Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV123891
SCOTLAND, P. J.
M.W. (the minor) appeals from an order continuing him as a ward of the juvenile court and committing him to the Sacramento County Boys Ranch after sustaining a charge of receiving stolen property. He contends, and the People agree, that remand is required because the court failed to exercise its discretion whether to declare the crime, a violation of Penal Code section 496, subdivision (a), to be a felony or misdemeanor.
A violation of Penal Code section 496, subdivision (a) is punishable as a felony or as a misdemeanor. (Further section references are to the Penal Code unless otherwise specified.)
Welfare and Institutions Code section 702 states in pertinent part: “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.”
“The requirement [of the section] is obligatory: ‘[Welfare and Institutions Code] section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor.’ [Citations.]” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) “[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.” (Id. at p. 1208.)
However, remand is not required where the record shows 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 re Manzy W., supra, 14 Cal.4th at p. 1209.)
In sustaining the charge, the court said: “So I’m going to sustain the petition as filed, a 496 felony, at this time”; and the clerk’s transcript states the court found “the allegation in Count 1: 496(a) PC, a Felony, true beyond a reasonable doubt and sustained the Subsequent Petition....” However, as the People candidly point out, nothing in the record shows that the court was aware of, or exercised, its discretion whether to find the offense to be a misdemeanor rather than a felony. Consequently, remand is required.
DISPOSITION
The matter is remanded to the juvenile court with directions to exercise its discretion to declare the violation to be a felony or a misdemeanor.
We concur: SIMS, J., CANTIL-SAKAUYE, J.