In re J.H.
Filed 12/12/12 In re J.H. CA6
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opinion has not been certified for publication or ordered published for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
IN RE J.H., a Person Coming Under
the Juvenile Court Law.
H038096
(Santa Clara
County
Super. Ct.
No. JV35437D)
THE PEOPLE,
Plaintiff and
Respondent,
v.
J.H.,
Defendant and
Appellant.
The minor,
J.H., admitted an allegation that he had committed misdemeanor
243.6), and, after a contested hearing, the juvenile court found true the
allegations that he had committed an unrelated felony assault and had
personally inflicted great bodily injury (former Pen. Code, § 245, subd.
(a)(1); Pen. Code, §§ 12022.7, subd. (a), 1203, subd. (e)(3)). The record does not reflect that the juvenile
court orally declared the assault offense to be a felony or a misdemeanor. The
minor was committed to the enhanced ranch program for six to eight
months.
On appeal,
the minor contends that remand is required because the
a felony or a misdemeanor. The Attorney
General concedes the issue. We agree with the concession and remand the
matter for the juvenile court to declare whether the assault offense is a
felony or a misdemeanor.
The
Prior Petition and Notice
In 2009, a
petition was filed under Welfare and Institutions Code section 602
alleging that the minor, then age 14, committed felony
§ 10851, subd. (a)). The petition
was amended to add a second count for felony grand theft (Pen. Code, §§ 484,
487, subd. (a)). The minor admitted the
allegation that he had committed grand theft.
The juvenile court dismissed count 1, adjudged the minor to be a ward of
the court, ordered him to serve 60 days on the electronic monitoring
program, and returned him to the custody of his parents on probation with
various terms and conditions.
The
probation department subsequently filed a notice under section 777, alleging
that the minor violated probation. The
notice was amended, and the minor admitted violating his probation as alleged
in the amended notice. The juvenile
court continued the minor as a ward of the court, granted him permission to
participate in the Alternative Placement
Academy, placed him on the
electronic monitoring program, and returned him to the custody of his parents
on continued probation.
In May
2011, a petition was filed under section 602 alleging that the minor, then age
17, committed misdemeanor battery on a
school employee (former Pen. Code, §§ 242, 243.6) on or about April 28, 2011.
In
September 2011, another petition was filed under section 602 alleging that the
minor committed felony assault with a deadly weapon or by means of force likely
to produce great bodily injury (former Pen. Code, § 245, subd. (a)(1)) on
Juan G. on or about September 15, 2011. The petition further alleged that the minor
personally inflicted great bodily injury (Pen. Code, §§ 12022.7, subd. (a),
1203, subd. (e)(3)). The juvenile
court ordered the two most recent petitions consolidated.
On January 30, 2012, the minor admitted
the allegation that he had committed battery (former Pen. Code, §§ 242,
243.6). The juvenile court stated that
the offense was a misdemeanor.
A contested
jurisdiction hearing was held regarding the assault and enhancement
allegations. On February 7, 2012, the juvenile court found that
the minor assaulted the victim by means of force likely to produce great bodily
injury, that the minor inflicted great bodily injury upon the victim, and that
the allegations in the petition were true.
On March 6, 2012, the disposition hearing
was held. The juvenile court continued
the minor as a ward of the court and ordered him committed to the Santa Clara
County Juvenile Rehabilitation Facilities’ enhanced ranch program for six to
eight months. Upon successful completion
of the program, the minor was to return to the custody of his parents on
probation. The court set the maximum
time of confinement at seven years ten months, and gave the minor credit for
time served of 206 days.
The minor
contends that the juvenile court failed to specify whether the assault offense
(former Pen. Code, § 245, subd. (a)(1)) was a felony or a misdemeanor pursuant
to section 702, and that therefore the matter must be remanded for
clarification.
The
Attorney General concedes that the juvenile court’s “statements and actions do
not demonstrate that it was aware of and exercised its discretion to determine
the felony or misdemeanor nature of the assault charge,†and that remand is
required. We find the concession
appropriate.
Assault is
punishable either as a misdemeanor or as a felony. (Pen. Code, § 245, subds. (a)(1) &
(a)(4); see also Stats. 2004, ch. 494, § 1.)
Section 702 provides that in a juvenile proceeding, “[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
or felony.†(Italics added.) The California Supreme Court has explained
that 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. (1997) 14 Cal.4th 1199, 1204 (Manzy
W.); see also Cal. Rules of Court, rules 5.780(e)(5), 5.790(a)(1),
5.795(a).) “[T]he requirement that the
juvenile court declare whether a so-called ‘wobbler’ offense [is] 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.†(
If the
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
shows that the 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.†(
see also id. 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. [Citation.]†(Id.
at p. 1208.)
In
felony-level term of physical confinement in the California Youth Authority
for an offense that would, in the case of an adult, be punishable either as a
misdemeanor or as a felony (a so-called “wobblerâ€), but the court failed to
expressly declare the offense a felony.
(Manzy W.,
the matter should be remanded to the juvenile court for an express declaration
pursuant to section 702 and possible recalculation of the maximum period
of physical confinement. (
California Supreme Court found “[n]othing in the record establish[ing] that the
juvenile court was aware of its discretion to sentence the offense as a
misdemeanor rather than a felony,†and “it would be mere speculation to
conclude that the juvenile court was actually aware of its discretion in
sentencing Manzy.†(Id. at p. 1210.)
In this
case, as the Attorney General concedes, the record does not establish that the
juvenile court exercised its discretion to determine the felony or misdemeanor
nature of the assault offense. Remand is
therefore required to permit the juvenile court to exercise its discretion to
treat the assault offense as either a felony or a misdemeanor. (Manzy
W., supra, 14 Cal.4th at pp.
1204, 1209-1211.)
The
disposition order of March 6, 2012
is reversed, and the matter is remanded to the juvenile court for the court to
exercise its discretion to declare the assault offense to be either a felony or
a misdemeanor.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
name="_ftn1" title=""> [1]
All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
name="_ftn2" title=""> [2]
The Youth Authority is now known as the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities. (§ 1710, subd. (a); Pen. Code, § 6001.)
