In re C.S.
Filed 2/22/13 In re C.S. CA1/3
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opinion has not been certified for publication or ordered published for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
THREE
In re C.S.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
C.S.,
Defendant and Appellant.
A134492
(Contra
Costa County
Super. Ct.
No. J11-01457)
C.S.
appeals from a dispositional order requiring that he complete the Youthful
Offender Treatment Program after he admitted allegations that he committed an
assault by means of force likely to produce great bodily
(a)(1).) He argues that the case must be
remanded for a determination of whether the offense is a felony or a
misdemeanor. We agree and remand.
BACKGROUND
According
to the probation report, appellant and four other individuals assaulted a man
outside a bar in Vallejo on September 18, 2011. They punched the man in the face, and kicked
him after he fell to the ground. The
man’s girlfriend and another woman tried to intervene, but appellant punched
the girlfriend and kicked the woman, knocking them both to the ground. Appellant and the other assailants attempted
to drive away, but they crashed into another vehicle in the parking lot and
were arrested.
Appellant
was charged in a wardship petition filed in
County with three felony counts of violating Penal Code section 245,
subdivision (a)(1). At a readiness
conference on October 12, 2011, appellant admitted count one, and counts two
and three were dismissed. The court
confirmed with appellant that he was admitting a felony that could carry a
four-year maximum term of confinement, in order to avoid the possibility that
he would be found to have committed three felonies. The court’s form for juvenile minute orders contained
boxes that could be checked to indicate whether counts in the petition were
deemed to be felonies or misdemeanors.
The court checked the box for “Felony†and specified count one. The matter was transferred for disposition to
Contra Costa County, appellant’s county of residence.
The
probation report noted that appellant admitted committing a felony, and
recommended that he be committed to the Division of Juvenile Justice. At disposition, the court stated: “This is a serious offense and clearly while
it appears that the level of injuries sustained by the respective victims were
not extremely serious, this conduct could have resulted in much more
significant injury to any number of the victims. [¶] I do agree that this
is obviously a very serious case. . . . [¶] I do think that
[C.S.]’s behavior here was significantly violent in
nature . . . .â€
During discussion of the restitution fine, the probation officer asked whether
“just one felony . . . ha[d] been sustained,†and the court replied,
“He admitted one count, I believe.â€
DISCUSSION
Violation
of Penal Code section 245, subdivision (a)(1) is punishable as either a
felony or a misdemeanor. Welfare and
Institutions Code section 702 provides:
“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.†This obligation is mandatory and “strict
compliance†(In re Manzy W. (1997) 14
Cal.4th 1199, 1204 (Manzy W.) is
enforced to “ensur[e] that the juvenile court is aware of, and actually
exercises, its discretion†in the matter (id.
at p. 1207). It is not enough for
the ward to admit an offense charged as a felony, or for the court to specify a
maximum felony-length term. (
A specific, express finding on the level of the offense is
required. (In re Jorge Q. (1997) 54 Cal.App.4th 223, 238 (Jorge Q.).)
The
People argue that the requisite finding was made here when the court checked
the box for a felony in the minute order
from the October 12 readiness conference and jurisdictional hearing. However, the weight of authority requires an
“express oral on-the-record†finding. (
holds that minute orders are insufficient when the court fails to state on the
record whether the offense should be treated as a felony or misdemeanorâ€];
545, 549 [“the juvenile court did not orally indicate on the record whether the
crime was a felony or misdemeanor [or] use any language that demonstrated an
awareness of its discretion to make such a determinationâ€];
16, 23 [minute order reflected a felony finding, but court did not state the
finding at any hearing].)
The
People speculate that, “[g]iven the minute order for the jurisdictional
hearing, the dispositional court could properly assume the jurisdictional court
had already made a misdemeanor-felony designation.†Even so, the dispositional court had
discretion to reduce the violation to a misdemeanor even if the violation was
found to be a felony at the jurisdictional hearing. “[T]he jurisdictional order is an
intermediate, nonappealable order. [Citation.] . . . . Thus, at
the disposition hearing the court could . . . change Minor’s offense from a
felony to a misdemeanor.†(
32.) “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.†(
Nothing in this record establishes the court’s awareness of its
discretion at the disposition.
III. DISPOSITION
This case is remanded to the
juvenile court to allow that court to exercise its discretion to determine
whether the assault was a felony or a misdemeanor and, if necessary, to
recalculate appellant’s maximum term of confinement. In all other respects, the dispositional
order is affirmed.
_________________________
Siggins,
J.
We concur:
_________________________
McGuiness,
P.J.
_________________________
Jenkins,
J.
