Filed 4/19/13

                           CERTIFIED FOR PUBLICATION



                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA


In Re Curtis S., a Person Coming Under the
Juvenile Court Law.
                                              D062081
THE PEOPLE,

        Plaintiff and Respondent,              (Super. Ct. No. JCM230237)

        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. Affirmed.



        Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant

and Appellant.

        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Theodore M.

Copley, Deputy Attorneys General, for Plaintiff and Respondent.
       The District Attorney filed a petition in the juvenile court accusing Curtis S.

(Minor) of petty theft (Pen. Code,1 § 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



1      Statutory references are to the Penal Code unless otherwise specified.
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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



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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

                                               I

           THE MINOR'S FIRST AMENDMENT CLAIM HAS BEEN FORFEITED

       On appeal, the Minor claims insufficient evidence supports the true finding on the

count of disturbing another person by loud and unreasonable noise. He argues the

purpose of his speech was to communicate and the speech is protected by the First

Amendment. The Minor relies on In re Sheena K. (2007) 40 Cal.4th 875, for the

proposition the claim is a pure question of law, easily addressed without reference to

particulars in the sentencing record, and may be raised for the first time on appeal. We

disagree.

       As the United States Supreme Court recognized in United States v. Olano (1993)

507 U.S. 725, 731, " '[n]o procedural principle is more familiar . . . than that a

constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as

civil cases by the failure to make timely assertion of the right before a tribunal having

jurisdiction to determine it.' " (See In re S.B. (2004) 32 Cal.4th 1287, 1293.) "The

purpose of this rule is to encourage parties to bring errors to the attention of the trial

court, so that they may be corrected." (Ibid.)



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       The present appeal, rather than involving a pure question of law, requires a fact-

based analysis to determine whether the speech was predominantly communicative, or

whether it presented a clear and present danger of imminent violence and was a guise for

disruption. (See In re Brown (1973) 9 Cal.3d 612, 621.) There is no reason apparent in

this record to excuse the Minor's failure to raise this constitutional claim at his

jurisdictional hearing. The Minor was represented by counsel at the hearing. If he felt

the evidence was insufficient to find his speech created a clear and present danger of

immediate violence rather than being merely communicative, he could have objected to

the admission of that evidence and the experienced juvenile court judge could have

addressed the issue. This type of objection must be raised at trial if it is to be cognizable

on appeal, and we would be justified in treating the challenge as waived. We exercise

our discretion, however, to address its merits.

                                              II

THE JUVENILE COURT PROPERLY FOUND THERE WAS SUFFICIENT EVIDENCE
    THE MINOR'S SPEECH CREATED A CLEAR AND PRESENT DANGER OF
                       IMMEDIATE VIOLENCE

                              A. Applicable Legal Principles

       Where an appeal arguably implicates First Amendment interests, "a reviewing

court should make an independent examination of the record . . . to ensure that a speaker's

free speech rights have not been infringed by a trier of fact's determination." (In re

George T. (2004) 33 Cal.4th 620, 632.) This principle has general application and is not

limited to a specific type of charge, such as criminal threats. (Id. at pp. 633-634.)



                                               5
          Even though the Minor essentially forfeited his claim by failing to raise it in the

juvenile court, this First Amendment claim may nevertheless be addressed on its merits.

The Minor mainly contends his speech was communicative and thus, his conviction

under section 415, subdivision (2) violates his First Amendment rights. Section 415,

subdivision (2) makes it a crime for any person to "maliciously and willfully disturb[]

another person by loud and unreasonable noise." Loud "noise," under the statute,

encompasses communications made in a loud manner (1) where there is a clear and

present danger of imminent violence and (2) where the purported communication is used

as a guise to disrupt lawful endeavors. (In re Brown, supra, 9 Cal.3d at p. 621.)

          The First Amendment provides that "Congress shall make no law . . . abridging the

freedom of speech." The Supreme Court has recognized, "the protections afforded by the

First Amendment, however, are not absolute, and . . . the government may regulate

certain categories of expression consistent with the Constitution." (Virginia v. Black

(2003) 538 U.S. 343, 358.) Words may be restricted under the First Amendment where

they are " ' "of such slight social value as a step to truth that any benefit that may be

derived from them is clearly outweighed by the social interest in order and morality." ' "

(Id. at pp. 358-359, citing R.A.V. v. City of St. Paul (1992) 505 U.S. 377, 382-383.) The

California Supreme Court has likewise recognized there is a fundamental difference

between loud communications, or the use of loud shouting, uttered not to inform or

persuade, but to disrupt lawful endeavors. (In re Brown, supra, 9 Cal.3d at p. 621.) Loud

shouting designed to disrupt rather than communicate may be prohibited generally.

(Ibid.)

                                                6
                                       B. Analysis

       Using an independent review of the juvenile court's findings (In re George T.,

supra, 33 Cal.4th at p. 632), we conclude the evidence supports the conclusion that

section 415, subdivision (2) was violated. The Minor's speech presented a clear and

present danger of imminent violence and was designed to disrupt a lawful endeavor. The

record establishes Lara was reasonably attempting to stop the Minor from escaping after

he was accused of committing a theft. Lara became frightened by the Minor's shouting

and obscene language, and she backed away from the Minor when he began threatening

her. When Lara tried to apprehend the Minor, he told her to "get back, you better get

back." Additionally, the Minor was seen swinging his fist at Lara as he was yelling

profanities at her and calling her a "bitch." The Minor's call to an unknown individual,

stating that "someone needs to get this lady," provides further evidence from which a

reasonable trier of fact could have inferred his speech presented a clear and present

danger of imminent violence, and the court impliedly made such findings.

       On this record, the Minor cannot establish his speech was within the protected

range of the First Amendment. The loud shouting of obscenities and threats was

disruptive, rather than communicative in nature. If the Minor had intended only to

communicate his desire to be left alone, he could have done so in a different tone of voice

more appropriate to the scene on a street by a swimming pool in the afternoon. The only

evidence of the Minor calling for help or feeling threatened was his statement to an

unknown individual on his own cell phone that someone needed to "get this lady."

Lara's, Jeffrey's, and Freeman's testimony established the Minor's tone was loud, angry,

                                             7
aggressive, and disruptive. The facts established by the evidence demonstrate that the

Minor intended to and did create a disturbance by making loud noises, shouting

obscenities, and making threats, and that the purported communication was used as a

guise to that end. No basis for reversal of the count 3 portion of the judgment has been

shown.

                                     DISPOSITION

      The judgment is affirmed.




                                                                           HUFFMAN, J.

WE CONCUR:



             BENKE, Acting P. J.


                      HALLER, J.




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