Fare v. Zardies B.

Opinion

BROWN (Gerald), P. J.

Zardies B., a minor, appeals the order committing him to the. California Youth Authority (CYA).

On January 9, 1976, at about 9 a.m., Zardies and eight other boys stood outside a classroom at Wilson Junior High School, yelling and talking. The teacher in the classroom, Perriana Azevedo, asked them to leave. Zardies went into the classroom and when asked again by the teacher to leave, faced her at a foot’s distance and said in an angry and belligerent tone that he would “slap [her]... face in.” Although Azevedo did not think Zardies would carry out his threat, she thought he could have done so if he had wanted to. Zardies heeded Azevedo’s third request that he leave and continued his heckling from the hall. The class was disrupted for about 15 minutes. Zardies was charged and a true finding was made that he had threatened a public officer (Pen. Code, §71).

On appeal Zardies contends Penal Code section 71 is not intended to apply to this kind of situation and does not proscribe his conduct. Penal Code section 71 reads in part: “Every person who, with intent to cause, attempts to cause, or causes, any officer or employee of any public or private educational institution or any public officer or employee to do, or refrain from doing, any act in the performance of his duties, by means of a threat, directly communicated to such person, to inflict an unlawful injuiy upon any person or property, and it reasonably appears to the recipient of the threat that such threat could be carried out, is guilty of a public offense. . . .” Zardies suggests this section is aimed at prohibiting only threats connected with extortion or applies only to actions far more serious than what he terms is adolescent misbehavior. Prohibited, however, by the plain words of the statute, are direct threats of physical

[14]

injury which keep an employee of the public schools from doing his duty. Here Zardies prevented Azevedo from teaching and he tried to keep her from ejecting him from the classroom by threatening her with physical injury. His conduct falls within the prohibition of the statute.

Zardies argues that if he does come within the statute then the prosecution failed in this case to prove the necessary elements of the offense. He suggests that proof of a threat includes the intent to carry it out and obtain compliance. Or, he says the People should have the burden of showing there was an intent to carry out the threat even if there was no expectation of compliance. By Zardies’ own definition as set out in his brief: “A threat is variously defined as the ‘expression of an intention to inflict evil, injury, or damage on another, usually as retribution or punishment’ . . . and as the ‘expression of an intention to inflict loss or harm on another by illegal means and especially by means involving coercion or duress of the person threatened.’ ” (Webster’s Third New Internat. Dict. (1966 ed.).) This definition does not say anything about an intention to carry out the threat; rather an expression of one’s intent to cause harm by illegal means is all that is required.