In re D.T.

Filed 8/27/08 In re D.T. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Robin Kessler, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed and remanded with directions.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

______________

D.T., a minor, appeals from an order declaring him a ward of the juvenile court pursuant to Welfare and Institutions Code section 602[1]by reason of his having committed grand theft auto (Pen. Code, 487, subd. (d)(1)) and theft or unauthorized driving of a vehicle (Veh. Code, 10851, subd.(a)). The grand theft auto count was dismissed pursuant to Penal Code section 654. The juvenile court ordered appellant placed in the Camp Community Placement Program and set a maximum term of confinement of three years eight months. Appellant contends that the juvenile court failed to exercise its discretion, as required by section 702, to determine whether the adjudicated allegation was a felony or misdemeanor, requiring remand for the juvenile court to make that determination.

The challenged order is affirmed and this matter remanded with directions.

PROCEDURAL AND FACTUAL BACKGROIUND

On October 26, 2007, at approximately 1:40 a.m., Donte M. (Donte) was driving a car in Los Angeles in which appellant was a passenger. Los Angeles Police Officers Joseph Oseguera and Martinez pulled the car over because of a possible curfew violation, as the boys appeared young.

The minors exited the car, which was then searched. A set of keys, including a shaved key commonly used to steal older model cars, was found. There was no key in the ignition, although the engine was left running. A shaved key can be removed from the ignition, and the engine will continue to run. After speaking with the registered owner who had been brought to the scene, Officer Oseguera determined that the car had been stolen.

Appellant told Officer Oseguera that he and Donte were walking home and saw the car parked alongside the road. They decided to take the car and drive it home.

Based upon the foregoing facts, on October 29, 2007, the district attorney filed a section 602 petition, alleging that appellant had committed felony grand theft auto (Pen. Code, 487, subd. (d)(1)) and felony theft or unauthorized use of a vehicle (Veh. Code,  10851, subd. (a)).[2]

At the adjudication hearing, the juvenile court found the allegations to be true. The printed form minute orders for that hearing and the subsequent disposition hearing each had the box checked stating that Offense declared to be a felony.

At the disposition hearing, the juvenile court dismissed the grand theft auto count pursuant to Penal Code section 654. It placed appellant in the Camp Community Placement Program for three months and set a maximum term of confinement of three years eight months, the eight months derived from the prior two petitions filed against appellant.

DISCUSSION

Appellant contends that the juvenile court failed to exercise its discretion under section 702 to determine whether the adjudicated offense was a felony or misdemeanor, requiring remand for such determination. We agree.

The juvenile court found that appellant had taken or driven without authorization a vehicle in violation of Vehicle Code section 10851, subdivision (a). The penalty for that offense is imprisonment in a county jail for not more than one year or in the state prison. . . , making the offense a wobbler, meaning either a misdemeanor or a felony. (Veh. Code, 10851, subd. (a); In re Nancy C. (2005) 133 Cal.App.4th 508, 510.)

Section 702 provides in pertinent 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. Our Supreme Court, in In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy), explained the section 702 requirement, as follows: What is not at issue is what the juvenile court must do. The language of the provision is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. . . .  [] The requirement is obligatory: [Welfare and Institutions Code] section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor. [Citations.] The significance of such a declaration is that it determines the maximum period of physical confinement. . . . [and] may also have substantial ramifications in future criminal adjudications of the minor, including under Penal Code section 667, subdivision (d)(3)(A)the Three Strikes law. (Manzy, supra, at pp. 12081209.)

The juvenile courts explicit declaration must reflect that it is aware that it possesses discretion to construe the adjudicated offense as either a misdemeanor or felony. 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.)

Here, the juvenile court made no explicit declaration as to whether appellants wobbler offense was a misdemeanor or a felony. Its off-handed statement that appellant picked up a felony[3]and comment that count 1 of the petition (the dismissed count) is a felony,[4]simply indicate that the juvenile court viewed the offense to be a felony, not that it was aware that it was a wobbler and that it was required to decide whether it was a felony or a misdemeanor. The juvenile court may simply have been characterizing the offense as the district attorney had pled it in the petition, as its latter comment was made with a reference to the petition. Consequently, the juvenile court failed to make the explicit declaration required by section 702.

Nonetheless, remand is not automatic. [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. (Manzy, supra, 14 Cal.4th at p. 1209.)

Here, the petition alleged the offense to be a felony. But, filing a section 602 petition alleging a wobbler offense as a felony is insufficient to show that the juvenile court made the required section 702 finding, as the contents of the petition are in the hands of the prosecutor, not the court. (Manzy, supra, 14 Cal.4th at p. 1207; In re Kenneth H. (1983) 33 Cal.3d 616, 619620.) The fact that the juvenile court set the maximum term of confinement at the felony term of three years also does not eliminate the need for remand when the statute has been violated. (Manzy, supra, at p. 1209.) Similarly, checking the felony box, rather than the misdemeanor box, on the minute order does not satisfy the mandates of section 702. (In re Eduardo D. (2000) 81 Cal.App.4th 545, 549, disapproved on other grounds in In re Jesus O. (2007) 40 Cal.4th 859, 867.) None of these facts, individually or collectively, sheds any light on whether the juvenile court knew that the adjudicated offense was a wobbler and that it had the option of determining the offense to be a misdemeanor.

We have carefully reviewed the entire record and find nothing that gives any assurance that the juvenile court was aware of its obligations under section 702. During the disposition hearing, the juvenile court said nothing reflecting such awareness. While it assessed a maximum term of confinement based on appellants offense being a felony, it did not indicate that it was aware that it could calculate the minimum term based upon a misdemeanor finding. Nothing in the probation report or in the argument of counsel regarding disposition alluded to the juvenile courts discretion to consider the offense either a felony or a misdemeanor. Even the fact that the juvenile court appears to have intended appellants offense to be a felony, does not imply awareness of its ability to do otherwise. Without such knowledge, the juvenile court cannot be said to have exercised discretion.

Respondent argues that the juvenile courts identifying the counts from the previous[] petitions as misdemeanor[s] but identifying that the count in the current petition a felony demonstrates its awareness of its discretion to characterize a wobbler as either one. We disagree. The juvenile court identified the offenses adjudicated in the earlier petitions as misdemeanors because the battery offenses alleged there were misdemeanors, and only misdemeanors, and therefore not wobblers. Hence, characterizing them as misdemeanors is not an indication that the juvenile court was aware that it could characterize a wobbler as either a misdemeanor or felony.

As a result, this matter must be remanded to the juvenile court to exercise its discretion under section 702 and determine whether appellants offense is a felony or misdemeanor.

DISPOSITION

The order appealed from is affirmed but remanded for the juvenile court to exercise its discretion pursuant to section 702 and, if necessary, recalculate the period of confinement.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

_________________, Acting P. J. _____________________, J.

DOI TODD CHAVEZ

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Appellant had two prior section 602 petitions filed against him; one filed on July 31, 2006, alleging two counts of battery on school grounds (Pen. Code, 243.2, subd. (a)), which appellant admitted and received informal probation, and another, filed on April 13, 2007, alleging one count of battery (Pen. Code, 242), which appellant also admitted and again received informal probation.

[3] The juvenile courts entire comment was that: [Appellants] new maximum [term of] confinement would now be three years and eight months because he picked up a felony.

[4] Respondent characterizes this as a mere misstatement by the juvenile court which intended to refer to the non-dismissed second count.