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In Re K.S., A Person Coming Under the Juvenile Court Law. v. K. S

September 12, 2012

IN RE K.S., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
K. S., DEFENDANT AND APPELLANT.



(Super. Ct. No. JV126522)

The opinion of the court was delivered by: Blease , Acting P. J.

In re K.S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 October 2010, minor K.S., age 17, admitted that he was described by Welfare and Institutions Code section 602 in that he committed felony assault by means likely to produce great bodily injury (Pen. Code,*fn1 § 245, former subd. (a)(1), now subd. (a)(4); count one) and misdemeanor participation in a criminal street gang (§ 186.22, subd. (a); count four).*fn2 In exchange, counts of robbery (§ 211; count two) and assault by force likely to produce great bodily injury (count three) were dismissed along with allegations that the minor personally inflicted great bodily injury (§ 12022.7) in the commission of counts one and two. The court continued the minor as a ward, committed him to juvenile hall for time already served, ordered him into out-of-state placement, and imposed probation conditions including that he obey all laws and not associate with J.C.

In June 2011, the minor admitted an allegation that he had violated his probation by associating with J.C. An allegation that he had failed to obey all laws, in that he had committed burglary and had received stolen property, was dismissed in the interest of justice. The court revoked probation and committed the minor to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), for a maximum period of three years.

On appeal, the minor contends the juvenile court erred when it (1) committed him to DJF on the basis of "unproven" probation violations, specifically, the dismissed allegations of burglary and receiving stolen property and the admitted allegation that the minor had associated with J.C., and (2) failed to determine whether the count one offense of assault was a felony or a misdemeanor. We shall remand for the requisite determination.

FACTS

April 2010 Assault

When the victim and a witness walked out of a store, the minor and two other individuals began "mugging" them while stating "This is the STAR country."*fn3 A group of 15 people, including the minor, cornered the duo on a dead end street and encircled them. The duo stood back to back as all 15 suspects began punching and kicking them. The victim positively identified the minor as one who had kicked and punched him.

April 2011 Probation violation

The minor and J.C. were observed walking together approximately 50 yards from a residence that had just been burglarized.*fn4 J.C. was carrying a black bag. When an officer observed them and made a u-turn to approach them, both suspects immediately fled and jumped over fences in an effort to elude apprehension. They were caught while running through Executive Airport. The bag carried by J.C. contained a laptop computer that had just been stolen.

DISCUSSION

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