Filed 7/21/14 In re A.M. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, E060029 Plaintiff and Respondent, (Super.Ct.No. INJ1300182) v. OPINION A.M.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Lawrence P. Best,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed with directions.
Loleena Ansari, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy
Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
1 A.M., the minor, asks for a remand so the juvenile court can expressly consider
and determine whether each of his two grand theft offenses is a felony or a misdemeanor.
The People counter that the record shows the court was aware of and exercised its
discretion to declare each offense a felony. As discussed below, the issue of whether
each of the offenses should be treated as a felony or a misdemeanor was never discussed
or, as far as is revealed in the record, overtly considered. We remand the matter to the
juvenile court.
FACTS AND PROCEDURE
May 2013 Theft and First Delinquency Petition (May Petition)
On May 15, 2013, the minor and his older brother approached a 13-year-old boy
who was riding his bicycle at a skate park in Coachella. The boy initially declined when
the minor told him to give them his bicycle. The boy gave the bicycle to the minor when
the brother held something that appeared to be a knife under a cloth and said “unless you
want to get killed.” Police later found the minor and his brother with the bicycle, but no
knife.
On May 16, 2013, the People filed a juvenile delinquency petition regarding the
minor pursuant to Welfare and Institutions Code section 602.1 The People alleged the
minor committed robbery (Pen. Code, § 211). On May 21, 2013, the court amended the
petition to grand theft (Pen. Code, § 487, subd. (c).) The minor admitted the grand theft
allegation and the juvenile court dismissed the robbery allegation.
2 On June 6, 2013, without the People’s agreement, the court declined to declare the
minor a ward and instead placed him on six months of informal probation under section
725, subdivision (a).
September 2013 Theft and Second Delinquency Petition (September Petition)
On September 17, 2013, the minor and his brother approached an 11-year-old boy
in front of an apartment building. The minor asked the boy if he could borrow the boy’s
iPod. The boy handed him the iPod because he was afraid. The minor handed the iPod
to his brother, who ran away and jumped a fence. The minor walked away. Police later
found the brother with the iPod.
On September 18, 2013, the People filed a section 602 petition regarding the
minor. The People alleged the minor committed robbery and grand theft. On September
19, 2013 the juvenile court found the minor had violated the terms of his informal
probation and detained him in juvenile hall.
On October 8, 2013, the court heard testimony from the victim and from the
arresting officer. The court found the grand theft allegation to be true.
On October 22, 2013, the court revoked the minor’s probation on the May petition,
and set aside both the May petition and the disposition in that matter. The court declared
the minor a ward of the court as to both petitions and placed him on formal probation.
This appeal followed.
1 All section references are to the Welfare and Institutions Code unless otherwise indicated.
3 DISCUSSION
The minor argues the matter should be remanded to the juvenile court so the court
can expressly consider and determine whether each of his two grand theft offenses is a
felony or a misdemeanor.
Appellant contends the juvenile court did not properly determine on either
occasion whether the grand theft offense was deemed a felony or misdemeanor under
section 702. A violation of Penal Code section 487, subdivision (c), is punishable as a
felony or a misdemeanor. (Pen. Code, § 489, subd. (b).)
Section 702 provides that in a juvenile proceeding, “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.”
California Rules of Court, rule 5.795, subdivision (a), further provides that
“Unless determined previously, the court must find and note in the minutes the degree of
the offense committed by the youth, and whether it would be a felony or a misdemeanor
had it been committed by an adult. If any offense may be found to be either a felony or a
misdemeanor, the court must consider which description applies and expressly declare on
the record that it has made such consideration and must state its determination as to
whether the offense is a misdemeanor or a felony.” These statutory provisions indicate
that merely stating that the offense is a felony is not sufficient. The court must also make
an express finding of the nature of the offense.
4 In large part, the purpose of requiring the court to declare whether an offense is a
felony or misdemeanor is to facilitate determining the maximum term of physical
confinement for a wobbler offense. (In re Manzy W. (1997) 14 Cal.4th 1199, 1206
(Manzy W.).) The requirement also “serves the purpose of ensuring that the juvenile
court is aware of, and actually exercises its discretion under Welfare and Institutions
Code section 702.” (Id. at p. 1207.)
In Manzy W., supra, 14 Cal.4th at p. 1199 the juvenile court did not expressly
declare whether the minor’s wobbler offense was deemed a felony or misdemeanor. The
People argued that the juvenile court’s imposition of a felony-length term satisfied the
section 702 requirement by constituting an implied declaration that the offense was a
felony. (Id. at p. 1207) The California Supreme Court in that case held that imposing a
felony-length term did not satisfy section 702 requiring the court to declare whether the
offense is a felony or misdemeanor if it is unclear from the record whether the juvenile
court considered the possibility of sentencing the offender as a misdemeanant. (Id. at p.
1201.)
The California Supreme Court remanded the case to the juvenile court for
clarification as to whether it had considered the option of sentencing the offender to a
misdemeanor. The court explained: “[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.]
Instead, ‘the crucial fact is that the court did not state at any of the hearings that it found
5 the [offense] to be a felony.’ [Citation.]” (Manzy W., supra, 14 Cal.4th at p. 1208, citing
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Filed 7/21/14 In re A.M. CA4/2
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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, E060029 Plaintiff and Respondent, (Super.Ct.No. INJ1300182) v. OPINION A.M.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Lawrence P. Best,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed with directions.
Loleena Ansari, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy
Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
1 A.M., the minor, asks for a remand so the juvenile court can expressly consider
and determine whether each of his two grand theft offenses is a felony or a misdemeanor.
The People counter that the record shows the court was aware of and exercised its
discretion to declare each offense a felony. As discussed below, the issue of whether
each of the offenses should be treated as a felony or a misdemeanor was never discussed
or, as far as is revealed in the record, overtly considered. We remand the matter to the
juvenile court.
FACTS AND PROCEDURE
May 2013 Theft and First Delinquency Petition (May Petition)
On May 15, 2013, the minor and his older brother approached a 13-year-old boy
who was riding his bicycle at a skate park in Coachella. The boy initially declined when
the minor told him to give them his bicycle. The boy gave the bicycle to the minor when
the brother held something that appeared to be a knife under a cloth and said “unless you
want to get killed.” Police later found the minor and his brother with the bicycle, but no
knife.
On May 16, 2013, the People filed a juvenile delinquency petition regarding the
minor pursuant to Welfare and Institutions Code section 602.1 The People alleged the
minor committed robbery (Pen. Code, § 211). On May 21, 2013, the court amended the
petition to grand theft (Pen. Code, § 487, subd. (c).) The minor admitted the grand theft
allegation and the juvenile court dismissed the robbery allegation.
2 On June 6, 2013, without the People’s agreement, the court declined to declare the
minor a ward and instead placed him on six months of informal probation under section
725, subdivision (a).
September 2013 Theft and Second Delinquency Petition (September Petition)
On September 17, 2013, the minor and his brother approached an 11-year-old boy
in front of an apartment building. The minor asked the boy if he could borrow the boy’s
iPod. The boy handed him the iPod because he was afraid. The minor handed the iPod
to his brother, who ran away and jumped a fence. The minor walked away. Police later
found the brother with the iPod.
On September 18, 2013, the People filed a section 602 petition regarding the
minor. The People alleged the minor committed robbery and grand theft. On September
19, 2013 the juvenile court found the minor had violated the terms of his informal
probation and detained him in juvenile hall.
On October 8, 2013, the court heard testimony from the victim and from the
arresting officer. The court found the grand theft allegation to be true.
On October 22, 2013, the court revoked the minor’s probation on the May petition,
and set aside both the May petition and the disposition in that matter. The court declared
the minor a ward of the court as to both petitions and placed him on formal probation.
This appeal followed.
1 All section references are to the Welfare and Institutions Code unless otherwise indicated.
3 DISCUSSION
The minor argues the matter should be remanded to the juvenile court so the court
can expressly consider and determine whether each of his two grand theft offenses is a
felony or a misdemeanor.
Appellant contends the juvenile court did not properly determine on either
occasion whether the grand theft offense was deemed a felony or misdemeanor under
section 702. A violation of Penal Code section 487, subdivision (c), is punishable as a
felony or a misdemeanor. (Pen. Code, § 489, subd. (b).)
Section 702 provides that in a juvenile proceeding, “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.”
California Rules of Court, rule 5.795, subdivision (a), further provides that
“Unless determined previously, the court must find and note in the minutes the degree of
the offense committed by the youth, and whether it would be a felony or a misdemeanor
had it been committed by an adult. If any offense may be found to be either a felony or a
misdemeanor, the court must consider which description applies and expressly declare on
the record that it has made such consideration and must state its determination as to
whether the offense is a misdemeanor or a felony.” These statutory provisions indicate
that merely stating that the offense is a felony is not sufficient. The court must also make
an express finding of the nature of the offense.
4 In large part, the purpose of requiring the court to declare whether an offense is a
felony or misdemeanor is to facilitate determining the maximum term of physical
confinement for a wobbler offense. (In re Manzy W. (1997) 14 Cal.4th 1199, 1206
(Manzy W.).) The requirement also “serves the purpose of ensuring that the juvenile
court is aware of, and actually exercises its discretion under Welfare and Institutions
Code section 702.” (Id. at p. 1207.)
In Manzy W., supra, 14 Cal.4th at p. 1199 the juvenile court did not expressly
declare whether the minor’s wobbler offense was deemed a felony or misdemeanor. The
People argued that the juvenile court’s imposition of a felony-length term satisfied the
section 702 requirement by constituting an implied declaration that the offense was a
felony. (Id. at p. 1207) The California Supreme Court in that case held that imposing a
felony-length term did not satisfy section 702 requiring the court to declare whether the
offense is a felony or misdemeanor if it is unclear from the record whether the juvenile
court considered the possibility of sentencing the offender as a misdemeanant. (Id. at p.
1201.)
The California Supreme Court remanded the case to the juvenile court for
clarification as to whether it had considered the option of sentencing the offender to a
misdemeanor. The court explained: “[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.]
Instead, ‘the crucial fact is that the court did not state at any of the hearings that it found
5 the [offense] to be a felony.’ [Citation.]” (Manzy W., supra, 14 Cal.4th at p. 1208, citing
In re Kenneth H. (1983) 33 Cal.3d 616, 619-620.)
When there is nothing in the record indicating that the juvenile court considered
whether to deem the wobbler offense a felony or misdemeanor, the court will not
presume the juvenile court properly exercised its discretion under section 702. (Manzy
W., supra, 14 Cal.4th at p. 1209.) However, if the record shows that the court was aware
of such discretion and properly exercised it, remand is redundant and noncompliance
with section 702 constitutes harmless error. (Ibid.)
As explained in Manzy W., “[S]etting of a felony-length maximum term period of
confinement, by itself, does not eliminate the need for remand when the statute has been
violated. 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.” (Manzy W., supra, 14 Cal.4th at p. 1209.) The
Manzy court concluded that, although the juvenile court imposed a felony-length term of
confinement, it did not mention exercising its discretion in determining whether the
offense was a misdemeanor or felony and therefore it would be mere speculation to
assume the court was aware it had such discretion and exercised it. (Id. at p. 1210)
Here, regarding the May petition, no mention is made in the petition or the
probation report, or by the court, that the offense is a wobbler and could be deemed either
a misdemeanor or a felony. At the jurisdiction hearing, the People orally amended the
petition to add the grand theft offense: “The People would be moving to add a count 2, a
487(c).” After questioning the minor, the court stated, “[Minor], what we are talking
6 about is today we just added a second paragraph to your petition. That paragraph says
you committed a violation of section 487(c) of the Penal Code. That is a three-year
felony.” The court later said when taking the minor’s admission “To the added paragraph
2, 487(c) of the Penal Code, a three-year felony, do you admit or deny that?” In the
probation report, the offense is referred to, without discussion, as a felony. At disposition
on June 6, 2013, the juvenile court did not address whether the offense was a felony or a
misdemeanor.
Regarding the September petition, again the record does not indicate that the court
considered whether the offense should be a felony or a misdemeanor. The People
included in the petition “PARAGRAPH 2,” which alleged the minor committed felony
grand theft: “That said minor committed a violation of Penal Code section 487,
subdivision (c), a felony . . . .” At the conclusion of the contested jurisdictional hearing,
the juvenile court found true the allegation that the minor committed grand theft, and
again described it as “a three-year felony,” but otherwise did not address the possibility
that it could be a misdemeanor. Again the offense is referred to as a felony in the
probation report. Neither did the issue arise at the disposition hearing.
With regard to both petitions, neither the parties nor the court mentioned the
possibility of deeming the grand theft offense a misdemeanor. There is no indication in
the record that the court considered deeming the offense a misdemeanor or that the court
was even aware it had the discretion to do so. As a consequence, under the clear rule set
forth in Manzy W., we must remand the case to the juvenile court for the court’s exercise
7 of its discretion and a declaration as to whether each of the two grand theft offenses is
deemed a misdemeanor or felony.
DISPOSITION
The matter is remanded to allow the juvenile court to clarify as to each of the two
petitions whether the grand theft, a violation of Penal Code section 487, subdivision (c),
is a felony or a misdemeanor, and to adjust the disposition if necessary. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
RICHLI J.
MILLER J.