Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ113511. Charles J. Koosed, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Jeffrey Koch, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
The juvenile court found true an allegation that minor had committed battery with the infliction of serious bodily injury. (Pen. Code, § 243, subd. (d).) On appeal, minor contends the matter must be remanded to require the juvenile court to expressly declare, on the record and in exercise of its discretion, whether her offense was a felony or misdemeanor pursuant to Welfare and Institutions Code section 702. We agree that the matter should be remanded for the court to comply with Welfare and Institutions Code section 702. In all other respects, the judgment is affirmed.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
The People filed a Welfare and Institutions Code section 602 petition charging minor with felony battery with infliction of serious bodily injury. (Pen. Code, § 243, subd. (d).) Following a contested jurisdictional hearing, the juvenile court found the allegation true. At disposition, the court declared minor a ward of the court, ordered her committed to 10 to 20 days in juvenile hall, 10 to 20 days in the juvenile work program, placed her on probation, and released her to the physical custody of her mother. The court made no determination of minor’s maximum period of confinement. Nor did it determine, either at the jurisdictional or dispositional hearing, whether minor’s offense should be denominated as a felony or a misdemeanor.
II. DISCUSSION
A violation of Penal Code section 243, subdivision (d) is a “wobbler,” punishable either as a felony or misdemeanor. (Pen. Code, §§ 17, 243, subd. (d).) Minor contends the juvenile court’s failure to expressly state that it was defining the offense, in exercise of its discretion, as a felony or misdemeanor, requires that the matter be remanded. The People concede the issue. We agree.
Section 702 mandates that “[i]f 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.” The language of section 702 “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.) “[T]he purpose of the statute is not solely administrative. . . . [T]he requirement that the juvenile court declare whether a so-called ‘wobbler’ offense was a misdemeanor or felony also serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under . . . section 702.” (Id. at p. 1207.) Furthermore, “neither 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.]” (Id. at p. 1208.) “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 . . . .” (Id. at p. 1209.)
Here, the minute order dated April 23, 2007, denotes minor’s offense as a felony and determines her maximum period of confinement as four years, a felony level commitment. However, the trial court never designated minor’s offense as a felony, nor did it determine her maximum period of confinement. Rather, the court sentenced her to a misdemeanor level commitment. Thus, the record fails to reflect that the court made any declaration regarding the classification of minor’s offense. Furthermore, it does not reflect any indication that the court was aware of its discretion in so classifying the offense. Therefore, the matter must be remanded for the juvenile court to comply with section 702. (In re Manzy W., supra, 14 Cal.4th at p. 1211.)
III. DISPOSITION
The matter is remanded to the juvenile court for an express declaration, in exercise of its discretion, of the classification of minor’s offense pursuant to section 702. In all other respects, the judgment is affirmed.
We concur: Ramirez, P.J., McKinster, J.