In re C.C.
Filed 11/26/08 In re C.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re C. C., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, A120786
v. (San MateoCounty
Super. Ct. No. JV77953)
C. C.,
Defendant and Appellant.
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C.C. appeals from a disposition declaring him to be a ward of the court. He contends the trial court erred when it failed to characterize one of his offenses as either a felony or a misdemeanor. We agree and will remand so that the trial court can make that determination.
I. FACTUAL AND PROCEDURAL BACKGROUND
We need not set forth the facts of the underlying offenses given the nature of the issue that has been raised. It should suffice to say that on January 18, 2008, a petition was filed alleging appellant came within the jurisdiction of the juvenile court because he had committed a residential burglary, (Pen. Code, 459, 460, subd. (a)) and had received stolen property. (Pen. Code, 496, subd. (a).) That same day, a second petition was filed alleging appellant came within the jurisdiction of the juvenile court because he possessed burglary tools. (Pen. Code, 466.)
A contested jurisdictional hearing was held on the first petition. The court found the allegations to be true. In light of this ruling, the appellant admitted the allegation contained in the second petition.
At disposition, the court declared appellant a ward of the court and placed him in the custody of his mother.
II. DISCUSSION
Appellant contends his case must be remanded because the trial court failed to characterize his receiving stolen property offense as either a felony or misdemeanor.
Receiving stolen property is a wobbler. It can be punished as either a felony or a misdemeanor. (Pen. Code, 496, subd. (a).) Welfare and Institutions Code section 702[1]states that [i]f 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. Our Supreme Court has characterized this requirement as both unambiguous and obligatory. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) [Welfare and Institutions Code] section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor. (In re Manzy W., supra, 14 Cal.4th at p. 1204, quoting In re Kenneth H. (1983) 33 Cal.3d 616, 619.)
A courts failure to comply with the mandates of section 702 does not invariably require reversal. The error may be deemed harmless if the record shows 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. (Manzy W., supra, 14 Cal.4th 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. (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.)
Here, nothing in the record supports a finding that the juvenile court was aware of its discretion to declare the receiving stolen property offense to be either a felony or a misdemeanor. The court never expressly acknowledged that it possessed that discretion, and neither counsel mentioned that fact. Furthermore, the probation report consistently characterized the offense as a felony. There is simply no grounds upon which we can conclude that the court knew it had the discretion to treat the offense as a felony or misdemeanor.
The People concede that the trial court erred when it failed to comply with the express mandates of section 702. Nevertheless, they contend that error was harmless because the court viewed the receiving stolen property offense as an alternative offense for which it was precluded from imposing sentence under Penal Code section 654. However, this argument overlooks a critical fact. The characterization of an offense as a felony or misdemeanor has more than sentencing implications. (In re Manzy, W., supra, 14 Cal.4th at p. 1209.) It has important collateral consequences. As our Supreme Court has noted, the characterization may determine whether the current offense may be used for impeachment purposes. (Id. at p. 1209.) Furthermore, [i]t is common knowledge that such an adjudication when based upon a charge of committing an act that amounts to a felony, is a blight upon the character of and is a serious impediment to the future of such minor. (Ibid.) We conclude the error was not harmless simply because the court did not impose sentence on the receiving stolen property offense.
III. DISPOSITION
The case is remanded so the trial court can exercise its discretion to declare appellants receiving stolen property offense to be either a felony or a misdemeanor. In all other respects, the judgment is affirmed.
_________________________
Jones, P.J.
We concur:
________________________
Simons, J.
________________________
Dondero, J.*
*Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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[1] Unless otherwise indicated, all further section references will be to the Welfare and Institutions Code.
