In re Erik A.

Filed 11/14/01
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re ERIK A., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
ERIK A.,
Defendant and Appellant.
F037575
(Super. Ct. No. 13749)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Roger L.
Wayne, Judge.
Susan C. Diamond, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Jo Graves, Senior Assistant Attorney General, John G. McLean, Deputy
Attorney General, for Plaintiff and Respondent.
*Before Levy, Acting P.J., Cornell, J., and Polley, J.†
†Judge of the Tuolumne Superior Court, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.

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-ooOoo-
On October 30, 2000, the juvenile court found true allegations in a petition filed
pursuant to Welfare and Institutions Code section 602 that Erik A. fought in public (Pen.
Code, § 415.1) in order to further a criminal street gang (Pen. Code, § 186.22, subd. (d)).
The juvenile court found the offense to be a misdemeanor. Erik was placed on probation
upon various terms and conditions, including that he not obtain any tattoos, burns, or
voluntary scarring.
On appeal, Erik contends the juvenile court erred in using Penal Code section
186.22, subdivision (b) because it only applies to felony or wobbler offenses, not to
simple misdemeanor offenses. Erik also contends the probation condition that he not
obtain any tattoos, burns, or voluntary scarring is overbroad and violates his
constitutional right to free speech.
FACTS
Eddie Murphy, a safety officer with Madera Unified School District, was
patrolling the hallway of the English building at Madera High School at 9:00 a.m. on
August 28, 2000. Murphy saw Erik and Miguel I. fighting in the hallway. Murphy
separated the two. Miguel told Murphy that Erik threw the first punch. Murphy took
Erik and Miguel to Officer Anderson who read Erik his Miranda rights.1 Anderson
explained that Erik was wearing a red belt and had his hair in a ponytail. Miguel was
wearing a blue belt. Anderson thought Erik and Miguel were associated with gangs.
Miguel had called Erik “a fuckin’ scrap and a sur rat” prior to the fight. Anderson
believed the blue belt, which was actually a handkerchief, found on Miguel also indicated
gang affiliation.
Damon Wasson, a police officer with the Madera Police Department, testified as
an expert on gang association. Wasson knew Erik and had reviewed Erik’s school
1 Miranda v. Arizona (1966) 384 U.S. 436.

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records and police reports. Wasson opined Erik was a member of the Norteno gang and
found significance in the red belt he was wearing because Norteno gang members wear
red clothing. Nortenos fight Surreno gang members, who wear blue clothing. Wasson
explained that when Miguel called Erik a “fuckin’ scrap, a sur rat,” Miguel was inviting
Erik to fight. Wasson further opined that the fight was a gang-related fight.
GANG AFFILIATION ENHANCEMENT
Erik contends the finding that he violated Penal Code section 186.22, subdivision
(d) must be reversed as a matter of law.2 Erik argues this Penal Code section requires the
underlying offense to be a so-called wobbler offense which can be either a felony or a
misdemeanor. Erik asserts that his conviction for fighting in public is only a
misdemeanor and, therefore, Penal Code section 186.22, subdivision (d) does not apply to
his offense.
This issue was recently addressed in Robert L. v. Superior Court (2001) 90
Cal.App.4th 1414, 1417-1423. The Robert L. court found Penal Code section 186.22,
subdivision (d) applies to felonies, wobbler offenses, and misdemeanors. (Id. at pp.
1422-1423.) We concur with the reasoning of Robert L. and apply its holding to the
instant action.
2 Penal Code section 186.22, subdivision (d) states: “Any person who is convicted
of a public offense punishable as a felony or a misdemeanor, which is committed for the
benefit of, at the direction of or in association with, any criminal street gang with the
specific intent to promote, further, or assist in any criminal conduct by gang members,
shall be punished by imprisonment in the county jail not to exceed one year, or by
imprisonment in the state prison for one, two, or three years, provided that any person
sentenced to imprisonment in the county jail shall be imprisoned for a period not to
exceed one year, but not less than 180 days, and shall not be eligible for release upon
completion of sentence, parole, or any other basis, until he or she has served 180 days. If
the court grants probation or suspends the execution of sentence imposed upon the
defendant, it shall require as a condition thereof that the defendant serve 180 days in
county jail.” (Italics added.)

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TATTOO PROHIBITION
Erik further contends the juvenile court imposed an overbroad probation condition
when it stated he could not obtain any new tattoos, brands, burns, or voluntary scarring.
Erik argues the prohibition violates his First Amendment right to free speech. Erik also
asserts this condition of probation is invalid because it is not limited to gang-related
tattoos or marking. Our court recently examined and rejected all of these arguments. (In
re Antonio C. (2000) 83 Cal.App.4th 1029, 1034-1035.) We find Antonio C. well
reasoned and will not deviate from it.
DISPOSITION
The judgment of the juvenile court is affirmed.

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