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In Re Curtis S., A Person Coming Under the Juvenile Court v. Curtis S

April 19, 2013

IN RE CURTIS S., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CURTIS S., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Diego County, Carolyn M. Caietti and Browder Willis, Judges. (Super. Ct. No. JCM230237)

The opinion of the court was delivered by: Huffman, J.

CERTIFIED FOR PUBLICATION

Affirmed.

The District Attorney filed a petition in the juvenile court accusing Curtis S. (Minor) of petty theft (Pen. Code,*fn1 § 484; count 1) and assault (§ 240; count 2). (Welf. & Inst. Code, § 602.) It was further alleged the Minor disturbed another person by loud and unreasonable noise (§ 415, subd. (2); count 3) and used offensive words in a public place (§ 415, subd. (3); count 4).

Following a contested jurisdictional hearing, the court found the allegations as to counts 1 through 3 to be true and dismissed count 4. The Minor was declared a ward of the juvenile court and placed on probation.

The Minor appeals, contending for the first time on appeal there is insufficient evidence on count 3 that his speech created a clear and present danger of immediate violence, and thus the true finding on the count of disturbing another person with noise must be reversed for violation of his First Amendment rights. As to count 3, we find no such constitutional violation and the evidence supports the true findings. No arguments are made on appeal to challenge the true findings on counts 1 and 2, so we do not address those counts here. Accordingly, we affirm the judgment of the juvenile court.

STATEMENT OF FACTS

At the jurisdictional hearing, 14-year-old Jeffrey M. (Jeffrey) testified that around 3:47 pm on September 19, 2011, he was sitting outside his high school when class was over, doing his homework, with his phone lying on his lap. As he was sitting, the Minor ran up, grabbed Jeffrey's phone off his lap, said "thanks for the phone," and ran down the road. As the Minor ran down the road, Jeffrey chased after him and yelled, "that guy stole my phone."

Ana Lara also testified at the jurisdictional hearing. She stated she was driving by at the time, saw the Minor running, and heard someone yell "that boy just stole my phone." Lara did a U-turn and stopped her car in the Minor's path. She got out, confronted the Minor on the street by a swimming pool, and told him to give the phone back. The Minor claimed he did not have the phone and said he threw it near a construction site. During the conversation, the Minor became very angry and used profanity, calling Lara a "bitch" several times. Lara grabbed the Minor's wrist to detain him, but he jerked his hand away. He told her, "get back, you better get back. Step back." Lara heard the Minor call someone on his own cell phone and say, "you better get this lady, because I'm about to." The Minor then swung at Lara with his hand in a fist and Lara backed away, as she was afraid.

Denise Freeman, a witness to the confrontation between the Minor and Lara, also testified at the hearing. Both Jeffrey and Freeman said the Minor's behavior appeared to be very aggressive towards Lara, and his voice had an offensive and loud tone. Freeman heard the Minor direct profanity at Lara. Freeman testified Lara appeared upset and fearful and that Lara backed away from the Minor when he moved toward her.

During the confrontation, Jeffrey called the police to report the Minor's taking of his cell phone. Officer Gary Marshall testified at the hearing that when he arrived, the Minor appeared upset and was flailing his arms up and down. Marshall said that the Minor was using the " 'f' word" and the " 'n' word" quite a bit in an excited and agitated tone. The Minor was then taken to the police station.

Following a dispositional hearing, the Minor was placed on probation. He now appeals.

DISCUSSION

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