Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court for the County of Los Angeles. Ct. No. JJ15484, Robert S. Ambrose, Juvenile Court Referee.
Leslie G. McMurray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Sarah J. Farhat, Deputy Attorneys General for Plaintiff and Respondent.
COOPER, P. J.
SUMMARY
The juvenile court erred in failing to declare a minor’s “wobbler” offense to be a misdemeanor or felony, as mandated by Welfare and Institutions Code section 702, and remand to the juvenile court is required. The minor’s claim that this court should review the personnel records of the arresting officer, to make sure that all pertinent records were turned over to the defense when the trial court granted the minor’s Pitchess motion, is without merit.
STATEMENT OF PROCEDURAL AND FACTUAL HISTORY
On August 30, 2007, the Los Angeles County District Attorney filed a petition alleging that appellant came within the provisions of Welfare and Institutions Code section 602, in that he unlawfully drove or took a vehicle in violation of Vehicle Code section 10851, subdivision (a) (Count 1), and resisted, delayed or obstructed a peace officer in violation of Penal Code section 148, subdivision (a)(1) (Count 2). Appellant denied the allegations contained in the petition.
Appellant filed a Pitchess motion seeking records of complaints or incidents involving excessive force by the arresting officer. A hearing was held in camera on October 10, 2007, and the court ordered the City of South Gate to “provide the minor’s counsel with the indicated records via fax by 10/16/07.”
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
An adjudication hearing was held on December 13, 2007, and the following evidence was adduced.
At some time prior to August 17, 2007, Veronica Parra parked and locked her white 1995 Nissan Sentra without giving anyone permission to drive or take it; the car keys remained in her possession; and when she returned to her parking spot, the vehicle was gone. South Gate Police Officer Adam Cook was on patrol on August 17, 2007, when he observed a white Nissan Sentra traveling southbound on Long Beach Boulevard. The car was occupied by two males, and the driver failed to signal before making a right turn. Officer Cook signaled for the vehicle to stop. When the vehicle came to a stop, the passenger exited the vehicle, began running and eventually left the officer’s sight. The driver, appellant, exited the vehicle, stopped and looked at Officer Cook for a few seconds and then began to run. Cook recognized appellant, as he and appellant had had numerous prior contacts. Cook pursued appellant for about two hundred yards until appellant ran out of sight. Cook ran the vehicle’s plate and discovered it was stolen.
There were no witnesses to the foot pursuit and the vehicle was not fingerprinted. Officer Cook observed that no keys were in the vehicle and the ignition was visibly damaged. Appellant was arrested about two weeks later after Officer Cook obtained a warrant.
The defense presented testimony from two witnesses, appellant and Stephen Knight. Appellant denied he had taken the Sentra; said he had been with friends at the time of the incident; and testified that South Gate police had been harassing him for several years and he had previously been assaulted by Officer Cook. Knight, a Pitchess witness, testified that Cook arrested Knight in June 2005, at a house party when Knight did not follow Cook’s order to put down his drink. Cook grabbed his arm and Knight jerked it away; Knight thought Cook was acting beyond his authority and had singled out Knight when others were drinking as well. Knight filed a complaint with the South Gate Police Department.
The juvenile court found the allegations true as to Count 1, and not true as to Count 2. The court ordered that appellant be placed home on probation with various conditions, with a maximum period of physical confinement of three years.
Appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends (1) the juvenile court erred by failing to declare his offense to be a misdemeanor or a felony, as required by Welfare and Institutions Code section 702, and (2) this court should review the personnel records relating to Officer Cook to determine whether there were any additional materials that should have been turned over to the defense. We agree with the first point, but not with the second.
I.
Welfare and Institutions Code section 702 provides that, in a juvenile proceeding, "[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 unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) is such an offense, known as a “wobbler.” Consequently, the court is required to make “an explicit declaration . . . whether [the] offense would be a felony or a misdemeanor in the case of an adult.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204; see also Cal. Rules of Court, rule 5.780e(5) [in a section 602 matter, “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”].)
All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.
In this case, the People’s petition charged the minor with a felony, and the juvenile court, while ordering the appellant home on probation, found the maximum term of confinement to be three years, effectively treating the offense as a felony. However, the record does not show that the court actually considered whether appellant’s offense should be treated as a misdemeanor or a felony. The court did state, when it described the conditions of probation that would be imposed, and in response to an objection from appellant’s counsel, that “it is a felony.” This exchange occurred, at the end of the court’s statement of the conditions of probation:
“The Court: … You are to submit yourself to testing as directed by Probation to detect narcotics and controlled substances; [¶] and submit your person and/or property to search and seizure at any time of the day or night by any law enforcement officer with or without a warrant.
“[Defense counsel]: Your Honor, the defense objects to that.
“The Court: I know. This is a felony. That is why I’m giving it, but over your objection.”
Appellant contends the court’s statement was not enough to comply with section 702. Appellant is correct.
In In re Manzy W., the California Supreme Court held that the requirement that a juvenile court declare a wobbler offense to be either a misdemeanor or felony is mandatory, and not merely directory. “[Section 702] 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., supra, 14 Cal.4th at p. 1204.) Further, the Manzy court pointed out that its own prior decision in In re Kenneth H. (1983) 33 Cal.3d 616, 619-620 “reiterated that 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.” (In re Manzy W., supra, 14 Cal.4th at p. 1208.) However, a juvenile court’s failure to make the required declaration under section 702 does not automatically require a remand of the matter to the juvenile court. In re Manzy W. explained that the record in a given case “may show 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.) If so, the failure to make an explicit declaration would be harmless error. So, “[t]he 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.” (Ibid.) The point is not an academic one, as prior felony convictions may have substantial ramifications in future criminal adjudications of the minor. (Ibid.))
“‘[T]he 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.] . . . [I]t 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.’” (In re Manzy W., supra, 14 Cal.4th at p. 1209.)
Applying the principles announced in In re Manzy W. to the case at hand, it is clear that the trial court failed to make a formal declaration under section 702. Accordingly, we must assess whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor. As in Manzy W., “[n]othing in the record establishes that the juvenile court was aware of its discretion to sentence the offense as a misdemeanor rather than a felony.” (In re Manzy W., supra, 14 Cal.4th at p. 1210.) Here, the only written references to the character of appellant’s offense were the People’s section 602 petition and the juvenile court’s December 13, 2007 minute order (in which the box is checked stating that the offense is declared to be a felony, and in which the court sets the maximum confinement as three years). But, as we have seen, none of these may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. (In re Manzy W., supra, 14 Cal.4th at p. 1208.) And nothing else in the record shows the juvenile court was aware of its discretion to sentence the offense as a misdemeanor. The court’s statement, in response to an objection from defense counsel, that “it is a felony” does not show the court was aware of its discretion to impose a misdemeanor sentence. The court might well have said “it is a felony” merely because the offense was charged as a felony. As in Manzy W., the juvenile court at no time referred to its discretion to declare the offense a misdemeanor, and neither the prosecution nor defense counsel pointed out to the court that it had such discretion. (In re Manzy W., supra, 14 Cal.4th at p. 1210.) In short, under these circumstances, “it would be mere speculation to conclude that the juvenile court was actually aware of its discretion in sentencing” the appellant. (Ibid.) Accordingly, the matter must be remanded to the juvenile court for an express declaration under section 702.
II.
The second issue presented in this appeal is whether, when the trial court grants a Pitchess motion and orders disclosure of a police officer’s personnel records, the defendant is entitled to the appellate court’s independent review of the documents reviewed by the trial court, to see if the trial court should have determined that additional documents were discoverable. The answer is no.
In this case, the juvenile court ordered disclosure of “indicated records” (and a Pitchess witness who filed a complaint against the South Gate police appeared and testified at the minor’s adjudicatory hearing). We are aware of no authority requiring an appellate court to review, at the request of the defendant, a trial court’s order granting disclosure to the defense of an officer’s personnel records. Nor would an appellate court’s independent review of the records under such circumstances comport with sound policy or common sense.
The record in this case does not contain a transcript of the in camera hearing held by the juvenile court.
Pitchess and the statutes codifying Pitchess principles balance the conflicting interests of a peace officer’s claims to confidentiality and a criminal defendant’s compelling interest in all information pertinent to his defense. (People v. Jackson (1996) 13 Cal.4th 1164, 1220.) This balance is achieved by “requir[ing] the intervention of a neutral trial judge,” who examines the officer’s records in camera to determine whether they contain material relevant to the defense. (People v. Mooc (2001) 26 Cal.4th 1216, 1227.) Independent appellate review of the records when the trial court concludes they contain no relevant material is, of course, appropriate. But appellate review of those records when the trial court has ruled in the defendant’s favor, and affirmatively ordered disclosure of some of the officer’s records, is both duplicative and unnecessary. There is simply no reason to suppose that a trial judge who has examined personnel records and ordered disclosure of some of them would, at the same time, erroneously refuse to order disclosure of others. Moreover, a contrary conclusion would mean that all trial court decisions on Pitchess motions, positive or negative, would end up in the court of appeal. We see no reason to countenance such a burden on the appellate courts.
In short, under these circumstances, absent an evidentiary showing of some basis to believe the trial court may have erred in its documentary review, we will not independently review personnel records to make sure the trial court’s disclosure order included all the discoverable records. Instead, we will presume that a trial court, which has demonstrated its neutrality by ordering the disclosure of relevant records, has properly performed its obligation to order the disclosure of all, not merely some, of the relevant records. (Cf. Evid. Code, § 664 [“[i]t is presumed that official duty has been regularly performed”].)
DISPOSITION
The case is remanded to the juvenile court for an express declaration pursuant to Welfare and Institutions Code section 702 as to whether the minor’s offense is a misdemeanor or a felony, and for possible recalculation of the maximum period of physical confinement. In all other respects the judgment is affirmed.
I concur: RUBIN, J.
BIGELOW, J., Concurring and Dissenting.
I respectfully dissent in so far as the majority concludes this case must be remanded to the trial court for a further formal declaration as to whether the offense was a felony or misdemeanor under Welfare and Institutions Code section 702. The trial court has already stated that “[t]his is a felony. . . .” That declaration satisfies section 702, as our colleagues in Division Five recently held under nearly identical circumstances in In re David V. (2008) 166 Cal.App.4th 801. As properly stated in In David V., “where a juvenile court makes an express declaration, the declaration itself is evidence that the court was aware of and exercised its discretion.” (Id. at p. 813.) “[N]either Manzy W. nor any other case has held that a formal declaration alone cannot demonstrate the exercise of discretion. As the Supreme Court noted in Manzy W. [(1997) 14 Cal.4th 1199], the 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.’ [Citation.]” (In re David V., supra, 166 Cal.App.4th at p. 813.)
There is nothing on the record in this case to support a finding that the trial court was unaware of its discretion under section 702. The juvenile court in this case has already stated that the minor committed a felony. I see no reason to remand the case to require the juvenile court to repeat what it has already expressly stated.