In re S.B.
Filed 8/18/09 In re S.B. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re S.B., a Person Coming Under the Juvenile Court Law. | B212495 (Los Angeles County Super. Ct. No. PJ41978) |
THE PEOPLE, Plaintiff and Respondent, v. S.B., Defendant and Appellant. |
APPEAL from a judgment of the Superior Court of Los Angeles County, Fred J. Fujioka, Judge. Affirmed in part and remanded.
Torres & Torres and Tonja R. Torres 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 Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant S.B. appeals from an order of October 3, 2008, declaring her a ward of the court under Welfare and Institutions Code section 602 after the juvenile court sustained a petition alleging that she dissuaded a witness from arresting another for a crime in violation of Penal Code section 136.1, subdivision (b)(3), and resisted, delayed, and obstructed a peace officer in violation of Penal Code section 148, subdivision (a)(1). Appellant was ordered suitably placed in an open or closed facility.
Appellant contends, the Attorney General concedes, and we agree the matter must be remanded for the juvenile court to make an express declaration whether the offense of dissuading a witness from arresting another for a crime is a felony or misdemeanor.[1]
Welfare and Institutions Code section 702 provides in pertinent 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. [F]ailure to make the mandatory express declaration requires remand of [the] matter for strict compliance with Welfare and Institutions Code section 702. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.)
Dissuading a witness from arresting another for a crime in violation of Penal Code section 136.1, subdivision (b)(3), is an offense punishable as a felony or misdemeanor. (See Pen. Code, 136.1, subd. (b), 17, subd. (a).) The maximum term of physical confinement reflected in the minute order for the offense was the felony midterm. However, in violation of Welfare and Institutions Code section 702, no express declaration was made, and the record does not indicate the juvenile court considered whether to declare the offense a felony or misdemeanor. (See In re Manzy W, supra, 14 Cal.4th at pp. 1207-1209.) Accordingly, the matter must be remanded for an express declaration pursuant to Welfare and Institutions Code section 702 and possible recalculation of the maximum period of physical confinement. (Id. at p. 1211.)
DISPOSITION
The matter is remanded for an express declaration pursuant to Welfare and Institutions Code section 702 whether the offense of dissuading a witness from arresting another for a crime in violation of Penal Code section 136.1, subdivision (b)(3), is a misdemeanor or felony and recalculation of the maximum period of physical confinement. In all other respects, the judgment is affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J.
ARMSTRONG, J.
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[1] We do not recite the facts of the case, because the only issue raised in the appeal is a procedural one.
