Filed 8/31/16 In re G.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 G.A., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, E064938 Plaintiff and Respondent, (Super.Ct.No. RIJ1401155) v. OPINION G.A.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jean P. Leonard (retired
judge of the Riverside Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of
the Cal. Const.) and Roger A. Luebs, Judges. Affirmed in part; reversed in part with
directions.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and
Appellant.
1 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Sabrina Y. Lane-Erwin and Karl
T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant G.A. (minor) asks for a remand so the juvenile court can
expressly consider and determine whether his second degree burglary offense is a felony
or a misdemeanor. The People counter that the record shows the court was aware of and
exercised its discretion to declare the offense a felony. As discussed below, the issue of
whether the offense 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.
FACTUAL AND PROCEDURAL HISTORY
1. PROCEDURAL BACKGROUND
On April 28, 2015, a first amended petition was filed under Welfare and
Institutions Code section 602, alleging that minor committed misdemeanor battery on
July 4, 2014.
On September 18, 2015, a subsequent petition was filed under Welfare and
Institutions Code section 602, alleging that minor committed felony burglary under Penal
Code section 459 on March 22, 2015, by breaking into a vehicle with intent to commit
theft.
2 On November 16, 2015, at a contested jurisdictional hearing, the juvenile court
made a true finding that minor committed felony second degree burglary and issued stay
away and no contact orders for the victims and their residences. On the same date, minor
admitted committing misdemeanor battery.
On December 21, 2015, at minor’s dispositional hearing, the court adjudged minor
a ward of the court and committed minor to a juvenile work program.
On November 25, 2015, minor filed a notice of appeal.
B. FACTUAL BACKGROUND
On March 21, 2015, at approximately 10 p.m., Tania Aguilar parked her car near
her apartment in Riverside, locking the doors and closing the windows. She also
activated her car alarm.
Between 2 and 3 a.m., Aguilar could not sleep because of music coming from the
apartment above her. She went to the apartment and asked the occupants to turn down
the music. Two people answered the door, one of whom she recognized as minor, having
seen him approximately eight times previously. They agreed to turn down the music and
Aguilar returned to her apartment. Approximately 15 minutes later, Aguilar heard her
mother, Amelia Flores, who lived in the apartment next to hers, calling her. Aguilar
opened her apartment door.
Aguilar’s father, Ernesto Vasquez, and Flores heard Aguilar’s car alarm activate.
Vasquez went outside first. When he did not return, Flores went outside.
3 Vasquez saw two people going through the trunk of Aguilar’s car, one of whom
was minor. When Vasquez asked why they were going through his daughter’s trunk, one
of the juveniles—not minor—approached Vasquez with a knife as though to assault
Vasquez. However, the juvenile with the knife walked past Vasquez and went up the
stairs, followed by minor.
When Flores got outside, she saw minor and the other juvenile. The juvenile with
a knife threatened Flores with it before going upstairs and into the apartment.
When Aguilar opened her door, she saw the juvenile with the knife threaten her
mother. The juvenile and minor then walked up the stairs to the apartment. Aguilar
recognized them from her encounter with them approximately 15 minutes prior. When
Aguilar saw her car, the trunk was closed. She later discovered an auxiliary cord missing
from the front of her car. Nothing was missing from her trunk and the car had no
damage.
DISCUSSION
Minor contends that the juvenile court failed to specifically acknowledge and
exercise its discretion as to whether the offense minor committed should be designated as
a felony or a misdemeanor. Minor, therefore, argues the matter should be remanded to
the juvenile court so the court can expressly consider and determine whether his second
degree offense is a felony or a misdemeanor.
Welfare and Institutions Code 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
4 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.
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
Welfare and Institutions Code section 702 requirement by constituting an implied
declaration that the offense was a felony. (Id. at p. 1207) The California Supreme Court
5 held that imposing a felony-length term did not satisfy Welfare and Institutions Code
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.)
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Filed 8/31/16 In re G.A. 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 G.A., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, E064938 Plaintiff and Respondent, (Super.Ct.No. RIJ1401155) v. OPINION G.A.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jean P. Leonard (retired
judge of the Riverside Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of
the Cal. Const.) and Roger A. Luebs, Judges. Affirmed in part; reversed in part with
directions.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and
Appellant.
1 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Sabrina Y. Lane-Erwin and Karl
T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant G.A. (minor) asks for a remand so the juvenile court can
expressly consider and determine whether his second degree burglary offense is a felony
or a misdemeanor. The People counter that the record shows the court was aware of and
exercised its discretion to declare the offense a felony. As discussed below, the issue of
whether the offense 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.
FACTUAL AND PROCEDURAL HISTORY
1. PROCEDURAL BACKGROUND
On April 28, 2015, a first amended petition was filed under Welfare and
Institutions Code section 602, alleging that minor committed misdemeanor battery on
July 4, 2014.
On September 18, 2015, a subsequent petition was filed under Welfare and
Institutions Code section 602, alleging that minor committed felony burglary under Penal
Code section 459 on March 22, 2015, by breaking into a vehicle with intent to commit
theft.
2 On November 16, 2015, at a contested jurisdictional hearing, the juvenile court
made a true finding that minor committed felony second degree burglary and issued stay
away and no contact orders for the victims and their residences. On the same date, minor
admitted committing misdemeanor battery.
On December 21, 2015, at minor’s dispositional hearing, the court adjudged minor
a ward of the court and committed minor to a juvenile work program.
On November 25, 2015, minor filed a notice of appeal.
B. FACTUAL BACKGROUND
On March 21, 2015, at approximately 10 p.m., Tania Aguilar parked her car near
her apartment in Riverside, locking the doors and closing the windows. She also
activated her car alarm.
Between 2 and 3 a.m., Aguilar could not sleep because of music coming from the
apartment above her. She went to the apartment and asked the occupants to turn down
the music. Two people answered the door, one of whom she recognized as minor, having
seen him approximately eight times previously. They agreed to turn down the music and
Aguilar returned to her apartment. Approximately 15 minutes later, Aguilar heard her
mother, Amelia Flores, who lived in the apartment next to hers, calling her. Aguilar
opened her apartment door.
Aguilar’s father, Ernesto Vasquez, and Flores heard Aguilar’s car alarm activate.
Vasquez went outside first. When he did not return, Flores went outside.
3 Vasquez saw two people going through the trunk of Aguilar’s car, one of whom
was minor. When Vasquez asked why they were going through his daughter’s trunk, one
of the juveniles—not minor—approached Vasquez with a knife as though to assault
Vasquez. However, the juvenile with the knife walked past Vasquez and went up the
stairs, followed by minor.
When Flores got outside, she saw minor and the other juvenile. The juvenile with
a knife threatened Flores with it before going upstairs and into the apartment.
When Aguilar opened her door, she saw the juvenile with the knife threaten her
mother. The juvenile and minor then walked up the stairs to the apartment. Aguilar
recognized them from her encounter with them approximately 15 minutes prior. When
Aguilar saw her car, the trunk was closed. She later discovered an auxiliary cord missing
from the front of her car. Nothing was missing from her trunk and the car had no
damage.
DISCUSSION
Minor contends that the juvenile court failed to specifically acknowledge and
exercise its discretion as to whether the offense minor committed should be designated as
a felony or a misdemeanor. Minor, therefore, argues the matter should be remanded to
the juvenile court so the court can expressly consider and determine whether his second
degree offense is a felony or a misdemeanor.
Welfare and Institutions Code 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
4 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.
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
Welfare and Institutions Code section 702 requirement by constituting an implied
declaration that the offense was a felony. (Id. at p. 1207) The California Supreme Court
5 held that imposing a felony-length term did not satisfy Welfare and Institutions Code
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
the [offense] to be a felony.’” (Manzy W., supra, 14 Cal.4th at p. 1208, fn. omitted, 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 Welfare and
Institutions Code 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 Welfare and Institutions Code 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
6 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, nothing in the record indicates the juvenile court was aware that minor’s
offense could be either a felony or a misdemeanor. The petition charged the offense
exclusively as a felony. At the jurisdictional hearing, the court referred to the offense as
“a violation of Penal Code section 459, a felony, it looks like auto burglary . . . .” At the
close of the hearing, the court found beyond a reasonable doubt that minor “violated
Penal Code section 459, a felony, burglary in the second-degree . . . .” Moreover, the
court referred exclusively to the three-year maximum felony-length commitment period
for the burglary offense in the taking of minor’s admission on the trailing misdemeanor
battery petition. The judge who took this admission was not the sentencing judge.
Additionally, the probation report referred exclusively to the burglary allegation
against minor as a felony allegation—never mentioned that it could also be a
misdemeanor. At the dispositional hearing, neither the minute order nor the reporter’s
transcript refer to the burglary charge against minor as either a felony or a misdemeanor.
The parties agreed that they were “going forward with the recommendations in the 12-16-
2015 [probation] report,” which referred to the burglary allegation against minor
7 exclusively as a felony allegation. The word “misdemeanor” is not used anywhere in the
record in reference to the burglary offense.
Moreover, neither the parties nor the court mentioned the possibility of deeming
the second degree burglary offense as 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 of its
discretion and a declaration as to whether the burglary offense is deemed a misdemeanor
or felony.
The People, however, contend that the court’s numerous statements indicating the
burglary offense to be a felony indicates the juvenile court’s awareness and exercise of its
discretion in declaring the offense a felony. We disagree. The court here simply recited
the charge as made in the petition. The statements do not reflect on whether the court
was aware of the fact the offense was a wobbler and that it had discretion to reduce it to a
misdemeanor. Further, there is no evidence in the record the court exercised its
discretion.
Therefore, the case is remanded for the juvenile court to exercise its discretion to
determine whether the wobbler burglary offense should be deemed a misdemeanor or a
felony.
DISPOSITION
The matter is reversed and remanded with directions for the juvenile court to
clarify whether the second degree burglary offense, a violation of Penal Code section
8 459, 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
MILLER J.
We concur:
HOLLENHORST Acting P. J.
CODRINGTON J.