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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



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         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.




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       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.




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         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.




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