In re K.S.
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,[1] § 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).[2] 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.
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