In re E.G.

 

 

 

 

 

 

 

 

Filed 11/8/13  In re E.G. CA1/5

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 

 

 
>

>In re E.G., a Person Coming Under the Juvenile Court Law.
>THE PEOPLE, >            Plaintiff and Respondent, >v. >E.G., >            Defendant and Appellant.	A138253         (>Contra> Costa >County>       Super. >Ct.> No. J13-00091)

 

            E.G.
appeals from an order declaring him a ward of the juvenile court and placing
him on probation after he pled no contest to allegations he had committed href="http://www.mcmillanlaw.com/">battery causing serious bodily injury
and grand theft from the person of another. 
(Welf. & Inst. Code, § 602; Pen. Code, §§ 243, subd.
(d), 487, subd. (c); Cal. Rules of Court, rule 5.778(e).)  We reject his challenge to gang-related
probation conditions imposed by the court, but agree the case must be remanded
so the court can determine whether the commitment offenses should be declared
felonies or misdemeanors.

BACKGROUNDhref="#_ftn1" name="_ftnref1" title="">[1]

            On
January 10, 2013, 16-year-old
appellant took his father’s truck without permission and was driving with a
friend Miguel G. in Pittsburg.  They stopped the truck and chased 17-year-old
Mario R., who was walking down the street. 
When they caught up to Mario, they demanded his shoes and punched him
repeatedly, causing him to fall against a fence and break his arm.  The attack continued while Mario was on the
ground, until Miguel took one of Mario’s shoes and he and appellant fled.  Mario walked toward his home, crying and in
pain, until emergency personnel arrived.

            Police
officers went to appellant’s home about a week later and located Mario’s stolen
shoe in appellant’s mother’s car.  During
a search of appellant’s bedroom, photographs were found indicating appellant
and Miguel were involved in the “Hello Kitty Gang.”  The officers also discovered photographs of
appellant and Miguel displaying hand signals, and photographs of hand signals
in front of guns displayed on a bed.  Live
ammunition was found in a backpack in appellant’s room.  Appellant’s father explained he and his son
were both licensed and trained hunters.

            After
being read his rights under Miranda v.
Arizona (1966) 384 U.S. 436, appellant told the police he had been driving
his father’s truck and followed Mario to a nearby parking lot.  He admitted assaulting Mario, though he noted
Miguel had assaulted him first and had taken the shoe.  Appellant said the guns in the photographs
were used by him and his father for hunting and that he and Miguel were the only
members of the Hello Kitty Gang.

            A
juvenile wardship petition was filed alleging appellant had committed a second
degree robbery and assault by means of force likely to cause great bodily
injury.  (Pen. Code, §§ 211, 212.5,
subd. (c), 245, subd. (a)(4).)  The
petition was amended to add counts of battery causing serious bodily injury and
grand theft from the person of another. 
(Pen. Code, §§ 243, subd. (d), 487, subd. (c).)  Appellant entered a no contest plea to these
new allegations and the robbery and assault counts were dismissed.

            The
probation report prepared for the dispositional
hearing noted appellant had “explained the ‘Hello Kitty Gang’ as something
that he and the co-defendant started as a way of meeting girls.  [Appellant] said they wore clothing and
jewelry with the pink logo, and invented a hand sign.  He said it is not a ‘serious’ gang
affiliation; they are not involved in criminal
activity.”  Appellant told the
probation officer he had known Mario from previous conflicts and blamed him for
“disrespecting” appellant’s cousin.  According to the report, appellant had “begun
to delve into the amateur gang lifestyle[.]” 
Gang conditions were recommended as part of the probation order, as was
a nine-month commitment to the Orin Allen Youth Rehabilitation Facility.  The court placed appellant on probation on the
terms recommended.  It set the maximum
period of confinement at four years, eight months and ordered appellant to
provide “a collection of specimen samples and print impressions” under Penal
Code section 296.1.

DISCUSSION

I.  Gang
Terms as Condition of Probation

            Appellant
challenges four of the gang conditions as unreasonable, arguing the commitment
offenses were not gang-related and there was no evidence he was at risk of
becoming involved in a gang.href="#_ftn2"
name="_ftnref2" title="">[2]  We disagree.

            Welfare
and Institutions Code section 730, subdivision (b) empowers a juvenile court to
“impose and require any and all reasonable conditions [of probation] that it
may determine fitting and proper to the end that justice may be done and the
reformation and rehabilitation of the ward enhanced.”  “In fashioning the conditions of probation,
the juvenile court should consider the minor’s entire social history in
addition to the circumstances of the crime.” 
(In re Walter P. (2009) 170
Cal.App.4th 95, 100.)  “A condition of
probation which is impermissible for an adult criminal defendant is not
necessarily unreasonable for a juvenile receiving guidance and supervision from
the juvenile court.”  (>In re Todd L. (1980) 113 Cal.App.3d 14,
19.)

            The
juvenile court’s power to set probation conditions is broad, so that it can
serve its function of rehabilitating wards and furthering the goals of the
juvenile court system.  (>In re R.V. (2009) 171 Cal.App.4th 239,
246 (R.V.).)  A condition of probation will not be held
invalid unless (1) it has no relationship to the crime for which the juvenile
was adjudicated a ward; (2) it relates to conduct that is not itself criminal;
and (3) it requires or forbids conduct that is not related to future
criminality.  (Ibid.)  “Where a court
entertains genuine concerns that the minor is in danger of falling under the
influence of a street gang, an order directing a minor to refrain from gang
association is a reasonable preventive measure in avoiding future criminality
and setting the minor on a productive course.” 
(In re Laylah K. (1991) 229
Cal.App.3d 1496, 1502; disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2.)  The minor need not actually have joined a
gang for the condition to be reasonable, as there is “no logical or beneficial
reason to require a court to wait until a minor has become entrenched with a
gang, only then to apply mere prophylactic remedies.”  (Id.
at p. 1501.)  Even the minor’s current
connection to a gang is not critical in determining whether gang conditions are
appropriate.  (People v. Lopez (1998) 66 Cal.App.4th 615, 624.)

            Appellant
argues gang conditions were unreasonable because his attack upon Mario was not gang-related
and the only evidence concerning the nature of the Hello Kitty Gang was his
claim that Hello Kitty was comprised of only two individuals who were trying to
meet girls.  The juvenile court did not
believe his explanation: “Well, it’s not accurate that there’s no evidence [to
support the gang conditions].  On Page 7,
line 13 [of the probation report], the minor said it’s quote ‘not a serious
gang affiliation.’  There is some
evidence.  He gave his interpretation of
what he meant by ‘Hello Kitty Gang,’ but he also said it ‘was not a serious
gang affiliation.’  So I read that to
mean it is a gang affiliation but it’s not serious, if I believe his statement
of what it actually is.”  The court
additionally stated, “I think there’s more than enough evidence here to suggest
that he is in a gang, that Hello Kitty is not just a way of meeting girls.  I don’t accept that explanation at all.  I think with the photographs, as well,
there’s some – clearly a link to between gangs and firearms and I think that
link is here.”

            We
review the gang conditions in this case under the deferential abuse of
discretion standard, under which reversal is appropriate only if the court’s
order was arbitrary, capricious or exceeds the bounds of reason.  (R.V.,
supra, 171 Cal.App.4th at p. 246; >People v. Carbajal (1995) 10 Cal.4th
1114, 1121.)  The court in this case did
not abuse its discretion.  Even if the
Hello Kitty Gang did not meet the statutory requirements for a criminal street
gang, appellant’s emulation of gang behavior -- throwing gang signs in front of
firearms, taking photographs to memorialize such conduct -- shows he was at
risk of traveling down a path leading to gang involvement.  We stress that this is not merely a situation
in which law-abiding teen is drawn to the music, clothing styles or slang of
gang culture.  Here, appellant participated
in a violent two-on-one attack of another youth, having characterized his
affiliation with his cohort in that attack as a “gang.”  He admittedly had access to guns in his
household and had glamorized those weapons in photographs evoking gang
memorabilia.  The juvenile court could
reasonably conclude gang conditions were necessary to limit appellant’s
association with individuals and organizations likely to encourage future href="http://www.fearnotlaw.com/">criminal conduct.

II.  Declaration
that Offenses were Misdemeanors or Felonies

            Appellant
argues the case must be remanded so the court can expressly determine whether
his two commitment offenses were misdemeanors or felonies.  The Attorney General agrees.

            Welfare
and Institutions Code section 702 states, in relevant part: “If the minor is
found to have committed an offense which would in the case of an adult be
punishable alternatively as a felony or a misdemeanor, the court shall declare
the offense to be a misdemeanor or felony.” 
This statute imposes a mandatory duty on the juvenile court to make the
requisite declaration when disposing of so-called “wobbler” offenses.  (In re
Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy
W.); see Pen. Code, § 17.)  Appellant’s
two commitment offenses, battery with serious bodily injury and grand theft
person, are wobblers alternatively punishable as a misdemeanor or felony.  (Pen. Code, §§ 243, subd. (d); 487,
subd. (c), 489, subd. (b); 1170, subd. (h); People
v. Wilkinson (2004) 33 Cal.4th 821, 830-831; Davis v. Municipal Court (1988) 46 Cal.3d 64, 70.) 

            The
juvenile court in this case did not make an explicit determination as to
whether the commitment offenses would have been misdemeanors or felonies if
committed by an adult.  We cannot infer
such a determination from the amended juvenile petition, the minute order, or
the court’s setting of a felony-level period of confinement.  (Manzy
W., supra, 14 Cal.4th at pp.
1208-1209.)  Because the record does not
demonstrate the court was aware of and exercised its discretion to determine
the misdemeanor or felony nature of the offenses, remand is required for this
purpose, at which time the court must recalculate appellant’s maximum period of
confinement, if necessary.  (>Id. at p. 1209-1211.)  Pending remand, the order requiring appellant
to provide physical body samples and print impressions is stayed, as such
samples are not required for appellant’s commitment offenses if they are
declared misdemeanors.  (>In re Nancy C. (2005) 133 Cal.App.4th
508, 511-512.)

DISPOSITION

            The
matter is remanded to the juvenile court for further proceedings in accordance
with this opinion.

 

                                                                                                _________________________

                                                                                                Needham,
J.

 

We concur:

 

_________________________

Simons, Acting P.J.

 

_________________________

Bruiniers, J.