In re Lou D.
Filed 1/19/10 In re Lou D. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re LOU D., a Person Coming Under the Juvenile Court Law. | B214257 (Los Angeles County Super. Ct. No. JJ16587) |
THE PEOPLE, Plaintiff and Respondent, v. LOU D., Defendant and Appellant. |
APPEAL from an order of the Superior Court of Los Angeles County, Donna Groman, Judge. Affirmed in part, reversed in part and remanded with directions.
Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant.
Edward G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Sarah J. Farhat and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
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The minor Lou D., then 13 years old, attacked Kimberly R. and took her cellular telephone. Following a jurisdiction hearing, the juvenile court sustained the petition filed pursuant to Welfare and Institutions Code section 602, alleging he had committed second degree robbery (Pen. Code, 211) and assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)). At the disposition hearing, the minor was declared a ward of the court and ordered home on probation. The only issue on appeal is whether the juvenile court erred in failing to declare on the record whether the aggravated assault was a misdemeanor or a felony.
When, as here, a minor is found to have committed an offense that would in the case of an adult be punishable either as a felony or a misdemeanor, Welfare and Institutions Code section 702 requires the juvenile court to declare the offense to be a misdemeanor or felony. In the case of In re Manzy W. (1997) 14 Cal.4th 1199, 1207, the Supreme Court explained the requirement that the juvenile court declare whether a so-called wobbler offense was a misdemeanor or felony . . . serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702. An express declaration is necessary; the juvenile courts failure to comply with this mandate requires a remand unless the record shows the juvenile court was aware of its discretion to determine the offense to be a felony or a misdemeanor. (Id. at pp. 1210-1211.)
The People concede, and we agree, the juvenile court did not comply with Welfare and Institutions Code section 702 and In re Manzy W., supra, 14 Cal.4th 1199. Although the court made no such oral pronouncement, the minute order reflects that both the robbery and aggravated assault were declared to be felonies. However, this factor alone does not satisfy the requirements of Welfare and Institutions Code section 702 (In re Ricky H. (1981) 30 Cal.3d 176, 191; In re Eduardo D.(2000) 81 Cal.App.4th 545, 549), and the record as a whole fails to establish the court was aware of its authority to treat the aggravated assault as a misdemeanor. Remand is required for the court to make an explicit finding whether the aggravated assault is a felony or misdemeanor.
DISPOSITION
For the foregoing reason, the order of disposition is vacated and the cause remanded for the juvenile court to comply with Welfare and Institutions Code section 702 and In re Manzy W., supra, 14 Cal.4th 1199. In all other respects, the order under review is affirmed.
ZELON, J.
We concur:
WOODS, Acting P. J.
JACKSON, J.
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