Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWJ005936 Mark Ashton Cope, Judge.
Scott Pactor, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, and Gary W. Schons and Jeffrey J. Koch, Assistant Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
The juvenile court found true that minor had committed a burglary (Pen. Code, § 459) when he illegally entered a truck with an intent to commit a theft as alleged in a subsequent Welfare and Institutions Code section 602 petition. Following a dispositional hearing, minor was continued a ward of the court and placed on probation on various terms and conditions. Minor’s sole contention on appeal is that the juvenile court failed to comply with the mandates of Welfare and Institutions Code section 702 when it failed to declare his offense a felony or misdemeanor at the time of sentencing. We agree with the parties and will remand the matter.
I
The details of minor’s criminal conduct are not relevant to the limited issues raised in this appeal. Those details are set out in the parties’ briefs, and we will not recount them here. Instead, we will recount only those facts that are pertinent to the issues we must resolve in this appeal.
Following a contested jurisdictional hearing, the allegations in the subsequent petition were found to be true. The court, however, reserved the issue of whether the burglary offense was a felony or misdemeanor until disposition. At the dispositional hearing, however, the court failed to indicate whether the offense was a felony or a misdemeanor. Minor argues, and the People agree, that his case must be remanded to the juvenile court for it to explicitly exercise its discretion to designate his offense as either a felony or a misdemeanor. We also agree.
Welfare and Institutions Code section 702 provides that when a minor is declared a ward under Welfare and Institutions Code section 602, “[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 parties agree that the charge of burglary can be treated either as a felony or a misdemeanor because it is punishable “by imprisonment in the county jail not exceeding one year or in the state prison.” (Pen. Code, § 461.) As a result, the juvenile court was required to make a declaration pursuant to Welfare and Institutions Code section 702.
Welfare and Institutions Code 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. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) In Manzy W., the California Supreme Court determined that the juvenile court’s duty to designate a “wobbler” offense as either a misdemeanor or felony is mandatory. (Id. at p. 1204.) Citing its own earlier decisions, the Supreme Court rejected arguments that the determination may be implied from the length of the sentence or that a trial court may simply be presumed to have fulfilled its official duty. (Id. at pp. 1207, 1209.) The requirement for an explicit determination, said the court, “serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion . . . .” (Id. at p. 1207, citing People v. McGee (1977) 19 Cal.3d 948, 963.) The designation is important because of its effect on a minor’s future, and not just for determining sentencing options for a present offense. (Manzy W., at pp. 1208-1209, citing and explaining In re Kenneth H. (1983) 33 Cal.3d 616, 619.) In particular, the designation may determine whether the current offense may be used for impeachment or for enhancement of a sentence for a later offense, for determination of whether a future offense constitutes a strike, and whether the offender’s character is blighted by the record. (Manzy W., at p. 1209.)
Hence, although not “automatic,” remand is required for “strict compliance” with this section if the juvenile court fails to expressly make a formal declaration. (Manzy W., supra, 14 Cal.4th at pp. 1204, 1209.) Remand is unnecessary if the record shows “that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion . . . .” (Id. at p. 1209.) “The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion . . . .” (Ibid.) We cannot substitute pleadings, minute orders, or even the imposition of a felony term of confinement for an express declaration by the juvenile court. (Id. at p. 1208.)
Viewing the record as a whole, the record here clearly shows that the juvenile court failed to designate the offense or exercise its discretion under Welfare and Institutions Code section 702. Though the court recognized its discretion under that statute, it reserved that discretion at the time of disposition. Nonetheless, at the time of the dispositional hearing, the court failed to exercise that discretion. A remand is therefore necessary.
II
DISPOSITION
The matter is remanded to the Superior Court of Riverside County for it to exercise its discretion to declare minor’s Penal Code section 459 offense a felony or a misdemeanor pursuant to the requirements of Welfare and Institutions Code section 702. In all other respects, the judgment is affirmed.
We concur: GAUT J., KING J.