>In re F.L.















Filed 6/15/12 In re F.L. CA5

Received for posting 6/20/12





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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


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In re F.L., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. F.L., Defendant and Appellant.	F063961 (Super. Ct. No. 512477) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Stanislaus
County. Nan Cohan Jacobs, Judge.

Rex Adam
Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.

Office of
the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.

-ooOoo-



The court
found that appellant, F.L., was a person described in Welfare and Institutions
Code section 602 after he admitted committing a href="http://www.mcmillanlaw.com/">second degree burglary offense (Pen.
Code, §§ 459, 460, subd. (b))href="#_ftn2"
name="_ftnref2" title="">^[1] and a gang enhancement (§ 186.22, subd.
(b)(1)(A)). Following href="http://www.fearnotlaw.com/">independent review pursuant to >People v. Wende (1979) 25 Cal.3d 436 (>Wende), we remand the matter to the juvenile
court so that it may declare the character of appellant’s offense. In all other respects we affirm.

FACTUAL AND PROCEDURAL HISTORY

On January
26, 2011, appellant and other gang members stole a large amount of marijuana
from a building. The amount stolen was
adequate for sales and would have resulted in a profit to the gang. Stolen property from the burglary was located
at a codefendant’s house.

On February 22, 2011, the district
attorney filed a first amended petition charging appellant with second degree
burglary and a gang enhancement. Also on
that date, after appellant admitted committing the burglary offense and the
gang enhancement, the court granted appellant deferred entry of judgment.

Following the service on appellant
of a notice of noncompliance, at a hearing on November 8, 2011, the court
terminated appellant’s deferred entry of judgment. The court also placed appellant on probation
on certain terms and conditions including that he be committed to juvenile hall
for 75 days with credit for 27 days he had previously been detained.

On November 15, 2011, the court
ordered appellant to register as a gang member.


Appellant’s appellate counsel has
filed a brief which summarizes the facts, with citations to the record, raises
no issues, and asks this court to independently review the record. (Wende,
supra, 25 Cal.3d 436.) Appellant has
not responded to this court’s invitation to submit additional briefing. However, our review of the record disclosed
that the court failed to declare the character of appellant’s second degree
burglary offense as required by Welfare and Institutions Code section 702.

Second degree burglary is a
so-called “wobbler” offense because it can be punished as a felony or a
misdemeanor. (§§ 17 & 461.) Welfare and Institutions Code section 702 in
pertinent part provides, “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 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.]” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) Failure to make
the mandatory express declaration requires remand to the juvenile court for
strict compliance with this section. (>Ibid.)
Therefore in accord with Manzy W.,
we remand this matter to the juvenile court so that it may declare the character
of appellant’s second degree burglary offense.

Further, following an
independent review of the record we find that with the exception of the issue
discussed above, no other reasonably arguable factual or legal issues exist.

DISPOSITION

The case is
remanded for the juvenile court to make a finding as to whether appellant’s
second degree burglary offense is a felony or a misdemeanor pursuant to name="SR;1075">Manzy
W., supra, 14 Cal.4th 1199. The remaining findings and orders of the
juvenile court are affirmed.