Filed 7/16/26 In re M.B. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re M.B., a Person Coming 2d Juv. No. B343831 (Cons. w/
Under the Juvenile Court Law. B343833 & B343834
Super. Ct. No. 2022016611
(Cons. w/ 2024017003 &
2024013198)
(Ventura County)
THE PEOPLE,
Plaintiff and Respondent,
v.
M.B.,
Defendant and Appellant.
M.B. appeals following the juvenile court’s dispositional
order regarding three petitions under Welfare and Institutions
Code section 602.1 Appellant contends: (1) the court “did not
1 Undesignated statutory references are to the Welfare and
Institutions Code.
declare on the record that either of [his] two aggravated assault
offenses was a felony or a misdemeanor, as required” by section
702; (2) section 730.6 requires that the restitution fines imposed
must be stricken; and (3) the precommitment credits must be
corrected. We agree with all three contentions. Accordingly, we
will strike the restitution fines, correct the credits, and remand
for a juvenile court declaration pursuant to section 702.
PROCEDURAL BACKGROUND
Case Number B343831
In March 2023, an amended section 602 petition alleged
appellant committed the crime of weapons on school grounds
(Pen. Code, § 626.10, subd. (a)), a misdemeanor, and attempted
second degree robbery (Pen. Code, §§ 664, 211), a felony. In
April, appellant admitted he committed both offenses. The court
declared appellant a ward of the court and ordered 60 days of
electronic monitoring.
Case Number B343834
In May 2024, a section 602 petition alleged appellant
committed assault with force likely to produce great bodily injury
(Pen. Code, § 245, subd. (a)(4)), a felony. On June 11, 2024, the
court sustained the petition after a contested hearing and
continued the case for disposition.
Case Number B343833
On June 25, 2024, a section 602 petition alleged appellant
committed assault with force likely to produce great bodily injury
(Pen. Code, §245, subd. (a)(4)), a felony. In October, the court
sustained the petition and continued the case for disposition.
Disposition Hearing
At the December 13, 2024 disposition hearing, the court
continued appellant as a ward, ordered him to serve 700 days at
the juvenile justice facility plus 30 days on electronic monitoring,
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and awarded 211 days of credit. The court set the maximum
term of confinement at seven years, four months.
DISCUSSION
Section 702 Declaration
Section 702 provides, in part, that when a “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.”
(§ 702.) “Section 702 requires the juvenile court to declare on the
record at a hearing ‘before or at the time of disposition’ its choice
whether to treat an alleged wobbler as a misdemeanor or as a
felony. [Citation.] ‘[N]either the pleading, the minute order, nor
the setting of a felony-level period of . . . confinement may
substitute’ for the required declaration.” (In re F.M. (2023) 14
Cal.5th 701, 712.)
“A section 702 error is not harmless unless the record
shows that the juvenile court was ‘aware of, and exercised its
discretion’ as to each wobbler alleged against the minor.” (In re
F.M., supra, 14 Cal.5th at p. 717.) “The ‘key issue’ under this
standard is whether the juvenile court ‘was aware of its
discretion’ under section 702.” (Id. at p. 712.)
Here, the juvenile court did not declare on the record, at a
hearing, whether it would treat the Penal Code section 245,
subdivision (a)(4) wobblers as felonies or misdemeanors. (See In
re F.M., supra, 14 Cal.5th at p. 706 [assault with force likely to
produce great bodily injury is a wobbler].)
This section 702 error was not harmless. Signed minute
orders in the two assault cases stated, “Pursuant to Juvenile
Court Rule 5.795(a), the court finds the offense to be a Felony as
to count 1.” This language tracks recommendations in a
memorandum probation filed for disposition. However, rule
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5.795(a) states that for any wobbler, “the court must consider
which description applies and expressly declare on the record that
it has made such consideration and must state its determination
as to whether the offense is a misdemeanor or a felony.” (Cal.
Rules of Court, rule 5.795(a), italics added.) The court’s failure to
comply with the very rule cited undermines any inference that it
was aware of its discretion. Accordingly, we will accept the
People’s concession that remand is warranted.
Restitution Fines
The juvenile court imposed three $200 restitution fines.
Effective January 1, 2025, Assembly Bill No. 1186 (2023-2024
Reg. Sess.) amended section 730.6 to remove the requirement
that a minor pay a restitution fine. (Stats. 2024, ch. 805, § 6.)
The relevant portion of the statute now provides: “The court
shall not impose a separate and additional restitution fine
against a minor found to be a person described in Section 602.”
(§ 730.6, subd. (a)(2).) Appellant is entitled to the ameliorative
benefit of this amendment. (See In re Estrada (1965) 63 Cal.2d
740, 745-746.)
Credits
Appellant contends he is entitled to 462 days of
precommitment credits rather than the 211 days the juvenile
court awarded. We agree.
“‘[A] minor is entitled to credit against his or her maximum
term of confinement for the time spent in custody before the
disposition hearing’ . . . . ‘[W]hen a juvenile court elects to
aggregate a minor’s period of physical confinement on multiple
petitions . . . , the court must also aggregate the predisposition
custody credits attributable to those multiple petitions.’” (In re
A.M. (2014) 225 Cal.App.4th 1075, 1085-1086.)
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Here, the court aggregated multiple petitions to reach a
maximum confinement term of seven years, four months.
Appellant is entitled to credits accrued under each aggregated
petition. According to probation’s custody time worksheet, those
credits total to 462 days.
The People contend appellant should not receive credit for
the 59 days he spent on electronic monitoring. However, section
628.2, subdivision (c) provides: “A minor shall be entitled to have
one day credited against the minor’s maximum term of
confinement for each day, or fraction thereof, that the minor
serves on electronic monitoring. The provision of custody credits
pursuant to this subdivision shall apply to custody credits earned
beginning January 1, 2023.” Because appellant was on electronic
monitoring after January 1, 2023, he is entitled to credits for that
time.
DISPOSITION
The juvenile court’s orders imposing restitution fines are
stricken. The disposition order is modified to award appellant
462 days of credit as of December 13, 2024. Pursuant to section
702, the matter is remanded for the court to declare on the
record, at a hearing, whether appellant’s two violations of Penal
Code section 245, subdivision (a)(4) are misdemeanors or felonies.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
YEGAN, Acting P. J. BALTODANO, J.
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Ferdinand D. Inumerable, Judge
Superior Court County of Ventura
______________________________
Mary Bernstein, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Kathy S. Pomerantz, Deputy Attorney
General.
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