In Re Ryan D.

Angry that an officer had cited him for possessing marijuana, Ryan D. (the minor) painted a picture of the officer and turned it in as a high school art class project a month later. The painting depicted the minor shooting the officer in the back of the head, blowing away pieces of her flesh and face. Finding it “scary,” the instructor took it to the assistant principal’s office. When the painting was shown to the officer, she became concerned about her safety.

The juvenile court found the minor made a criminal threat in violation of Penal Code section 422, and the minor admitted possessing more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)). He was made a ward of the court and placed on home probation.

On appeal, the minor contends the painting did not constitute a criminal threat. We agree for reasons that follow.

“Painters and poets . . . have always had an equal license in bold invention.” (Horace, Epistles, book III.) As an expression of an idea or intention, a painting—even a graphically violent painting—is necessarily ambiguous because it may use symbolism, exaggeration, and make-believe. The ambiguity may be resolved by the circumstances…