Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. 33829-J
Jones, P.J.
Daniel H. appeals from a disposition entered after the juvenile court found true allegations that he had committed forcible rape, (Pen. Code, § 261, subd. (a)(2) ) forcible sexual penetration (§ 289, subd. (a)(1)), and sexual battery (§ 243.4, subd. (a)). He contends the court erred because it failed to exercise its discretion to determine whether the sexual battery count was a felony or a misdemeanor. We agree and remand for further proceedings.
Unless otherwise indicated, all further statutory references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 3, 2006, 17-year-old Olivia S. went to appellant’s home. They watched a movie and consumed a large amount of whiskey. Olivia became intoxicated and decided to lie down on a bed. Appellant took advantage of the situation. He put his hands down Olivia’s pants and digitally penetrated her vagina. Olivia told appellant to stop, but he continued. He twice inserted his penis into Olivia’s vagina against her will. When appellant was finished and rolled off Olivia, she became hysterical. She called a friend and told her she had been raped. The friend told Olivia’s mother who told the police.
Based on these facts, a petition was filed alleging appellant came within the jurisdiction of the juvenile court because he had committed the offenses we have set forth above. After a contested jurisdictional hearing, the court found the allegations to be true. At disposition, the court declared appellant a ward of the court, removed him from the custody of his family, and ordered him placed out of state.
II. DISCUSSION
The court found true the allegation that appellant had committed sexual battery. (§ 243.4, subd. (a).) That offense is a “wobbler.” It can be punished as a felony or a misdemeanor. At disposition, the court declared the sexual battery count to be a felony. However, the court did not indicate on the record that it understood it had the discretion to declare the count to be a felony or misdemeanor. Appellant now contends this was error. The People concede the point and we agree.
Section 243.4, subdivision (a) states in part, “A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year . . . or by imprisonment in the state prison for two, three, or four years . . . .”
As is relevant, Welfare and Institutions Code section 702 states, “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.”
In 2006, when these proceedings were held, California Rules of Court, rule 1493(1), stated, “If the offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and must expressly declare on the record that it has made such consideration and must state its finding as to whether the offense is a misdemeanor or a felony.”
Here, as the People concede, the court declared appellant’s sexual battery to be a felony, however, it did not state on the record that it had considered whether the offense should be characterized as a felony or misdemeanor. Under the former rule of court that we have cited, this was error. We will remand so the court can make the appropriate determination.
III. DISPOSITION
The case is remanded so the juvenile court can state, on the record, whether appellant’s sexual battery offense is a felony or a misdemeanor, and explain why the court is making that determination. In all other respects, the disposition is affirmed.
We concur: Simons, J., Needham, J.