Filed 4/9/12 In re D.F. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re
D.F., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
D.F.,
Defendant and
Appellant.
F062789
(Super.
Ct. No. 07CEJ600899-3)
APPEAL from
a judgment of the Superior Court of
County. Brian M. Arax, Judge.
Erik R.
Beauchamp, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Max
Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, D.F., a
minor, was initially adjudged a ward of the court and placed on probation in
2007, for possession of a concealed
firearm by a minor, in violation of former Penal Code section 12101,
subdivision (a)(1) (section 12101(a)(1)).
continued on probation, following a second adjudication of the same
offense. In the instant case, following
a contested jurisdiction hearing in
February 2011, the juvenile court found true an allegation that appellant
committed a third section 12101(a)(1) violation, and, following the subsequent
disposition hearing in June 2011, again readjudged appellant a ward of the
court, continued him on probation, ordered him removed from the
him on the electronic monitoring program for 90 days, and declared his maximum
term of confinement (Welf. & Inst. Code, § 726, subd. (c)) to be three
years eight months.
On appeal,
appellant’s sole contention is that the juvenile court erred in failing to
declare on the record, at either the jurisdiction hearing or the disposition
hearing, the instant offense to be a felony or a misdemeanor. We affirm.
DISCUSSION
Governing Legal
Principles
Welfare and Institutions Code section 702 (section
702) provides, in relevant part: “If the 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 felony.” An offense
which, in the discretion of the court, may be punished as either a felony or a
misdemeanor is
commonly called a “wobbler.” (In re
Manzy W. (1997) 14 Cal.4th 1199, 1201 (Manzy
W.).) As the parties agree, section
12101(a)(1) is a wobbler. (Pen. Code, §
12101, subd. (c)(1)(C).).
The purpose of section 702 is two-fold: (1) to “provid[e] a record from which the
maximum term of physical confinement
for an offense can be determined, particularly in the event of future
adjudications” (Manzy W.,
supra, 14 Cal.4th at p. 1205), and (2) to
“ensur[e] that the juvenile court is aware of, and actually exercises, its
discretion under … section 702” (id.
at p. 1207).
“The language of [section 702] is
unambiguous. It requires an
court whether an offense would be a felony or misdemeanor in the case of an
adult.” (Manzy W., supra, 14
Cal.4th at p. 1204, italics added; accord, In
re Kenneth H. (1983) 33 Cal.3d 616, 619 [“section 702 means what it says
and mandates the juvenile court to declare the offense a felony or
misdemeanor”].) “[N]either the pleading, the minute order, nor the setting
of a felony-level period of physical confinement may substitute for a
declaration by the juvenile court as to whether an offense is a misdemeanor or
felony.” (Manzy W., at p. 1208.)
In addition, California Rules of
Court, rule 5.778(f),
name="_ftnref3" title="">[2] provides that if the juvenile court finds the
allegation of a wardship petition true, it “must make [certain enumerated]
findings,” including the following:
“(9) In a [Welfare and
Institutions Code] section 602 matter, the degree of the offense and whether it
would be a misdemeanor or felony had the offense been committed by an
adult. If an offense may be found to be
either a felony or misdemeanor, the court must consider which description
applies and expressly declare on the record that it has made such consideration
and must state its determination as to whether the offense is a misdemeanor or
a felony. These determinations may be
deferred until the disposition hearing.”
And, rule 5.790(a) provides, in relevant part: “At the disposition hearing: [¶]
(1) If the court has not
previously considered whether any offense is a misdemeanor or felony, the court
must do so at this time and state its finding on the record. If the offense may be found to be either a
felony or a misdemeanor, the court must consider which description applies and
must expressly declare on the record that it has made such consideration and must
state its finding as to whether the offense is a misdemeanor or a felony.”
A juvenile court’s failure to
comply with section 702 does not invariably necessitate remand. (Manzy
W., supra, 14 Cal.4th at p.
1209.) “[S]peaking generally, the record
in a given case may show that the juvenile court, despite its failure to comply
with the statute, was aware of, and exercised its discretion to determine the
felony or misdemeanor nature of a wobbler.
In such case, when remand would be merely redundant, failure to comply
with the statute would amount to harmless error.... The key issue is whether the record as a
whole establishes that the juvenile court was aware of its discretion to treat
the offense as a misdemeanor and to state a misdemeanor-length confinement
limit.” (Ibid.)
Analysis
As appellant argues, and the People do not dispute, at no
time, at either the jurisdiction hearing or the disposition hearing, did the
court declare the instant offense to be a felony or a misdemeanor. In addition, there is no dispute that the
court failed to comply with the mandate of rule 5.790(a) that where, as here,
the court does not make the statutorily required declaration at the
jurisdiction hearing, it must, at the disposition hearing, in addition to
complying with the statutory directive, “expressly declare on the
record” that it has considered whether the offense in question should be
punished as a felony or a misdemeanor.
(Rule 5.790(a).)
The People argue, however, that the
court complied with section 702, based on the written disposition order, signed
by the court and dated June 20, 2011.
This order is on a pre-printed form, consisting in large part of a
series of statements, most of which are preceded by a box in which it can be
indicated by an “x” or some other notation that the statement is part of the
order. There is an “x” in the box
preceding the statement, “The following counts may be considered a misdemeanor
or a felony The court finds the child’s
violation: ....” There follows the notation, “PC 12101(a)(1),”
indicating the instant offense. This
notation is followed by two boxes, one labeled “Misdemeanor” and the other
labeled “Felony.” There is an “x” in the
box labeled “Felony” and no mark in the box labeled “Misdemeanor.” This portion of the written order, the People
argue, constitutes the explicit declaration required by section 702. Appellant counters that this finding set
forth in the written order does not comply with section 702 because the
statutorily mandated declaration must be made on the record, during the
hearing, at the time the court sets the maximum term of confinement, which will
vary depending on whether the offense is a felony or misdemeanor. However, we need not resolve this dispute. Assuming for the sake of argument that the section
702 declaration must be made on the record no later than the disposition
hearing, and that the court does not comply with the statute by declaring the
offense to be felony or misdemeanor in its written disposition order, which,
presumably is prepared and signed after
the court has orally announced its disposition, any error, as we explain below,
was harmless.
As indicated above, for purposes of
determining whether Manzy W. error is
prejudicial, “The key issue is whether the record as a whole establishes that
the juvenile court was aware of its discretion to treat the offense as a
misdemeanor and to state a misdemeanor-length confinement limit.” (Manzy
W., supra, 14 Cal.4th at p.
1209.) We recognize that the juvenile
court did not at any time, during either the jurisdiction hearing or the
disposition hearing, refer to its discretion to declare the offense a
misdemeanor; neither the prosecution, defense counsel nor the probation officer
pointed out to the court that it had such discretion; and the report of the
probation officer, although it referred to the instant offense as a felony, did
not indicate that it could be a misdemeanor.
However, the written disposition
order, explicitly states appellant’s section 12101(a)(1) violation “may be
considered a misdemeanor or felony,” and immediately after that statement,
indicates that the court determined the offense to be a felony. Appellant argues that this order was
presumably signed after the disposition
hearing and the judicial officer “may not have been aware of his discretion
until he read the language on the form.”
The record admits of this possibility, but in our view, the express
acknowledgment of the wobbler status of the instant offense and the finding
that the offense was a felony, in a written court order signed by the judicial
officer on the day of the hearing, is sufficient to establish that, at the
disposition hearing, the court was aware it could treat the instant offense as
a misdemeanor and set a misdemeanor length of confinement. Therefore, any violation of section 702
and/or rule 5.790(a) was harmless.
DISPOSITION
The judgment is affirmed.
name="_ftn1" title="">*Before
Levy, Acting P.J., Gomes, J., and Detjen, J.
name="_ftn2" title="">[1] Former
Penal Code section 12101, which was in effect at all times relevant here, was
repealed effective January 1, 2012. The
provisions of the statute were continued without substantive change in Penal
Code section 25400, subdivision (a)(2).
All references to Penal Code section 12101, including its subdivisions
and smaller component parts, are to the repealed statute.
