipient would be in sustained fear and because the falsely uttered words did not by their nature have the inherent potential to cause alarm or disruption, [J.M.'s] utterance was protected by the First Amendment.”

         In In re M.S. (1995) 10 Cal.4th 698, the California Supreme Court construed section 422.6, a “hate crime” statute that prohibits any person from, by force or threat of force, willfully injuring, intimidating, interfering with, oppressing, or threatening another person because of the victim's actual or perceived gender, race, religion, sexual orientation, or similar characteristic. (Id., subd. (a); see § 422.55, subd. (a).) In upholding the statute against a First Amendment challenge, the court stated: “Under section 422.6, for a conviction based on speech alone, the prosecution must prove the speech itself threatened violence and the defendant had the ‘apparent ability' to carry out the threat.... [W]hether section 422.6 is violated in a given case should not depend on the robustness or susceptibility of the victim. We therefore construe the phrase ‘apparent ability' objectively, as implying the threat must be one that would reasonably tend to induce fear in the victim. [Citation.]” (M.S., supra, 10 Cal.4th at pp. 714-715.) The court found the statute required proof of a specific intent to interfere with a person's protected right, and that this requirement helped protect against unconstitutional application to protected speech. (Id. at p. 713.) Accordingly, the court declined to read into the statute a requirement of the threat's imminence or immediacy. (Id. at pp. 713-714.) It concluded: “As long as the threat reasonably appears to be a serious expression of intention to inflict bodily harm [citation], and its circumstances are such that there is a reasonable tendency to produce in the victim a fear the threat will be carried out [citation], the fact the threat may be contingent on some future event... does not cloak it in constitutional protection. [Citations.]” (Id. at p. 714.)

         In People v. Lowery (2011) 52 Cal.4th 419, the state high court considered a First Amendment challenge to section 140, subdivision (a), which criminalizes willfully using or threatening to use force or violence upon the person of a witness to or victim of a crime, because the witness or victim provided assistance or information to a law enforcement officer or prosecutor in a criminal or juvenile court proceeding. The defendant claimed statutes punishing verbal threats violate the First Amendment unless limited to threats made with the specific intent to intimidate the victim, something absent from section 140. (Lowery, supra, 52 Cal.4th at p. 426.) To ensure constitutionality of section 140, subdivision (a), the court construed it “as applying only to those threatening statements that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, ... rather than an expression of jest or frustration. The latter category carries First Amendment protection; the former does not. [Citation.]” (Lowery, supra, at p. 427.) The court concluded that, so construed, the statute did not violate the First Amendment. (Lowery, supra, at p. 427.)

         In our view, the absence of the requirements set out in the foregoing cases does not insulate J.M.'s words from criminal sanctions. Nor does evaluating those words as a false prediction rather than as a threat. This is made clear by Levin v. United Air Lines, Inc. (2008) 158 Cal.App.4th 1002 (Levin), which is discussed by both ...

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