In re Daniel S

Filed 2/10/06 In re Daniel S. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Nancy C. Staggs, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Kelly Babineau, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

The juvenile court committed appellant Daniel S. to the California Youth Authority for a four year ten month maximum period of confinement after finding he made a misdemeanor criminal threat (Pen. Code,^[1] § 422; count 1), a misdemeanor threat to a public officer (§ 71; count 2), and a felony threat to an executive officer (§ 69; count 3). On appeal, Daniel contends his comment to a juvenile detention officer did not constitute a threat and was protected as free speech under the First Amendment to the United States Constitution. He also contends insufficient evidence supported counts 1 and 3. We will affirm the disposition.

BACKGROUND

Daniel was a cadet at a Madera County boot camp when he acted out of line on January 30, 2005. Program staff took Daniel outside and required him to perform different types of exercises to rehabilitate his behavior when he spit in the direction of Juvenile Detention Officer Francisco Rodriguez. Daniel told Officer Rodriguez, â€