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Name: In re Ernesto H.
Case #: H026961
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/01/2004
Subsequent History: 3/2/05: rev. den.

A juvenile who verbally threatened a teacher was not entitled to First Amendment protection. The minor here responded to a teacher’s instructions by clenching his fists, stepping towards the teacher, and saying, “Yell at me again and see what happens.” A juvenile court found true an allegation that the minor had violated Penal Code section 71, which prohibits a person from attempting to cause a public employee from doing any act in the performance of his duties by means of a threat to inflict unlawful injury. On appeal, the minor argued that his statement had not constituted such a threat and was protected by the First Amendment. Finding that the minor had made a plausible First Amendment claim as defined in In re George T. (2004) 33 Cal.4th 620, the Court of Appeal conducted an independent examination of the record and concluded that the minor had made a criminal threat. The court noted that teacher had testified that he had felt afraid due to the minor’s clenched fists and threatening stance. Next, applying a substantial evidence standard, the court found sufficient evidence to support a finding that the minor had intended to influence the performance of the teacher’s official duties. Finally, the court rejected the minor’s argument that the juvenile court judge’s statements at the disposition contradicted his factual findings, and further found that the juvenile court properly found no good cause to excuse the late filing of a motion for reconsideration or new trial.