In re Justin P.

Filed 6/19/08 In re Justin P. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Justin P. appeals from a disposition order placing him on probation in his mothers home. The People concede that the juvenile court erred by failing to expressly declare whether the sustained offenses were felonies or misdemeanors. Justins other argument on appeal is not ripe for review. We remand for a declaration of the status of the offenses.

Background

In the early morning of August 11, 2007, an Oakland Police officer observed a car pulling out of a gas station where sideshow activity was taking place. The officer ran a computer check on the license plate of the car, learned the car had been reported stolen, and pulled over the car. Justin P. (born November 1989) was driving, and there were two passengers, ages 13 and 17 years old. An unmarked key was in the ignition, but the key did not start the car or open its doors. The steering column near the ignition was broken. Justin told the officer he had seen his friend (the 13 year old) driving the car and, because he knew the boy was too young to drive, he offered to drive him home. He said the car was running when he got in and that he did not know the car was stolen.

On August 14, 2007, the district attorney filed a petition pursuant to Welfare and Institutions Code section 602[1] charging Justin with the felony driving and taking of a vehicle without the owners consent (Veh. Code,  10851; count 1), and felony receipt of stolen property (Pen. Code,  496; count 2). Justin had a prior referral to juvenile court for petty theft in January 2005, when he was 15 years old. He received probation for that referral, and the case was dismissed in September 2006.

Following the probation departments recommendation, the court released Justin on home supervision pending a jurisdictional hearing. Justin performed well on home supervision, holding down a job and enrolling at Chabot College. After a contested jurisdictional hearing, the court sustained both charges. Neither defense counsel nor the prosecutor addressed the issue of whether the offenses should be deemed misdemeanors or felonies, and the court did not declare the status of the offenses. The court stated that the maximum period of confinement would be three years, eight months. The minute order of the hearing identifies the charges as felonies and the maximum period of confinement as three years, eight months.

The probation departments disposition report identified the offenses as felonies and the maximum period of confinement as three years, eight months. At the October 25, 2007 disposition hearing, defense counsel contested the calculation of the maximum period of confinement on the ground that the second count should be stayed pursuant to Penal Code section 654, but did not address the issue of whether the offenses should be deemed misdemeanors or felonies. The court placed Justin on probation and released him to his mothers care. Although the court did not declare the status of the offenses at the hearing, the minute order of the hearing identifies the offenses as felonies.

Discussion

Justin argues, and the People concede, that the juvenile court erred by not expressly declaring whether the sustained offenses were felonies or misdemeanors, as required by section 702. We cannot imply a declaration that the offenses were felonies from the facts that the offenses were charged as felonies, that the minute order of the dispositional hearing identified the offenses as felonies, or that the court set a theoretical maximum term of confinement at three years, eight months, reflecting felony terms of imprisonment. (See In re Manzy W. (1997) 14 Cal.4th 1199, 1207-1208.) Nor can we presume pursuant to Evidence Code section 664 that the court performed its official duty, because section 702 requires an express declaration of the status of the offenses. (In re Manzy W., supra, at pp. 1204, 1209.) Finally, the record does not indicate that the juvenile court was aware of and exercised its discretion to designate the offenses felonies, even though it failed to make an express declaration to that effect, thus rendering any error harmless. (See id. at p. 1209.) Neither defense counsel, the prosecutor, nor the probation department brought the issue to the courts attention. Moreover, there is a reasonable probability that the court would designate the offenses as misdemeanors because the court granted Justin home supervision throughout the proceeding and commented at the disposition hearing that the incident appeared to be an isolated mistake and that Justins life was otherwise on track. The People concede that remand is appropriate in this case for an express declaration of the status of the offenses.

Justin also argues that the juvenile court erred by failing to stay his sentence for receipt of stolen property pursuant to Penal Code section 654. The People correctly argue that this issue is not ripe for review because it affects only the calculation of a maximum period of confinement and the court was not required to set a maximum period of confinement at the disposition hearing because it did not remove Justin from his home. (See  726, subd. (c); In re Danny H. (2002) 104 Cal.App.4th 92, 106.)

Disposition

The matter is remanded to the juvenile court for compliance with section 702. In all other respects, the judgment is affirmed.

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REARDON, J. *

We concur:

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SIMONS, ACTING P. J.

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NEEDHAM, J.

* Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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