Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. J36997
Siggins, J.
L.L. appeals the jurisdictional findings of the juvenile court. He argues that his behavior during a class time incident in the school gymnasium did not disturb the peace, and there was no substantial evidence he possessed marijuana for sale. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
L.L. was in the gymnasium of Hogan High School during first period physical education class. Bryan Coughlan, a high school physical education teacher, instructed L.L. to leave the gymnasium and go to his assigned classroom. When Coughlan asked L.L. where he was supposed to be, L.L. responded, “Nowhere.” L.L. was agitated and defiant, he spoke with a raised voice and his body language was aggressive. He told Coughlan, “I’m not going anywhere.” Coughlan said he would call a campus supervisor if L.L. refused to leave and L.L. responded, “No, you’re not.” Although his friends urged him to leave the gym, L.L. refused and became more agitated. Within two minutes of the beginning of the confrontation, L.L. “was yelling pretty good.”
A campus supervisor arrived and tried to convince L.L. to leave voluntarily. L.L. refused and remained defiant. L.L. “was getting louder, and his body language became more agitated.” When Coughlan told L.L., “You need to go towards the door,” and stepped toward him, L.L. lunged towards Coughlan who was approximately three feet away. Coughlan feared for his safety and those around him. He attempted to restrain L.L. and directed him towards the doors leading out of the gym. L.L. resisted and as the campus supervisor approached, Coughlan pinned L.L. against the wall to avoid being struck. L.L. was cursing and told Coughlan to get his “fucking hands off of him.”
Because L.L. was agitated, Coughlan wanted to get him as far away as possible from the other students. Coughlan and the campus supervisor opened the doors to the gym and backed L.L. out. As they exited the gym, their feet became entangled and all three fell to the ground. Coughlan and the supervisor held L.L. down while L.L. yelled that he was going to come back with his uncle and kill Coughlan.
On cross-examination, Coughlan testified he did not recall whether he mentioned in his written incident report that L.L. threatened to kill him. Nor did he include information that L.L.’s friends had encouraged him to leave the gym.
When school resource Officer Matthew McCrea arrived, L.L. was “highly agitated,” and was yelling “Get off of me motherfucker” in a “very loud voice.” L.L. continued to resist after Officer McCrea joined the efforts to subdue him and he was eventually handcuffed. He was “[s]till very, very agitated, still yelling and cursing” when he was taken to the school office. After about 15 minutes, L.L. calmed down enough that Officer McCrea could speak with him. L.L. told McCrea he knew he was not supposed to be in the gym. Coughlan told McCrea that L.L. tried to push his way past him, but McCrea did not recall Coughlan saying that L.L. lunged at him.
In a separate incident the following month, Vallejo Police Officer Dwayne Walker was called to the vice principal’s office, where he saw L.L. and L.L. smelled strongly of fresh marijuana. In L.L.’s jacket pocket, Walker found a plastic baggie containing eight smaller bags of marijuana, with a total weight of 3.32 grams. L.L. had no pipe or smoking paraphernalia in his possession and did not appear to be under the influence of the drug. L.L. told Walker he was “hold[ing]” the marijuana for an unidentified friend and he denied selling it.
A juvenile wardship petition alleged L.L. possessed marijuana for sale, resisted arrest, and disturbed the peace by making a loud noise. At the contested jurisdictional hearing, the court heard testimony about both incidents. Officer Walker testified the small packages of marijuana found in L.L.’s pocket were known as “dime bags” and sold for $10 on the street. On cross-examination, Walker testified L.L. did not possess pay/owe sheets, a scale, a weapon, or large sums of cash, and could not recall if he had a cell phone. But he also testified that people selling dime bags of marijuana typically do not possess pay/owe sheets or scales, and “[t]here’s no reason to have individual bags if it’s for personal use.” Walker acknowledged it was not “impossible” for someone to have eight small bags of marijuana for personal use, but he had never encountered such a case.
Detective William Badour, who had extensive training and experience in investigating narcotics transactions, opined that L.L. possessed the marijuana for sale because L.L. possessed no smoking paraphernalia and it was individually packaged in small baggies containing equal amounts. On cross-examination, Badour acknowledged the marijuana could have been for personal use, but said he had never seen “eight baggies packaged like that for personal use.” A forensic toxicologist confirmed a sample from one of the baggies was marijuana.
Seventeen-year-old L.L. testified that he was not supposed to be in the gym at the time of the first incident, and said he ignored Coughlan until Coughlan grabbed him “for no reason” and tried to force him out of the gym. L.L. claimed he did not lunge at Coughlan and did not yell “Get off me motherfucker.” He said he raised his voice only after Coughlan grabbed him, and did not threaten Coughlan until he was “slammed . . . on the ground.” L.L. was upset that day “[b]ecause it was testing, and [he didn’t] like doing that.”
L.L. also testified he smoked marijuana at a friend’s house before walking to school on the day of the second incident. His friend gave him the marijuana “to hold it until he got home,” and L.L. intended to give the marijuana back to his friend after school. L.L. testified he did not intend to sell the marijuana.
The defense argued that the loud noise made by L.L. during the incident that began in the gym was perfectly reasonable under the circumstances as described in L.L.’s testimony and that the People had not proved beyond a reasonable doubt that the marijuana was possessed for sale. With regard to the first incident, the court noted it “was listening very carefully to the testimony,” and found Coughlan’s account more credible than L.L.’s. The court concluded that L.L. “maliciously and willfully disturbed another person by causing a loud and unreasonable noise,” and that a “[c]lear and present danger of immediate violence was also present.” The court observed that L.L. “was simply out of control and got more out of control as the situation escalated.”
With regard to the second incident, the court said it was “listening very carefully for the possibility that the marijuana was, in fact, held for personal use, or even as [L.L.] says, being held for someone else,” but concluded “[t]he packaging to me suggests beyond a reasonable doubt that the intent of this particular quantity of marijuana was to be sold and not to be consumed for personal use.” The court rejected the idea that L.L. “could be so foolish as to simply hold these packaged-for-sale dime bags of another individual for some unknown purpose,” and concluded beyond a reasonable doubt that L.L. possessed the marijuana for sale.
The resisting arrest count was dismissed on the People’s motion because a prosecution witness was unavailable.
L.L. was adjudged a ward of the court and placed on probation in his mother’s custody. He timely appealed.
DISCUSSION
A. Standard of Review
We view the evidence in the light most favorable to the prosecution and determine whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Catlin (2001) 26 Cal.4th 81, 139.) “ ‘ “[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends . . . .” ’ [Citation.] Thus, if the verdict is supported by substantial evidence, this court must accord due deference to the trier of fact and not substitute its evaluation of a witness’s credibility for that of the fact finder.” (People v. Barnes (1986) 42 Cal.3d 284, 303-304.) “The trier of fact, not the appellate court, must be convinced of the minor’s guilt, and if the circumstances and reasonable inferences justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment.” (In re James B. (2003) 109 Cal.App.4th 862, 872.)
B. Disturbing the Peace
Penal Code section 415, in relevant part, punishes with a misdemeanor “(2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. [¶] (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”
L.L. argues that his behavior in the gym was protected by the First Amendment because he did not present a clear and present danger of violence. We reject this argument for three reasons.
“When the word ‘noise’ in the statute is properly construed consistent with the First Amendment and traditional views, it encompasses communications made in a loud manner only when there is a clear and present danger of violence or when the communication is not intended as such but is merely a guise to disturb persons.” (In re Brown (1973) 9 Cal.3d 612, 619 [rejecting argument that statute was violated when petitioners engaged in loud shouting during a campus demonstration].) In such circumstances “[t]he use of the human voice to disturb others by the mere volume of the sound when there is no substantial effort to communicate or when the seeming communication is used as a guise to accomplish the disruption may be prohibited consistent with First Amendment guarantees.” (Id. at p. 621; see also People v. Superior Court (Commons) (1982) 135 Cal.App.3d 812, 816-817 [laughing and shouting in hotel hallway late at night created reasonable inference that residents were disturbed, and real party could have communicated with police in a normal tone of voice appropriate to the environment].)
The juvenile court’s finding that L.L. “maliciously and willfully disturbed another person by causing a loud and unreasonable noise” is supported by substantial evidence. From the initial question put to him by Coughlan, L.L.’s speech was defiant and devoid of any meaningful expression of ideas. Coughlan asked L.L. where he was supposed to be. He said, “Nowhere.” Coughlan told him that he needed to go to class and L.L. responded, “I’m not going anywhere.” Coughlan informed L.L. that he was going to call the campus supervisor and L.L. stated, “No, you’re not.” Both Coughlan and Officer McCrea testified that L.L. was continuously defiant and yelled and cursed in a loud voice. On these facts we have no difficulty concluding that L.L.’s speech was not communicative, but instead was only a guise to accomplish his disruption.
The court also found that L.L.’s behavior presented a “[c]lear and present danger of immediate violence.” The finding was supported by Coughlan’s testimony that L.L. lunged at him, and as a result Coughlan feared for his safety and the safety of others. He had to restrain L.L. to avoid being struck, and both Coughlan and Officer McCrea testified that L.L. remained very agitated and continued to struggle until he was subdued and in handcuffs. There was sufficient danger of immediate violence to sustain the charge that L.L. violated Penal Code section 415.
Finally, we decline L.L.’s invitation to dissect the episode in a way that analyzes his conduct in artificially separated stages. We do not consider his conduct reasonable in any way and do not consider the first amendment implicated on these facts. “[A]ll pupils enrolled in the state public schools have the inalienable right to attend classes on school campuses which are safe, secure and peaceful.” (Ed. Code, § 32261, subd. (a).) “[C]onduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” (Tinker v. Des Moines School Dist. (1969) 393 U.S. 503, 513.) The record as a whole contains substantial evidence to support the court’s finding that L.L. disturbed the peace. (See People v. Johnson (1980) 26 Cal.3d 557, 578.)
C. Possession of Marijuana for Sale
L.L. argues there was no substantial evidence that he possessed the marijuana with the intent to sell it. We disagree. As L.L. acknowledges, “[i]ntent to sell may be established by circumstantial evidence.” (People v. Harris (2000) 83 Cal.App.4th 371, 374.) Detective Badour testified as an expert that L.L. possessed the marijuana for sale because L.L. possessed no smoking paraphernalia and the marijuana was packaged in individual “dime bags.” Neither Detective Badour nor Officer McCrae had ever seen someone carry such a number of small packages for personal use. There was no need for evidence of additional indicia of possession for sale, such as a scale or pay/owe sheets. Substantial evidence supported the court’s finding that the marijuana was possessed for sale. (See People v. Douglas (1987) 193 Cal.App.3d 1691, 1695 [expert opinion that the facts of the case indicated marijuana was possessed for sale constituted substantial evidence to support conviction].)
Nor did the court improperly shift the burden of proof to L.L. to prove he did not possess marijuana with the intent to sell it. The court specifically found that the method of packaging showed beyond a reasonable doubt that L.L. possessed marijuana for sale. The court’s explanation why it rejected defendant’s testimony that he was holding the eight dime bags “for a friend” did not impermissibly shift the burden of proof. The court explained: “The marijuana itself, the packaging to me suggests beyond a reasonable doubt that the intent of this particular quantity of marijuana was to be sold and not to be consumed for personal use. . . . [¶] So it really comes down to whether I believe that [L.L.] could be so foolish as to simply hold these packaged-for-sale dime bags of another individual for some unknown purpose, or whether, in fact, since they were on his person, he himself was intending to sell them. [¶] I was hoping to hear some testimony as to why in the world he would hold these packages of marijuana for some other person. I thought if I heard a plausible explanation for that, that might very well raise a reasonable doubt as to whether this young man intended to sell [them] himself, but I heard no testimony other than a bare assertion that he was holding them for a person he refused to name. [¶] I even considered the possibility that his not naming this other person was out of some sense of loyalty as opposed to preventing someone from verifying his story and still thought that if I heard a plausible explanation for holding these baggies, I might find a reasonable doubt. Having heard no explanation for why someone would be so foolish as to do that, I am left beyond a reasonable doubt concluding that, in fact, the marijuana was for the purposes of sale found on the person of this young man. And with no explanation as to why he would be holding them for somebody else to sell, I do find that the charge of possessing them for purposes of sale is proven beyond a reasonable doubt.”
In context, the court’s statements show its belief in L.L.’s guilt beyond a reasonable doubt. The remarks about L.L.’s testimony explaining why and how he got the marijuana reflect an open mind and an opportunity the court afforded L.L. to provide a reason to question the evidence. There was no shifting of the burden of proof. (See People v. Cartier (1960) 54 Cal.2d 300, 313 [“where a judge’s statements as a whole disclose a correct concept of the law and its application, no secondary remarks should be deemed to have impeached his determination”].)
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: McGuiness, P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.