Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TJ17508. Catherine J. Pratt, Commissioner.
Gerald Peters, 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, Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Appellant D.C., a minor, appeals from an order of the juvenile court declaring him to be a ward of the court under Welfare and Institutions Code section 602 and placing him home on probation. Appellant contends that the court erred in imposing a maximum term of confinement of three years because he was not removed from his home. (See Welf. & Inst. Code, § 726, subd. (c).) Respondent agrees with this contention. Appellant also contends that the court failed to exercise its discretion to determine whether Appellant’s offense was a felony or a misdemeanor. We agree with Appellant. We therefore affirm the judgment, but we remand for the juvenile court to strike the specification of a maximum term of imprisonment and to consider whether the offense is a felony or misdemeanor.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
BACKGROUND
In June 2008, 10-year-old T.M. was at the library with her 13-year-old friend, K.R. T.M. let K.R. borrow her cell phone, a blue Sidekick Slide, so that K.R. could call her mother. Appellant took the phone from K.R. without T.M.’s permission; R.M. took it from Appellant, and then R.M. ran away with the phone. K.R. told T.M. to go inside the library and tell the librarian what happened. The librarian called the police, and the police came about 45 minutes later and spoke with T.M. and K.R. Appellant was there when the police arrived, so K.R. pointed him out to the police.
Appellant testified that K.R. let him use T.M.’s cell phone and that R.M. snatched the phone out of his hand while he was using it. R.M. ran away after taking the phone from Appellant, but Appellant stayed at the library.
Officer John Wynott testified that after he arrested Appellant, he asked Appellant if he understood what was happening. Appellant responded, “‘Yeah. Because we took the phone.’” Appellant testified that he tried to tell the officers that he did not take the phone, but that they ignored him.
A petition under section 602 was filed, alleging that Appellant committed the crime of grand theft by taking property from the person of another, in violation of Penal Code section 487, subdivision (c). The petition described the offense as a felony. A hearing was held, at which T.M., K.R., Appellant, and Officer Wynott testified.
After hearing the testimony, the court found that the evidence was sufficient to find that “a theft occurred” and that Appellant “was involved in it.” The court thus found the allegation in the petition to be true and noted the recommendation that Appellant be placed home on probation. The court later stated that “[t]he charge is a felony. The maximum confinement time is three years.” The court declared Appellant a ward of the court under section 602, but allowed Appellant to remain home on probation, commending Appellant for his polite behavior throughout the proceedings. Appellant filed a notice of appeal.
DISCUSSION
Appellant raises two issues. First, he contends that the court erred in imposing a maximum term of confinement of three years because he was not removed from his home. Second, he contends that the court failed to exercise its discretion to determine whether the offense was a felony or misdemeanor.
I. Maximum Term of Confinement
Section 726, subdivision (c) provides that “[i]f the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.” As Appellant argues, section 726 requires the court to order a maximum term of imprisonment only if the minor is removed from his home. Respondent agrees with Appellant.
The provision of the juvenile court order determining a maximum term of imprisonment accordingly is ordered stricken. (See In re Matthew A. (2008) 165 Cal.App.4th 537, 541 [where the minor was not removed from his mother’s physical custody, holding that the court had no authority under section 726 to specify a term of imprisonment and therefore striking the specification of a maximum term of imprisonment].)
II. Determination that Offense is a Felony or Misdemeanor
Section 702 provides, in relevant part, that “[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 rule implementing section 702 states that, “[i]f 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.” (Cal. Rules of Court, rule 5.790(a)(1); see also Cal. Rules of Court, rule 5.780(e)(5).)
In In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy), the California Supreme Court held that this requirement is mandatory and that the juvenile court’s failure to make an express declaration that an offense is a felony or a misdemeanor required remand for compliance with section 702. (Id. at p. 1204.) The court discussed the potential future harm to a juvenile from a felony determination, particularly in light of the Three Strikes law, and stressed that the requirement of an express determination “serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702.” (Id. at p. 1207; see id. at p. 1209 [discussing the “‘blight upon the character’” and “‘serious impediment to the future’” of a felony adjudication for a minor.)
Grand theft is a so-called “wobbler” offense, punishable as either a felony or misdemeanor. (Pen. Code, §§ 487, subd. (c), 489, subd. (b).) The section 602 petition alleged that Appellant committed the crime of grand theft and described it as a felony. However, the court in Manzy specifically emphasized that “‘[t]he mere specification in the petition of an alternative felony/misdemeanor offense as a felony has been held insufficient to show that the court made the decision and finding required by [Welfare and Institutions Code] section 702. [Citation.]’” (Manzy, supra, 14 Cal.4th at p. 1207.) This is because “the preparation of a petition is in the hands of the prosecutor, not the court.” (In re Ricky H. (1981) 30 Cal.3d 176, 191, superseded by statute on other grounds as noted in In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.) Moreover, “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.” (Manzy, supra, 14 Cal.4th at p. 1208.)
The court here stated, “The charge is a felony. The maximum confinement time is three years.” It is true that the court expressly stated that the “charge” is a felony. However, the court stated that the “charge” is a felony, not that the offense committed by Appellant was a felony. As discussed above, the allegation in the petition that the offense is a felony is not sufficient to show that the court “consider[ed] which description applies.” (Cal. Rules of Court, rule 5.790(a)(1).)
In addition, the court’s statement came in the context of its erroneous imposition of a maximum term of imprisonment. In this context, it is not clear “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.” (Manzy, supra, 14 Cal.4th at p. 1209.)
“Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that ‘informed discretion’ than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. [Citation.]” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) Although the court did state that the charge was a felony, the context of its statement does not indicate that the court complied with the rule that it “must consider which description applies and must expressly declare on the record that it has made such consideration” in stating that the charge was a felony. (Cal. Rules of Court, rule 5.790(a)(1).)
“Since we are remanding in any event for the court to [strike the maximum term of imprisonment], we will also order the court to make the finding required by Welfare and Institutions Code section [702].” (In re Robert H. (2002) 96 Cal.App.4th 1317, 1331.)
DISPOSITION
The case is remanded for the juvenile court to make a finding concerning whether Appellant’s offense is a misdemeanor or a felony and for the court to strike the maximum confinement term it set. The judgment is affirmed in all other respects.
We concur: MALLANO, P. J., ROTHSCHILD, J.