In re Kevin B.

Filed 4/28/08 In re Kevin B. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Shep Zebberman, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed in part and reversed in part with directions.

Gloria C. Cohen, 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, Senior Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Kevin B. appeals from an order of the juvenile court declaring him to be a ward of the court (Welf. & Inst. Code,  602) and ordering camp placement entered after the court sustained a petition as to count 1, criminal threats (Pen. Code,  422) and count 3, cutting a utility line (Pen. Code,  591). The juvenile court did not sustain the petition as to count 2, criminal threats. On appeal, appellant contends that remand is required because the juvenile court failed to declare count 1 a felony or a misdemeanor. The People agree, and we remand for the juvenile court to declare the offense to be a felony or a misdemeanor.

FACTS

Appellant lived with his aunt, M.B. On October 17, 2007, appellant woke M.B., complaining that his cousin had taken his CD player. Appellant became angry and told M.B. that he was going to damage the house, hurt her, and have her son (his cousin) hurt. M.B. attempted to call the police, but appellant yanked the telephone cord out of the wall jack, so she used her cell phone to call the police.

DISCUSSION

The juvenile court found that appellant had committed the offense of making a criminal threat in violation of Penal Code section 422. The offense is a wobbler and may be punished as a felony or a misdemeanor. Welfare and Institutions Code section 702 requires that when 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 juvenile court must declare the offense to be a misdemeanor or felony.

Welfare and Institutions Code section 702 requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) The juvenile courts error may be harmless if the record shows 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. (Id. at p. 1209.) However, 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. [Citation.] (Id. at p. 1208.) 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. (Id. at p. 1209.)

Other than the sentence itself, which represents the maximum confinement on count 1 if it was considered a felony, there is no other evidence in the record supporting a finding that the juvenile court was aware of its discretion in determining the offense to be a felony or a misdemeanor. In its concluding remarks, the court failed to consider making a criminal threat a wobbler, stating only that appellants [m]aximum term of confinement is 3 years and 8 months. The court did not check either the felony or misdemeanor box on the form minute order after the petition was sustained.

In light of the record, we cannot hold harmless the juvenile courts error in failing to declare the offense to be a felony or a misdemeanor. (In re Manzy W., supra, 14 Cal.4th at pp. 1208-1209.) Accordingly, we must remand to allow the court to make the requisite declaration.

DISPOSITION

The order is reversed as to the maximum term of confinement. In all other respects, it is affirmed. The matter is remanded to the trial court to declare whether the criminal threats crime was determined to be a felony or misdemeanor for purposes of setting the maximum term of confinement and to set the maximum term of confinement.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

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