In re T.W.

Filed 1/26/09 In re T.W. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I.

INTRODUCTION

Defendant T.W. appeals from a judgment and dispositional order following a jurisdictional hearing in which the court sustained one count of possession of a weapon on school grounds, and placed her on probation. Defendant seeks a determination, as a matter of law, that the offense is a misdemeanor. The Attorney General agrees that the offense is a misdemeanor as a matter of law, but maintains that no further action is necessary to make it so. We agree, and affirm the judgment.

II.

BACKGROUND

We set forth the procedural and factual background to the limited extent pertinent to the issue on appeal. The Del Norte County District Attorney filed a juvenile petition against T.W. alleging two counts of possessing a weapon on school grounds (Pen. Code,  626.10),[1] and one count of possession of tobacco by a minor ( 308, subd. (b)). Both violations of section 626.10 were charged as misdemeanors. On the prosecutors motion, the court dismissed the first count of violating section 626.10. Following a contested jurisdictional hearing, the court sustained the misdemeanor charge of violating section 626.10, but found insufficient evidence of possession of tobacco.[2]At the dispositional hearing, the court declared T.W. a ward of the court and ordered she be placed on probation. This timely appeal followed.

III.

DISCUSSION

The sole issue raised by T.W. in this appeal is that the court erred in not stating on the record at the jurisdictional hearing whether the violation of section 626.10 was a misdemeanor or felony under Welfare and Institutions Code section 702. That section provides in part: 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. (Welf. & Inst. Code,  702.) A violation of section 626.10 is a wobbler, coming within this provision of Welfare and Institutions Code section 702. ( 626.10, subd. (a).)

In this case, however, the violation of section 626.10 was specifically charged as a misdemeanor and never considered to be a felony. Because it was so charged and treated as such throughout the proceedings, it was a misdemeanor as a matter of law. ( 17, subd. (b)(4).) Defendants attorney did not raise the issue. Accordingly, because T.W. was charged with and found to have committed a misdemeanor offense, the court did not err in failing to state on the record that it was not a felony offense. Nothing more needs to be done.

IV.

DISPOSITION

The jurisdictional and dispositional orders are affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Margulies, J.

______________________

Graham, J.*

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[1] Unless otherwise noted, all further undesignated references are to the Penal Code.

[2] As noted by both parties, the clerks transcript mistakenly indicates that the possession of tobacco count was sustained, though it is clear from the reporters transcript that it was not.

* Retired judge of the Marin Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.