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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.




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         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.




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       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.




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       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




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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


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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


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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


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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.




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