In Re George T.

We consider in this case whether a high school student made a criminal threat by giving two classmates a poem labeled “Dark Poetry,” which recites in part, “I am Dark, Destructive, & Dangerous. I slap on my face of happiness but inside I am evil!! For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I’m BACK!!” For the reasons below, we conclude that the ambiguous nature of the poem, along with the circumstances surrounding its dissemination, fail to establish that the poem constituted a criminal threat.

I. Facts and Procedural History

Fifteen-year-old George T. (minor) had been a student at Santa Teresa High School in Santa Clara County for approximately two weeks when on Friday, *625 March 16, 2001, toward the end of his honors English class, he approached fellow student Mary S. and asked her, “Is there a poetry class here?” Minor then handed Mary three sheets of paper and told her, “[r]ead these.” Mary did so. The first sheet of paper contained a note stating, “These poems describe me and my feelings. Tell me if they describe you and your feelings.” The two other sheets of paper contained poems. Mary read only one of…

I concur in the result. To convict one of the felony offense of making a criminal threat, the prosecution must prove several technical and stringent elements. One of these is that the threat must have been, “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.” (Pen. Code, § 422, italics added.)

Applying the independent review standard proper for cases implicating First Amendment interests, I agree the evidence does not establish this specific element. The writing, in the form of a poem, that defendant handed to Mary S. and Erin S. said that the protagonist, “Julius AKA Angel,” “can be the next kid to bring guns to kill students at school.” (Italics added.) It did not say, in so many words, that defendant presently intended to do so. And the surrounding circumstances did not lend unconditional meaning to this conditional language.

That said, there is no question that defendant’s ill-chosen words were menacing by any common understanding, both on their face and in context. The terror they elicited in…

David Greene, Oakland; Ann Brick, San Francisco; Robert M. O'Neil, Joshua Wheeler, Charlottesville, VA; Michael Murphy, Munger Tolles & Olson, Los Angeles; Rohde & Victoroff, Stephen F. Rohde, Los Angeles; Joseph, Lichtenstein & Levinson, Burton Joseph; and Joan L. Bertin for J.M. Coetzee, Michael Chabon, Peter Straub, Harlan Ellison, George Garrett, Ayelet Waldman, Neil Gaiman, Jayne Lyn Stahl, Michael Rothenberg, Julia Stein, Greg Rucka, Floyd Salas, American Civil Liberties Union of Northern California, Feminists for Free Expression, First Amendment Project, Comic Book Legal Defense Fund, National Coalition Against Censorship, PEN American Center and PEN USA as Amici Curiae on behalf of Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, Stan M. Helfman, Violet M. Lee and Jeffrey M. Laurence, Deputy Attorneys General, for Plaintiff and Respondent.

MORENO, J.

We consider in this case whether a high school student made a criminal threat by giving two classmates a poem labeled "Dark Poetry," which recites in…