In re F.A.

Filed 2/19/10 In re F.A. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

A juvenile wardship petition filed against minor F.A. alleged a felony violation of Penal Code section 12020, subdivision (a)(4) (carrying a concealed dirk or dagger) (count one) and a misdemeanor violation of Penal Code section 417, subdivision (a)(1) (exhibiting deadly weapon other than firearm, specifically a knife) (count two). The minor admitted the petition's allegations. The juvenile court declared minor to be a ward of the court, committed him to juvenile hall for 120 actual days, and imposed certain terms and conditions. (See Welf. & Inst. Code,  602, 725, 727.)[1] Minor appealed. ( 800, subd. (a); Cal. Rules of Court, rule 5.585(a).)

On appeal, minor does not challenge the order adjudging him to be a ward of the juvenile court or any disposition order but only the failure of the court to declare whether the admitted violation of Penal Code section 12020, subdivision (a)(4), was a misdemeanor or felony offense. He asserts that the matter must be remanded to the juvenile court to make this finding. Respondent concedes error. We agree that a remand is necessary to comply with section 702. (See In re Manzy W. (1997) 14 Cal.4th 1199, 1207-1209; see also In re Gregory M. (1977) 68 Cal.App.3d 1085, 1089-1190 [alleged error at jurisdiction hearing reviewable on appeal from disposition order].)

Section 702 states 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." (See Cal. Rules of Court, rules 5.780 (e)(5), 5.790(a)(1), 5.795(a).)[2] Section 702 "requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. [Citations.]" (In re Manzy W., supra, 14 Cal.4th at p. 1204.); see Cal. Rules of Court, rule 5.780 (e)(5) [express declaration on record required].) "[T]he 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. For this reason, it cannot be deemed merely 'directory.' (See People v. McGee (1977) 19 Cal.3d 948, 963 . . . .)" (In re Manzy W., supra, 14 Cal.4th at p. 1207, fn. omitted.)

If a juvenile court fails to make the express declaration mandated by section 702, the matter must be remanded for compliance with that section unless the record in a particular case establishes that "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." (In re Manzy W., supra, 14 Cal.4th at p. 1204.) "[N]either 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; see id. at p. 1209 ["setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated"].)

Here, the record shows that the court determined that the maximum period of confinement was three years and two months (see  726, subd. (c)), but the record does not establish that the juvenile court was aware of or exercised its discretion to declare the count one offense a misdemeanor or a felony. Consequently, the matter must be remanded for this purpose.

Disposition

The matter is remanded for the limited purpose of allowing the juvenile court to expressly determine whether the count one offense was a misdemeanor or a felony as required by law and for recalculation of the maximum term of confinement if necessary.

______________________________

ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] All further references are to the Welfare and Institutions Code unless otherwise specified.

[2] While it appears that the determination as to whether the offense is a misdemeanor or a felony should be made as part of the jurisdiction findings ( 702), the California Rules of Court allow the determination to be deferred until the disposition hearing. (Cal. Rules of Court, rule 5.780 (e)(5).) The rules require a juvenile court to make such determination at the time of disposition if it did not do so previously (Cal. Rules of Court, rules 5.790(a)(1), 5.795(a)).