Opinion
F051143
5-2-2007
In re BRANDON R., a Person Coming Under The Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. BRANDON R., Defendant and Appellant.
Robert P. Whitlock, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
Before Harris, Acting P.J., Wiseman, J., and Levy, J.
On June 20, 2006, officers responding to a vehicle burglary in progress found 16-year-old appellant, Brandon R., lying on the front floorboard of a car which had its drivers side window broken.
On June 28, 2006, the district attorney filed petition No. JW097579-08 charging Brandon with vehicle burglary (Pen. Code, § 460, subd. (b)), possession of burglary tools (§ 466), attempted vehicle theft (§ 664/Veh. Code § 10851), and violation of probation (Welf. & Inst. Code, § 777, subd. (a)(2)).
All further statutory references are to the Penal Code unless otherwise indicated.
On July 12, 2006, the court issued a warrant for Brandons arrest after he failed to appear for a detention hearing.
On July 16, 2006, Brandon was arrested.
On August 4, 2006, while in custody in juvenile hall, Brandon punched another ward in the face, inflicting a cut on his lip that required five stitches.
On August 11, 2006, Brandon admitted the second degree burglary and violation of probation counts in petition No. JW097579-08 in exchange for the dismissal of the remaining counts.
On August 24, 2006, an amended petition in case No. JW097579-09 was filed charging Brandon with battery with serious bodily injury (§ 243, subd. (d)) and violation of probation (Welf. & Inst. Code, § 777, subd. (a)(2)).
On August 25, 2006, the court took Brandons admission of the two counts in petition No. JW097579-09, set his maximum term of confinement at seven years six months, and committed him to the Department of Corrections and Rehabilitation, Juvenile Justice Division.
Brandons appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Brandon has not responded to this courts invitation to submit additional briefing. However, our review of the record disclosed that the court erred by its failure to declare the character of Brandons battery and second degree burglary offenses.
Welfare and Institutions Code section 702, requires the juvenile court to make "an explicit declaration" whether a "wobbler" offense is being punished as a felony or a misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) The pivotal inquiry "is whether the record as a whole establishes that the juvenile court was aware of its discretion" to treat a wobbler as a misdemeanor. (Id. at p. 1209.)
Section 702 of the Welfare and Institutions Code provides, 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."
Brandons second degree burglary and battery with serious injury offenses are both wobbler offenses. (Pen. Code, §§ 461/243, subd. (a).) However, it does not appear from the record that the court understood its discretion to treat these offenses as misdemeanors. In view of this, we will remand the matter to the trial court for an express declaration pursuant to section 702 and possible recalculation of Brandons maximum period of physical confinement.
Further, following independent review of the record, we find that with the exception of the issue discussed above, no other reasonably arguable factual or legal issues exist.
DISPOSITION
The matter is remanded to the juvenile court for the limited purpose of allowing the court to comply with Welfare and Institutions Code section 702 by declaring the character of Brandons burglary and battery offenses and, if necessary, for a recalculation of his maximum period of physical confinement. In all other respects, the judgment is affirmed.