In re E.G. CA1/5

Filed 11/8/13 In re E.G. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A138253 v. E.G., (Contra Costa County Super. Ct. No. J13-00091) Defendant and Appellant.

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 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. BACKGROUND1 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

1 Due to appellant’s plea, our description of the underlying facts is taken primarily from the probation report.

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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