Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J08-00593
Margulies, J.
Pursuant to a negotiated disposition, appellant M.B. pleaded no contest to allegations of a Welfare and Institutions Code section 602, subdivision (a) petition that he committed second degree robbery (Pen. Code, § 211), and one felony count of resisting an executive officer (Pen. Code, § 69). The remaining count and enhancement allegations were dismissed. In its dispositional order the court declared appellant to be a ward of the court, placed him in a group home, and set the maximum time of confinement at five years eight months.
Appellant’s sole contention on appeal is that the court failed to declare whether the count of resisting an executive officer was a felony or misdemeanor, and as a result, the matter must be remanded with directions to the court to specify the level of the offense, and, if necessary, recalculate the maximum term of confinement. We find no error, and affirm the judgment.
I. Facts
The petition alleged, in count one, that appellant committed second degree robbery, and alleged two enhancements based upon personal use of a firearm. The underlying facts were that, on March 31, 2008, appellant and another male approached the victim and his sister from behind. Appellant held a gun to the victim and took his cell phone, while the other male went through the victim’s pockets and took $5.
In counts two and three, the petition alleged that appellant had committed felony violations of Penal Code section 69. The underlying facts with respect to count two were that, on February 21, 2008, appellant and several other people attempted to break into the apartment of another young male with whom appellant had recently fought. When police officers arrived, they questioned appellant’s version of events. Appellant became angry, yelled at an officer, and balled up his fist. The officer attempted to use a control hold, but appellant pulled away and lunged at the officer. As the officer again tried to use a control hold, appellant continued to resist and fight. Once he was handcuffed, appellant yelled profanities and resisted getting into the patrol car. The officer ultimately had to use a leg sweep to place appellant in the vehicle. Count three was based upon the circumstances of appellant’s arrest following the robbery. When police officers attempted to stop appellant as he ran toward an alley, appellant slowed to a walk but ignored the command to stop. He finally stopped only after an officer drew his weapon.
II. Analysis
Appellant contends that the court failed expressly to declare whether count two, a “wobbler,” was a felony or a misdemeanor, as required by Welfare and Institutions Code section 702, and In re Manzy W. (1997) 14 Cal.4th 1199, 1203–1209 (Manzy W.) Welfare and Institutions Code section 702 specifies: “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.” In Manzy W.,the minor admitted an allegation of possession of a controlled substance, a wobbler. The petition referred to the offense as “a felony” (Manzy W., at p. 1202) and the dispositional order imposed a felony-length term as the maximum term of confinement (id. at p. 1203), but the juvenile court never expressly stated at the time it accepted the plea, or at the dispositional hearing, or in any signed findings or the order, that it declared the offense to be a felony. The California Supreme Court held that neither the allegation in the petition that the offense is a felony, nor the setting of a felony-level period of physical confinement, could substitute for an explicit finding under Welfare and Institutions Code section 702 declaring the offense a misdemeanor or a felony. The court explained that an express declaration is necessary because one of the purposes of Welfare and Institutions Code section 702 is to ensure that the court actually exercises its discretion. (Manzy W., at pp. 1207–1209.)
“A wobbler is any crime that may be punished as either a misdemeanor or a felony.” (People v. Arroyas (2002) 96 Cal.App.4th 1439, 1443, fn. 3.)
Unlike Manzy W., supra, 14 Cal.4th 1199, the court in this case did expressly declare count two to be a felony, not once, but twice. It did so for the first time after the district attorney informed the court that appellant would plead no contest to counts one and two, in exchange for dismissal of count three and the gun use enhancements, and that the maximum exposure was “five years eight months.” Defense counsel stipulated that there was a factual basis for the plea, and, after advising appellant of his rights, the court made express findings including as follows: “There’s a factual basis for the no-contest plea. And it was given freely and voluntarily. And the allegations of the petition are admitted as true. The degree of those offenses are as a felony . . . .” (Italics added.)
Reading the record as a whole, it is apparent that the court’s declaration that both offenses were felonies was a deliberate exercise of discretion, not a rote repetition of the allegation of the petition that count two was a felony. Prior to making its finding that both offenses were felonies, the court asked appellant how he pleaded to the robbery, which was not a wobbler, and the court referred to it as “a felony.” By contrast, when it asked appellant how he pleaded to count two, a wobbler, the court did not refer to it as a felony despite the characterization of the offense as a felony in the petition. The court then made its declaration that both offenses were felonies as part of its explicit findings upon acceptance of the plea. This declaration satisfied the court’s duty under Welfare and Institutions Code section 702 and California Rules of Court, rule 5.778(f)(9). The court then repeated its declaration that count two was a felony at the beginning of the dispositional hearing. It stated: “The sustained charges here are a 211-212.5(c) second degree robbery as a felony, and a felony Penal Code 69, resisting executive officer. [¶] The maximum custodial time is five years and eight months.” (Italics added.) We do not find appellant’s suggestion that the court merely mistakenly believed that it had previously performed its duty under Welfare and Institutions Code section 702 to be persuasive. To the contrary, the court’s statement at the outset of the dispositional hearing demonstrates the court’s correct understanding that it had previously declared count two to be a felony when it accepted the plea.
The court asked: “And what is your plea to Count Two that on or about February 21st, 2008 . . . you did willfully and unlawfully attempt by means of threats and violence to [deter] and prevent Officer [Yunck] . . . from performing a duty imposed by law and knowingly resisted by use of force and violence . . . the executive officer in the performance of their duty?”
Appellant also suggests the court’s express declaration that count two is a felony is inadequate because the court did not also expressly state it was aware that it had discretion to designate count two as a felony or a misdemeanor. We do not construe Manzy W., supra, 14 Cal.4th 1199, to require more than the declaration of the degree of the offense, which implies awareness that the court has discretion. The very purpose of requiring a formal declaration is to “ensur[e] that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702.” (Manzy W., at p. 1207.) Thus, where, as here, the court makes an express declaration that a “wobbler” is either a misdemeanor or a felony, the declaration itself evidences that the court was aware of and exercised its discretion. These facts distinguish this case from Manzy W., in which the court made no express declaration whether the offense in question was a misdemeanor or felony despite the mandatory terms of Welfare and Institutions Code section 702. (Manzy W., at pp. 1203–1204.) In that context, the court held that, where “the juvenile court violated its clearly stated duty under Welfare and Institutions Code section 702,” and there was no other indication that the juvenile court had considered whether the offense was a misdemeanor or felony, reliance upon the presumption that the court was aware of and properly performed its duties, including the exercise of its discretion, was unwarranted. (Manzy W., at p. 1209.) Nothing in the court’s analysis suggests we may not rely upon such a presumption where the juvenile court did not violate its duty under Welfare and Institutions Code section 702. We conclude that where, as here, a juvenile court expressly declares an offense to be a felony or misdemeanor, it is appropriate to presume that the declaration itself demonstrates an awareness and exercise of discretion.
III. Disposition
The judgment is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.