I am sure that many of you have heard of the news that a 5-year old was suspended for one day from his school in Modesto, California, for making a terroristic threat.

The reason? When a Great Valley Academy school teacher asked the child to take his backpack off, he responded that he couldn’t because if he did, it would explode. Of course, when the teacher looked inside the backpack, there was no tick, tick, tick of a timer, no lit fuse, no trip wires, and for goodness sake certainly no bomb! Yet he was suspended.

The Case of the 5-Year Old Who Made a Bomb Threat: Capacity to Commit a Crime

Initially, his parents were told that Jackson Riley was suspended for violating the school code of conduct, but when his parents pointed out that the code states it only applies to 4th through 12th grade students, the school administration changed the reason to making a terroristic threat.
The accusation raises the legal issue of capacity because most people know that a 5-year old is still living in a world of magic and make believe and is still learning about right and wrong.
In law, when asking about capacity, we are asking about whether a person is capable of doing some act, such as signing a will, testifying at a trial, or committing a crime, to name a few. In the Jackson’s case, the question is about that last one.
Does a 5-year, as a matter of law, have the capacity to commit a crime? A fun starting place to answer that question is by finding out what constitutes a terroristic threat under California law?
A person is guilty of making a terroristic threat when they threaten a person with death or great bodily injury and the threat is so unequivocal, immediate, and unconditional, that the person against whom it is made actually believes it will be carried out. A person is guilty of this crime ­whether or not the person who made it actually intended to do so. (Penal Code section 422)
That underlined section makes this story even more bizarre because to be guilty of the crime you don’t even have to intend on actually hurt anyone, you just have to make the threat under circumstances where the threatened person actually believes you. This means that Jackson could be guilty of a terroristic threat even though there was no bomb.
But does he have the capacity to commit the crime? The word “capacity” in this context has a legal definition and depending on the circumstance, the definition can be different. For instance, if we are talking about the capacity of a person to testify, then the definition of capacity is that the person know right from wrong, true from false, have the ability to recall the events testified to. However, for the purposes of the capacity to commit a crime we look to Penal Code section 26 for the definition.
That codes simply states that all persons are capable of committing crimes except children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness. So, capacity in the Jackson’s case comes down to whether the little tyke knew it was wrong to tell the teacher his backpack would explode if he took it off.
To analyze the situation, we must first assume, per Penal Code section 26, that he did not have the capacity to commit the crime. However, if he were to be put on trial, then the prosecutor would try and overcome that assumption by proving that the Notorious Modesto Jackson knew he was wrong when he threatened that his backpack would explode.
To do this, the prosecutor would have to present evidence proving little Jackson has the experience and understanding, despite being only 5-years old, to have known it was wrong to make the make the statement that his backpack would explode if he took it off. The way this would be done would be to poor over Jackson life to show he had the experience to know wrongfulness.
For instance, evidence of past criminal convictions and past incidences of making the same threat would be relevant. The district attorney may be able to have the judge order psychological evaluation. A psychologist’s opinion would be very relevant on the issue of whether Jackson had the intellect to understand right from wrong.
However, the reality is, very few people, if any, are going to believe that a 5-year old could commit a crime. Plus, can you imagine if Jackson were placed on trial for committing a terroristic threat? I can.
Judge: “You may now cross examine the witness.”
Prosecutor: “May I call you the Notorious Modesto Jackson?”
Justin Milligan, Fiumara & Milligan Law attorney: “Objection – prejudicial!!!”
Jackson: “Sure! I would like that.”
Judge: “Don’t answer the question, son, until I’ve ruled on the objection.”
Jackson: “Okay.”
Judge: “Overruled, I like the sound of Modesto Jackson too. Prosecutor, you may continue.” (An audible groan can be heard from the defense table, earning a sharp look from the judge.)
Prosecutor: “You knew it was wrong to say your backpack would explode, didn’t you, Mr. Notorious Modesto Jackson?”
Jackson: “No.”
Prosecutor: “You didn’t know it was wrong, Mr. Notorious?”
Justin: “Objection, argumentative.”
Judge: “Overruled. You may answer the question.”
Jackson: “No. It wasn’t wrong because I’m a hero.”
Prosecutor: “For goodness sakes, Modesto Jackson! What do you mean by that?”
Jackson: “If I had taken the backpack off, it would have exploded and hurt my teacher so I was going to go outside to take if off there so everyone else could live.”
Which is exactly the point his parents made in the Modesto Bee article about him. http://www.modbee.com/latest-news/article174321526.html.
For more info relating to Juvenile Crimes, please CLICK HERE
At Fiumara & Milligan Law, we handle all criminal defense law matters throughout Sonoma County, Marin County and the entire North Bay.
Call us today at 707-571-8600 OR 415-492-4507. We have two conveniently located offices in Santa Rosa in Sonoma County and in San Rafael in Marin County. 
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Michael A. Fiumara

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