Opinion
C083735
05-30-2018
In re ELIJAH S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ELIJAH S., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV136835)
A petition filed August 31, 2015, alleged that then 15-year-old Elijah S. (the minor) came within the provisions of Welfare and Institutions Code section 602 in that he possessed a short-barreled shotgun (Pen. Code, § 33210) and committed the offense in support of a criminal street gang (§ 186.22, subd. (b)(1)). The minor admitted violating section 33210, the juvenile court found the offense was a felony, and the gang allegation was dismissed. The court adjudged the minor a ward of the court and placed the minor on probation subject to certain terms and conditions including that he "[n]ot own or have any dangerous weapons in his possession" and "[o]bey all laws."
Undesignated statutory references are to the Penal Code.
The minor violated probation by failing to obey the probation department's directive to report to a meeting with a youth team. The court reinstated the minor on probation.
A petition filed October 17, 2016, alleged the minor came within the provisions of Welfare and Institutions Code section 602 in that he committed felony violations of section 25850, subdivision (a) (carrying a loaded firearm in a public place—count one), section 25400, subdivision (a)(2) (carrying a concealed weapon—count two), and section 29610 (minor in possession of a concealable firearm—count three).
After a contested jurisdictional hearing, the court found all three allegations of the October 2016 petition to be true. At the dispositional hearing, the court committed the minor to an out-of-state placement.
The minor appeals. His sole contention is that remand is required because the juvenile court failed to declare whether his 2015 offenses were felonies or misdemeanors and there is no indication in the record that the court was aware of its discretion. We agree and will remand.
DISCUSSION
Welfare and Institutions Code section 702 provides, in relevant part, as follows: "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 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.' " (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) "[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.) Remand for compliance with section 702 is required unless 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." (Id. at p. 1209.)
The minor argues "at no time did the juvenile court declare [the minor's] firearm offenses felonies." He argues each of his offenses was a "wobbler" and the record does not reflect that the juvenile court was aware of its discretion to treat his offenses as misdemeanors.
Initially, the People respond that the minor has forfeited his Manzy W. claim. Assuming the issue is not forfeited, the People claim two of the three offenses are not "wobblers" but are felonies (§§ 25850, 25400) and, even though the third offense is a "wobbler" (§§ 29610, 29700), the statute the minor actually violated if he had been an adult was section 26350, "a felony."
We reject the People's claim that the issue has been forfeited under People v. Scott (1994) 9 Cal.4th 331. Scott considered whether discretionary sentencing choices were subject to forfeiture (waiver). (Id. at pp. 353-354.) A declaration under Welfare and Institutions Code section 702 is mandatory and may be significant to the minor's future. (See In re D.L. (2012) 206 Cal.App.4th 1240, 1244.)
" 'Most important, the finding determines the maximum period of physical confinement. Under [Welfare and Institutions Code] section 726, a minor removed from the custody of a parent or guardian may not be held for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense which brings the minor within the jurisdiction of the juvenile court. [¶] Further, the potential for prejudice from a finding of felony status has been increased by passage of Proposition 8, which provides that any prior felony conviction, whether adult or juvenile, "shall . . . be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding." ' [Citation.] As the People concede, it may also have substantial ramifications in future criminal adjudications of the minor, including under Penal Code section 667, subdivision (d)(3)(A)—the 'Three Strikes' law—which provides that certain prior juvenile adjudications 'shall constitute a prior felony conviction for the purposes of sentence enhancement.' As they assert, 'some of these prior adjudications could include offenses that are "wobblers." ' In addition, of course, ' "[i]t is common knowledge that such an adjudication when based upon a charge of committing an act that amounts to a felony, is a blight upon the character of and is a serious impediment to the future of such minor." ' " (Manzy W., supra, 14 Cal.4th at pp. 1208-1209.)
Here, the juvenile court made no express declaration whether the three counts were felonies or misdemeanors at the jurisdictional or dispositional hearings. This declaration must be made at or before disposition. (Cal. Rules of Court, rule 5.795(a).)
A violation of section 25850 may be a felony, a misdemeanor or a wobbler depending on the circumstances. It provides in relevant part as follows:
"(a) A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory. [¶] . . . [¶]
"(c) Carrying a loaded firearm in violation of this section is punishable, as follows:
"(1) Where the person previously has been convicted of any felony, or of any crime made punishable by a provision listed in Section 16580, as a felony.
"(2) Where the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen, as a felony.
"(3) Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1), as a felony.
"(4) Where the person is not in lawful possession of the firearm, or is within a class of persons prohibited from possessing or acquiring a firearm pursuant to Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and Institutions Code, as a felony.
"(5) Where the person has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.
"(6) Where the person is not listed with the Department of Justice pursuant to Section 11106 as the registered owner of the handgun, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($1,000), or both that fine and imprisonment.
"(7) In all cases other than those specified in paragraphs (1) to (6), inclusive, as a misdemeanor, punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine." (§ 25850.)
The same can be said of a violation of section 25400, which provides in relevant part as follows:
"(a) A person is guilty of carrying a concealed firearm when the person does any of the following: [¶] . . . [¶]
"(2) Carries concealed upon the person any pistol, revolver, or other firearm capable of being concealed upon the person. [¶] . . . [¶]
"(c) Carrying a concealed firearm in violation of this section is punishable as follows:
"(1) If the person previously has been convicted of any felony, or of any crime made punishable by a provision listed in Section 16580, as a felony.
"(2) If the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen, as a felony.
"(3) If the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1), as a felony.
"(4) If the person is not in lawful possession of the firearm or the person is within a class of persons prohibited from possessing or acquiring a firearm pursuant to Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and Institutions Code, as a felony.
"(5) If the person has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.
"(6) If both of the following conditions are met, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment:
"(A) The pistol, revolver, or other firearm capable of being concealed upon the person is loaded, or both it and the unexpended ammunition capable of being discharged from it are in the immediate possession of the person or readily accessible to that person.
"(B) The person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106 as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person.
"(7) In all cases other than those specified in paragraphs (1) to (6), inclusive, by imprisonment in a county jail not to exceed one year, by a fine
not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine." (§ 25400.)
A violation of section 29610 is a wobbler offense, a violation of which is punished under section 29700, which provides as follows:
"Every minor who violates this chapter shall be punished as follows:
"(a) By imprisonment pursuant to subdivision (h) of Section 1170 or in a county jail if one of the following applies:
"(1) The minor has been found guilty previously of violating this chapter.
"(2) The minor has been found guilty previously of an offense specified in Section 29905, 32625, or 33410, or an offense specified in any provision listed in Section 16590.
"(3) The minor has been found guilty of a violation of Section 29610.
"(b) Violations of this chapter other than those violations specified in subdivision (a) shall be punishable as a misdemeanor." (§ 29700.)
Section 26350 (the People's uncharged/unproven alternative to § 29610) is punishable not as a felony as the People claim, but as a misdemeanor for no more than six months in county jail and/or a $1,000 fine (§§ 19, 26350, subd. (b)(1)) or no more than one year in county jail and/or a $1,000 fine if certain conditions are met (§ 26350, subd. (b)(2)(A) & (B)). --------
Citing In re D.D. (2015) 234 Cal.App.4th 824, the People argue the minor's violations of sections 25850 and 25400 were felonies because the minor was on probation with conditions prohibiting his possession/ownership of dangerous weapons and requiring him to obey all laws (§§ 25850, subd. (c)(4), 25400, subd. (c)(4)) and the minor "had previously been convicted of any felony," i.e., his prior adjudication for violating section 33210 (§§ 25850, subd. (c)(1), 25400, subd. (c)(1)). Although all that may be true and might require felony sentencing for sections 25850 and 25400, the prosecution did not present any evidence of the minor's probation conditions or prior adjudications to the juvenile court at the jurisdictional hearing. (See D.D., supra, 234 Cal.App.4th at p. 834.)
Indeed, at the jurisdictional hearing, the judge stated that he "ha[d] not viewed, read or considered in any way any social study, probation report that was prepared before this hearing" and "had not even seen the Court file as of this morning nor as of this moment," having only seen "a copy of the petition." The prosecutor had nothing more to add after those remarks other than his argument that the allegations in the petition had been proven beyond a reasonable doubt. The judge agreed and found each count true. But there is nothing in the record to indicate that the juvenile court considered whether any of the three offenses was a felony or a misdemeanor.
The petition alleging the offenses, the probation officer's reports, and the probation officer's indication of the maximum period of confinement, all label the three offenses as felonies. Such labeling is not a substitute for an explicit declaration by the juvenile court whether the offense was a misdemeanor or a felony, because they do not show the juvenile court knew it had discretion to declare each offense to be a misdemeanor rather than a felony. (Manzy W., supra, 14 Cal.4th at pp. 1208-1209.)
Thus, we will remand to the juvenile court to exercise its discretion and declare whether each of the minor's three offenses is a misdemeanor or a felony.
DISPOSITION
The juvenile court's dispositional order is vacated. The matter is remanded to the juvenile court to exercise its discretion under Welfare and Institutions Code section 702, to expressly declare whether each count (counts one, two, and three) is a felony or misdemeanor, and to issue a new dispositional order accordingly. The juvenile court's jurisdictional findings are otherwise affirmed.
BUTZ, Acting P. J. We concur: MURRAY, J. HOCH, J.