Opinion
F041736.
7-15-2003
In re CRYSTAL G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CRYSTAL G., Defendant and Appellant.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Section 702 of the Welfare and Institutions Code requires that when a minor is adjudicated a ward of the court as a result of a guilty finding on a petition alleging a "wobbler," the court must declare whether the criminal act charged by the petition would be considered a misdemeanor or felony if the defendant were an adult. Appellant Crystal G. was adjudicated a ward of the court after she admitted the truth of a petition alleging she had committed assault by means likely to produce great bodily injury, a "wobbler." On appeal, she claims the juvenile court failed to make the required declaration. We agree and will remand the case to allow the juvenile court to make the required declaration.
STATEMENT OF THE CASE AND FACTUAL BACKGROUND
On June 28, 2002, Crystal was sentenced to a long-term program following adjudications on two petitions, one alleging she was under the influence of methamphetamine and the other alleging disturbing the peace. While under detention, Crystal and another detainee assaulted a girl in a classroom. As a result of the assault, a petition was filed on August 27, 2002, pursuant to section 602 alleging: Count 1, assault by means likely to produce great bodily, in felony violation of Penal Code section 245, subdivision (a)(1) and, count 2, misdemeanor battery, in violation of Penal Code section 242.
On September 17, 2002, Crystal entered a plea of guilty to the charge of aggravated assault. The misdemeanor battery charge was dismissed. During the plea hearing, the court stated, "So on the petition dated August 27th, [Crystal], youre charged with committing a 245 assault, felony, and so that would have an impact on the maximum period of confinement you could receive, ..." The court determined the maximum period of confinement would be four years. The court later asked Crystal if it was true she "violated Penal Code Section 245, [subdivision (a)(1)], a felony, in that [she] did willfully, unlawfully commit an assault by means of force likely to produce great bodily injury on the person of C.R.?" Crystal answered in the affirmative.
At the dispositional hearing on October 9, 2002, Crystal was committed to the California Youth Authority (CYA); the court calculated the maximum term of confinement as four years seven months.
DISCUSSION
On appeal, Crystal raises the single issue of whether the trial court complied with the provisions of section 702 at the time the court made its true finding on the petition dated August 27, 2002. In pertinent part, section 702 provides:
"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."
Penal Code section 245, subdivision (a)(1) provides that the crime of aggravated assault may, in the case of an adult, be punished either as a felony or misdemeanor. Crystal contends the court made no declaration as to whether the aggravated assault to which she entered the guilty plea was a misdemeanor or a felony. We agree.
The Supreme Court case of In re Manzy W. (1997) 14 Cal.4th 1199, 930 P.2d 1255 (Manzy) directly addresses the issue presented here. The Manzy court held the duty of the juvenile court to declare whether the offense would be a felony or misdemeanor if committed by an adult is obligatory. (Id. at pp. 1203-1204.) The purpose is twofold. First, the determination serves to fix the maximum length of physical confinement that may be imposed since the juvenile may not be confined for a longer period than an adult could be confined for the same offense. (Id. at p. 1205.)
Second, the requirement of an explicit declaration serves to protect the minors right to the exercise of judicial discretion in making the determination the offense is to be treated as a felony. In this regard, the Supreme Court held that the trial courts declaration may not be implied from the imposition of a felony-length sentence or from the use of the word "felony" in accusatory pleadings or minute orders. (Id. at pp. 1207-1208.) The length of the sentence imposed, or the designation of the offense as a felony in the accusatory pleading or entries on minute orders, does not evince the conscious exercise of the courts discretion.
The Manzy court also noted that under the provisions of Proposition 8, the determination whether the conduct alleged would constitute a felony in an adult prosecution has "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." (Manzy, supra, 14 Cal.4th at p. 1209.)
From the above, it is clear that section 702 demands some indication in the record that the court exercised informed discretion in determining whether the offense is to be considered a misdemeanor or a felony. When we examine the record in this case, we find abundant consideration of Crystals lengthy criminal record in making the determination that the CYA commitment is warranted. What is lacking is any evidence the court gave consideration to the facts underlying the current petition that would have informed the courts exercise of discretion to declare the offense a felony. The recitation of the word "felony" during the reading of the charge or at the time the maximum period of confinement was set fails to adequately reflect the exercise of the courts discretion. We conclude the juvenile court failed to declare whether the offense would have constituted a felony in an adult prosecution as required by section 702.
Manzy holds that remand is not necessary where it is apparent from the record the juvenile court "was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler." (Manzy, supra, 14 Cal.4th at p. 1209.) "The 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.) When we examine the record as a whole, we do not see evidence of awareness of the juvenile courts discretion. Remand is therefore necessary.
DISPOSITION
The judgment is vacated and the case is remanded. The juvenile court shall make an express declaration pursuant to section 702 and shall, if necessary, recalculate the maximum period of physical confinement. --------------- Notes: All further statutory references are to the Welfare and Institutions Code unless otherwise specified.