Filed 4/28/15 In re P.D. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


In re P.D., a Person Coming Under the                                H041371
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. 3-13 JV40242A)


THE PEOPLE,

         Plaintiff and Respondent,

             v.

P.D.,

         Defendant and Appellant.



                                                   INTRODUCTION
         Appellant P.D. appeals from a dispositional order placing him on probation with
various terms and conditions, following a finding that he possessed a knife and a razor
blade on school grounds (Pen. Code, § 626.10, subd. (a); counts 1 & 3). On appeal,
appellant argues and the Attorney General concedes that the juvenile court failed to make
express findings as to whether his offenses were felonies or misdemeanors, as required by
Welfare and Institutions Code section 702. Because we conclude that the juvenile court
did not make an express declaration, we will reverse and remand the dispositional order
with direction.
                                      BACKGROUND
       On August 15, 2013, the district attorney filed a juvenile wardship petition under
Welfare and Institutions Code section 602, subdivision (a), alleging felony possession of
a knife on school grounds (Pen. Code, § 626.10, subd. (a); count 1), misdemeanor
exhibiting a knife (Pen. Code, § 417, subd. (a)(1); count 2), felony possession of a razor
blade on school grounds (Pen. Code, § 626.10, subd. (a); count 3), and misdemeanor
exhibiting a razor blade (Pen. Code, § 417, subd. (a)(1); count 4).
       At a hearing on January 21, 2014, appellant was found incompetent to stand trial,
and the court ordered restoration services. On June 5, 2014, after the juvenile court
determined that his competency was restored, appellant admitted counts 1 and 3.
Counts 2 and 4 were dismissed. At the hearing, before appellant admitted to counts 1 and
3, the juvenile court orally stated that the two offenses were felonies. Additionally, the
minute order for the hearing on June 5, 2014, notes that appellant admitted two violations
of Penal Code section 626.10 (counts 1 & 3), and the box labeled “Felony” next to each
count is checked-marked.
       On July 14, 2014, the juvenile court declared appellant to be a ward of the court
and placed him on probation with various conditions, including electronic monitoring.
The court’s dispositional order included a notation stating that appellant’s offenses were
felonies.
                                       DISCUSSION
       Appellant contends that the juvenile court failed to make an express finding,
pursuant to Welfare and Institutions Code section 702, as to whether his offenses were
felonies or misdemeanors. He argues that the matter should be remanded for an express
finding. The Attorney General concedes that the juvenile court did not make an express
determination and that the matter should be remanded.
       Welfare and Institutions Code section 702 provides, in pertinent part: “If the
minor is found to have committed an offense which would in the case of an adult be
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punishable alternatively as a felony or a misdemeanor, the court shall declare the offense
to be a misdemeanor or felony.” The statute “is unambiguous. It requires an explicit
declaration by the juvenile court whether an offense would be a felony or misdemeanor in
the case of an adult.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) The
required declaration as to whether an offense is a misdemeanor or felony may be made at
the jurisdictional hearing or the dispositional hearing. (Cal. Rules of Court, rules
5.780(e)(5), 5.790(a)(1), 5.795(a).)1 “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.” (Rule 5.780(e)(5), italics added; see
also rules 5.790(a)(1), 5.795(a).) The juvenile court’s determination must also be noted
in an order or in the minutes from the hearing. (Rules 5.780(e), 5.795(a).)
          The requirement that the juvenile court make an express determination “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.’ ” (Manzy W., supra, 14 Cal.4th at p. 1207.) “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.” (Id. at p. 1209.)
          A juvenile court’s failure to make the necessary declaration “requires remand . . .
for strict compliance with Welfare and Institutions Code section 702.” (Manzy W., supra,
14 Cal.4th at p. 1204.) On remand, the maximum period of physical confinement may
need to be recalculated based on the juvenile court’s express declaration. (See id. at
p. 1211.)


          1
              All further rules references are to the California Rules of Court, unless otherwise
stated.
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       Both of appellant’s offenses for possessing a knife and a razor blade on school
grounds could have been punishable as either felonies or misdemeanors. (See Pen. Code,
§ 626.10, subd. (a); see also In re William V. (2003) 111 Cal.App.4th 1464, 1468, fn. 2.)
The juvenile wardship petition and the minute orders from the June 5, 2014 hearing and
dispositional hearing state that counts 1 and 3 are felonies. Additionally, the juvenile
court orally pronounced that counts 1 and 3 were felonies before appellant admitted these
offenses. Despite this record, there is nothing to demonstrate that the court was aware of
and exercised its discretion to treat appellant’s offenses as felonies or misdemeanors.
Therefore, remand is appropriate to allow the court to make an express declaration as to
whether these offenses are felonies or misdemeanors. (See Manzy W., supra, 14 Cal.4th
at p. 1209.) In the event that the court elects to treat the offenses as misdemeanors, it
shall recalculate the maximum time of confinement accordingly.
                                       DISPOSITION
       The dispositional order is reversed. The matter is remanded to the juvenile court
with directions to make an express declaration, pursuant to Welfare and Institutions Code
section 702, as to whether counts 1 and 3 are felonies or misdemeanors.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           MÁRQUEZ, J.




____________________________________
           GROVER, J.




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