In re A.B.
In re A
In re A.B.
Filed 1/25/13 In
re A.B. CA4/1
NOT TO BE PUBLISHED IN
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
In re A.B., a
Person Coming Under the Juvenile Court Law.
Plaintiff and Respondent,
Defendant and Appellant.
(Super. Ct. No. J230728)
from a judgment of the Superior Court of San Diego
County, Carlos O. Armour and Richard R. Monroy, Judges. Affirmed.
A.B. (Minor), was accused in a petition filed in the juvenile court of assault
with force likely to produce great bodily injury (Pen. Code,
§ 245, subd. (a)(4)) and battery with serious bodily injury (§ 243,
subd. (d)). It was further alleged that
the Minor personally inflicted great bodily injury on the victim
a contested hearing, the court found all counts and allegations to be
true. The Minor was later declared a
ward of the juvenile court and placed in the home of her mother.
Minor appeals contending the case must be remanded because the trial court
failed to exercise its discretion to declare the offenses to be felonies or
misdemeanors. We find the record does
not support the Minor's contention and affirm.
Minor does not challenge the admissibility or the sufficiency of the evidence
to support the true findings on the petition.
Accordingly, we will omit any discussion of the facts of the underlying
Minor contends the trial court did not properly declare whether the
"wobbler" offenses she was found to have committed were felonies or
misdemeanors. She argues the record does
not show the court was aware of it statutory duty to exercise its discretion
and thus the case should be remanded for the court to make such decision.
the completion of the contested hearing, the court made a true finding on the
petition. The court then went on to say
"So I am going to find these
counts to be true, the allegations to be true.
And I will fix them-they are both felonies. They are I believe to be 654, so I am going
to fix the term on Count 1 [§ 245, subd. (a)(4)] as a maximum term of four
years, adding to that the 12022.7 allegation of seven years, and I believe
Count 2 is actually barred by 654, so I won't fix an additional term on that,
so the total term of exposure on this case is seven years as potential
and Institutions Code section 702 provides, in part, that when a 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 a felony." (See also Cal. Rules of Court, rule
Supreme Court in In re Manzy W.
(1997) 14 Cal.4th 1199 (Manzy W.)
held that juvenile courts are required to make a formal declaration as to
whether a wobbler offense in any case is deemed to be a misdemeanor or a
felony. Such declaration serves the
purpose of ensuring that the court understands and exercises it discretion. (Id.
at pp. 1204, 1210.) The court also said,
however, that the entire record must be examined to determine if the trial
court was aware of, and exercised its discretion, even if there was no
"formal declaration" by the court.
(Id. at p. 1209.)
the trial court did address the felony/misdemeanor issue. The court expressly said it was going to
"fix" the two offenses as felonies.
The court then "fixed" the term for count 1 and the allegation
at a felony level.
Minor argues that such statements are not enough to demonstrate the court was
aware of its discretion and exercised it.
court could have been more formal and could have declared it was complying with
the statute and Manzy W., supra, 14
Cal.4th 1199. While that would have
been clearer, the court's statement sufficiently demonstrates compliance with
the statute. We note the court reviewed
the offenses at length in making the true finding. It explained how the fact of the injury made the
offenses more serious. In its final
statements, the use of the word "fix" must be interpreted as meaning
the court decided to exercise its discretion to determine the offenses to be
felonies, as opposed to misdemeanors. We
note the court also used the word "fix" to set the term of possible
punishment for count 1 and for the allegation.
Thus, we believe the only rational interpretation of the record is that
the court understood the difference between making an offense a felony or
making it a misdemeanor. The court
declared its decision on that issue with sufficient clarity to satisfy the
Supreme Court's direction in Manzy W. We find no error on this record.
judgment is affirmed.
Acting P. J.
 All further statutory
references are to the Penal Code unless otherwise specified.