In Re Ernesto H.

A public school physical education teacher saw a student acting as a lookout for two classmates attempting to fight. As the teacher approached, the student warned the classmates. The teacher directed the student not to act as a lookout and to move to another area. Stepping toward the teacher with clenched hands at his side, the student replied, “Yell at me again and see what happens.”

A juvenile court found true the allegation that the student violated Penal Code section 71, which prohibits a person from attempting to cause a public employee to refrain from doing any act in the performance of his duties by means of a threat to inflict unlawful injury. On appeal, the student argues that his words did not constitute such a threat.

We are called upon in this case to interpret the standard of review pursuant to the recent California Supreme Court decision of In re George T. (2004) 33 Cal.4th 620 [ 16 Cal.Rptr.3d 61 , 93 P.3d 1007 ] (George T.). Here, because the minor raises a “plausible First Amendment defense,” we make an “independent examination of the record” in accord with George T., “to ensure that the speaker’s free speech rights have not been infringed by the trier…