Filed 3/19/15 In re G.A. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


In re G.A., a Person Coming Under the                                H041172
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. 312-JV39682 C&D)


THE PEOPLE,

         Plaintiff and Respondent,

         v.

G.A.,

         Defendant and Appellant.



         G.A. appeals from a dispositional order continuing him as a ward after he admitted
a burglary count and the court found true a methamphetamine possession count. His sole
contention on appeal is that a remand is required because the juvenile court failed to
exercise its discretion to declare the burglary count to be either a felony or a
misdemeanor. We conclude that, because the record contains the court’s express oral
statement that it was aware of its discretion, the court’s written declaration in the
dispositional order that the burglary count was a felony was sufficient to obviate a
remand for an oral declaration to the same effect.
                                      I. Background
       G.A. was declared a ward and placed on probation in January 2013 after he
admitted that he had committed felony battery with serious bodily injury (Pen. Code,
§§ 242, 243, subd. (d)). In October 2013, G.A. admitted that he had violated his
probation and was continued on probation.
       In January 2014, a petition was filed alleging that G.A. had possessed
methamphetamine (former Health & Saf. Code, § 11377, subd. (a)). In February 2014, a
petition was filed alleging that G.A. had committed second degree burglary (Pen. Code,
§§ 459, 460, subd. (b)). On April 10, 2014, a contested jurisdictional hearing was held on
the methamphetamine allegation, and the court found it true. The court also explicitly
found the methamphetamine count to be a felony. “The court is mindful of its discretion
to consider whether or not this should be sustained as a misdemeanor or whether or not
it’s a wobbler. Having exercised that discretion, the court will sustain the charge as a
felony.”
       G.A. admitted the burglary allegation at the April 10, 2014 hearing and submitted
a waiver form. The court accepted G.A.’s admission of the burglary count, and G.A.’s
trial counsel said: “I would like to be heard as to whether the court is going to be
sustaining as a felony or misdemeanor when the time comes.” The court responded: “It
is charged as a felony. It could also be sustained as a misdemeanor. [G.A.’s trial
counsel] has indicated he wishes to address the court on that issue, and I’ll give him the
opportunity at this time.” G.A.’s trial counsel argued that the court “should sustain this
petition as a misdemeanor” based on the circumstances of the offense. The prosecutor
argued that there were facts supporting treating the burglary offense as a felony.
       The court did not make an express declaration at the jurisdictional hearing but
instead deferred the issue to be resolved at disposition. It declared: “The court will take
the point under submission and make formal findings on whether the count will be
sustained as a felony or misdemeanor at the time of disposition which is the court’s

                                             2
prerogative to defer. In the alternative, [G.A.], the court would also consider if I decide
to sustain it as a felony, it could also indicate to you that [if] you are successful in
fulfilling the terms and conditions of this next probation grant and case plan that I will
make a notation that you can exercise your right to request a reduction pursuant to section
17 at the end of your probation term should you be successful. So you have the option
there and the court will consider it both at the appropriate time. For the time being, the
matter will then be continued then for a disposition recommendation.” (Italics added.)
       The waiver form, which the court signed on the same day as the jurisdictional
hearing, contained checkboxes for the court to declare the burglary offense to be a felony
or a misdemeanor, but the juvenile court did not utilize those checkboxes. Instead, next
to these checkboxes on the waiver form, it wrote “TBD @ dispo.” The jurisdictional
order from the April 10, 2014 hearing, which was signed by the juvenile court on that
same day listed the admitted burglary count next to a checkbox that was checked for
“Felony” and below which the court had checked a checkbox that read: “The court has
considered whether the above offense(s) should be felonies or misdemeanors.” Since, at
the jurisdictional hearing, the court expressly deferred a decision on the misdemeanor or
felony status of the burglary count, these notations at the time of the jurisdictional
hearing clearly did not amount to an express declaration that the burglary count was a
felony.
       The dispositional hearing was held on May 29, 2014. G.A. was continued as a
ward on probation. The court did not orally declare the burglary offense to be a felony or
a misdemeanor at the dispositional hearing. However, the dispositional order from the
May 2014 hearing, which was signed by the judge on the same date as the dispositional
hearing, identified the burglary count as a felony beneath a checked checkbox that read:
“The court previously sustained the following counts. Any charges which may be
considered a misdemeanor or a felony for which the court has not previously specified
the level of offense are now determined to be as follows.”

                                               3
                                        II. Analysis
       Second degree burglary may be punished as either a felony or a misdemeanor.
(Pen. Code, §§ 461, subd. (b), 1170, subd. (h).) “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.” (Welf.
& Inst. Code, § 702, italics added.)
       G.A. argues that “[b]ecause the juvenile court failed to make an explicit on-the-
record declaration as to the classification of minor’s offense—as it had promised to do so
[sic]—this matter should be remanded to the juvenile court for this required declaration.”
He contends that an “oral determination” was required and that the language of the
dispositional order is inadequate to assure us that the juvenile court exercised its
discretion as to the burglary count because the court also listed the methamphetamine
count that it had already declared to be a felony at the jurisdictional hearing. The
Attorney General proffers a concession that a remand is required.
       In In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy), the California Supreme Court
held that a remand was required where the juvenile court had failed to make an express
declaration as to whether the offense was a felony or a misdemeanor. In Manzy, the
offense had been alleged as a felony, and Manzy had admitted the allegation. (Manzy, at
p. 1202.) The juvenile court had committed Manzy to the California Youth Authority
and set his maximum term of physical confinement at three years, a felony-level term.
(Manzy, at p. 1203.) Nevertheless, the California Supreme Court held that Welfare and
Institutions Code section 702’s requirement of an express declaration required a remand.
The court noted that a mere reference to the offense as a felony in the minutes of the
dispositional hearing would not obviate the need for an express declaration by the court.
(Manzy, at pp. 1207-1208.)
       The California Supreme Court pointed out in Manzy that a remand was not
“ ‘automatic’ ” whenever the juvenile court failed to make an express declaration.

                                              4
(Manzy, supra, 14 Cal.4th at p. 1209.) “[T]he record in a given case may show that the
juvenile 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. In such case,
when remand would be merely redundant, failure to comply with the statute would
amount to harmless error. We reiterate, however, that setting 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.” (Ibid.)
       The question in this case is whether the record shows that the juvenile court “was
aware of, and exercised its discretion to determine the felony or misdemeanor nature” of
the burglary count. (Manzy, supra, 14 Cal.4th at p. 1209.) If the record shows that the
court was “aware of its discretion,” a remand “would be merely redundant.” (Ibid.)
Here, the juvenile court expressly declared on the record at the jurisdictional hearing that
it was well aware of its discretion to treat the burglary offense as a misdemeanor,
entertained argument on the issue, and explicitly deferred its decision on this contested
point until disposition. While the juvenile court did not orally declare the burglary
offense to be a felony or a misdemeanor during the dispositional hearing, its
dispositional order expressly declared the burglary offense to be a felony.
       We do not agree with G.A. that the court’s inclusion of the methamphetamine
count under the same preprinted language on the dispositional order detracted from the
juvenile court’s express declaration as to the burglary count. Although the dispositional
order’s preprinted language is inadequate by itself to demonstrate that the juvenile court
was aware of its discretion to treat the burglary count as a misdemeanor, that was not
necessary in this case because the court had already expressly acknowledged its
discretion on the record at the jurisdictional hearing, entertained argument on the issue,
and deferred only the decision to disposition. By explicitly making that decision in its

                                              5
dispositional order, the juvenile court expressly and unambiguously made the decision
that it had deferred. Its reiteration of its finding that the methamphetamine count was a
felony did not indicate otherwise. Hence, a remand is not required.


                                     III. Disposition
       The order is affirmed.




                                             6
                                   _______________________________
                                   Mihara, J.



WE CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Márquez, J.




                                     7
