In re D.J.

Filed 6/17/08 In re D.J. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant appeals from the disposition order pursuant to Welfare and Institutions Code section 602, which continued defendant as a ward on probation. Defendant admitted possessing a concealable firearm (Pen. Code, 12101, subds. (a)), which had been charged as a felony. Defendant contends that Penal Code section 12101, subdivision (a)(1) is a wobbler, and the court failed to comply with Welfare and Institutions Code section 702 and California Rules of Court, rule 5.780(e)(5) (hereinafter, rule 5.780(e)(5)) and make a formal finding as to whether the offense was a misdemeanor or a felony. We agree that the record does not establish that the lower court was aware that it had the discretion to determine whether the offense was a felony or a misdemeanor and remand for the lower court to make an express declaration.

BACKGROUND

On September 13, 2007, a subsequent delinquency petition under Welfare and Institutions Code section 602, subdivision (a) was filed. It alleged that defendant, the courts ward, was in possession of a firearm (Pen. Code, 12101, subd. (a)(1)) in count 1 and in possession of live ammunition (id., 12101, subd. (b)(1)) in count 2. Both counts were charged as felonies.

On October 3, 2007, the court held defendants motion to suppress pursuant to Welfare and Institutions Code section 700.1. The evidence presented at this hearing established that on September 11, 2007, Oakland Police Officer John Kelly and his partner responded to a request for assistance from other homicide targeted enforcement task force officers regarding a possible armed suspect. Kelly spotted defendant ride away from the scene on his bicycle while officers were detaining another person. Kelly followed defendant and observed him ride his bicycle into a driveway and bend down behind a Ford Bronco parked in the driveway. Kelly detained defendant and searched the driveway with the Ford Bronco. Kelly found a .40 caliber semiautomatic pistol with a loaded magazine of 10 rounds, and a round already chambered, under the Broncos front tire. Kelly arrested defendant.

The court denied the Welfare and Institutions Code section 700.1 motion. Counsel for defendant informed the court that defendant was prepared to admit to violating Penal Code section 12101, subdivision (a), as alleged in count 1, and the District Attorney agreed to dismiss count 2. Defendant stated that he understood the foregoing and that he wanted to admit to possession of a firearm. The court stated: I do find that [defendant has] made a knowing and intelligent waiver of his constitutional rights and understands the nature and consequences of doing so. Count 1 of the petition is true as admitted. [Defendant] is a person described under [Welfare and Institutions Code] section 602 in that he committed felony violation of [Penal Code] section 12101[, subdivision (a)(1)] on September 11th, 2007. Count 2 is dismissed on motion of the District Attorney with facts to remain open for disposition . . . .

On December 21, 2007, at the disposition hearing, the lower court continued defendant as a ward and placed him on probation in his mothers home. Defendant filed a timely notice of appeal.

DISCUSSION

Defendant admitted that he violated Penal Code section 12101, subdivision (a)(1). Section 12101, subdivision (a)(1), is a wobbler. (See Pen. Code, 12101, subd. (c)(1)(A) & (C).) The record establishes that the juvenile court stated that defendant admitted count 1 of the petition as true, which alleged that he committed a felony violation of Penal Code section 12101, subdivision (a)(1). The court also signed a minute order stating: pursuant to the minors admission: [] Count 1 ([Pen. Code, ] 12101[, subdivision (a)(1)]) . . . . True as admitted on 10/03/2007[.]

Defendant contends that the juvenile court failed to comply with Welfare and Institutions Code section 702 and rule 5.780(e)(5)^[1]when it did not make an express formal finding as to whether the offense was a misdemeanor or a felony. (In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy).) Defendant asserts that the matter must be remanded for an express articulation that the juvenile court was aware it possessed the discretion to set the offense as either a felony or misdemeanor. The People disagree and maintain that the courts acceptance of the plea disposition was sufficient.

Welfare and Institutions Code 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.

The requirements under Welfare and Institutions Code section 702 are addressed in Manzy, supra, 14 Cal.4th 1199. The minor in Manzy admitted to an allegation of possession of methamphetamine, which was a wobbler. The allegation was charged as a felony and the minor admitted to that allegation at the jurisdiction hearing. However, the court never referred to its discretion to declare the offense as a misdemeanor. Our Supreme Court held that the failure to make the mandatory express declaration required under Welfare and Institutions Code must result in remand as strict compliance is required by Welfare and Institutions Code section 702. (Manzy, supra, at p. 1204.)

The Supreme Court in Manzy explained that one of the reasons for requiring strict compliance with Welfare and Institutions Code section 702 is to ensure that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702. (Manzy, supra, 14 Cal.4th at p. 1207.) The court explained that neither 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. (Id. at p. 1208.)

The Supreme Court in Manzy explained the circumstances when remand is not necessary: [T]he 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. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. 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, supra, 14 Cal.4th at p. 1209.)

The record in the present case establishes that the court did not make any declaration that makes it clear that it was aware of its discretion to treat defendants offense as a misdemeanor. The People first argue, citing a case decided prior to Manzy, that there was substantial compliance with Welfare and Institutions Code section 702. (See In re Kenneth H. (1983) 33 Cal.3d 616, 620 & fn. 6.) We disagree that Kenneth H. holds that substantial compliance is sufficient. In any event, the holding in Manzy, supra, 14 Cal.4th 1199 is binding. Unless it is clear from the record that the juvenile court was aware of and exercised its discretion to determine the felony or misdemeanor nature of a wobbler, remand is necessary when the court fails to comply with Welfare and Institutions Code section 702. (Manzy, supra, at p. 1209.) Here, the record contains no evidence that the juvenile court was aware of its discretion to determine the felony or misdemeanor nature of Penal Code section 12101, subdivision (a)(1).

The People also argue that the matter should not be remanded because this case involved a plea disposition. The People acknowledge that the court could reject a proposed plea disposition even at the time of the dispositional hearing (see, e.g., People v. Orin (1975) 13 Cal.3d 937, 942-943), but they assert that the court could not unilaterally alter it at the time of the admission or at disposition. Further, they argue that defendant should not be able to now challenge a negotiated disposition since he received the benefit of the bargain.

The fact that this case involves a negotiated plea is immaterial, as the minor in Manzy also had admitted various allegations as true in return for the dismissal of other allegations against him. (Manzy, supra, 14 Cal.4th at p. 1203.) Since nothing in the record before us shows that the juvenile court was aware of and exercised its discretion to determine the felony or misdemeanor nature of the wobbler offensea prerequisite for us to find the error harmless under Manzythe matter must be remanded for an express declaration pursuant to Welfare and Institutions Code section 702. (Manzy, supra, at pp. 1210-1211.)

DISPOSITION

The matter is remanded for a declaration in compliance with Welfare and Institutions Code section 702. In all other respects, the judgment is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Richman, J.

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^[1] Rule 5.780(e)(5) reads in relevant part: If the court determines by a preponderance of the evidence in a [Welfare and Institutions Code] section 601 matter, or by proof beyond a reasonable doubt in a [Welfare and Institutions Code] section 602 matter, that the allegations of the petition are true, the court must make findings on each of the following . . . : [] . . . [] In a [Welfare and Institutions Code] section 602 matter, the degree of the offense and whether it would be a misdemeanor or a felony had the offense been committed by an adult. If any offense may be found to be either a felony or a 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.