Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV121529
HULL, J.In this juvenile delinquency case, minor Deonte F. (hereafter appellant) argues, and the Attorney General concedes, that the juvenile court failed to comply with its statutory duty under Welfare and Institutions Code section 702 to declare his offense a felony or a misdemeanor and that the matter must be remanded to the juvenile court to permit it to comply with that section. (See In re Manzy W. (1997) 14 Cal.4th 1199, 1213.) We agree.
Facts and Proceedings
On October 3, 2008, the district attorney filed an amended petition to declare appellant a ward of the juvenile court. (Welf. & Inst. Code, § 602.) Count one alleged assault with intent to commit rape in concert, a felony (Pen. Code, § 220); count two alleged false imprisonment, a felony (Pen. Code, § 236); and count three alleged sexual battery by restraint, a felony (Pen. Code, § 243.4, subd. (a)).
The juvenile court dismissed counts one and two after the presentation of evidence, but sustained the allegations set forth in count three.
The evidence established that 15-year-old appellant invited some friends, including the victim, a 15-year-old classmate, to his house one day after school. There, he and another boy invited the victim into an upstairs guest bedroom, where they asked her for oral sex and to see her chest. She said no, and asked to leave the room. Appellant--who was standing by the door--said “not until you do something with us,” and both boys started touching her through her clothes on her chest and between her legs, even though she told them “no.” Later, they took off her shirt and the other boy (but not appellant) touched the skin of her breast.
It previously had been alleged that, in committing the sustained offense, appellant violated his probation which had been ordered by the court in 2006. The court also found true that the offense violated appellant’s probation.
The court continued appellant as a ward of the juvenile court and placed him on probation. As a condition of probation, he was ordered to serve 186 days in a juvenile custodial facility and participate in a sex offender rehabilitation program.
Appellant does not challenge the true findings. Rather, he argues that the matter must be remanded because the juvenile court did not declare whether the sexual battery by restraint offense was a felony or a misdemeanor.
Discussion
Appellant was charged in count three with the felony of sexual battery by restraint, in violation of Penal Code section 243.4, subdivision (a). Sexual battery by restraint is a “wobbler,” since it is punishable as either a felony or a misdemeanor. (Pen. Code, § 243.4, subd. (a).) The minute order in this case indicates that count three, sexual battery by restraint, was found to be a felony. However, the juvenile court failed to state on the record orally whether count three was a felony or a misdemeanor.
Welfare and Institutions Code section 702 provides that in a juvenile proceeding, if a 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 a felony. (In re Manzy W. (1997)14 Cal.4th 1199, 1203-1204.) “The language of the provision is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult.” (Id. at p. 1204.) 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.” (Id. at p. 1208.) A juvenile court’s failure to declare a “wobbler” offense to be a misdemeanor or a felony requires remand for a declaration that the offense was either a misdemeanor or a felony when the record fails to indicate the juvenile court considered the possibility of sentencing the minor as a misdemeanant. (Id. at pp. 1203-1204.)
We note the California Supreme Court has granted review in a case where the Court of Appeal held that “where a juvenile court expressly declares an offense to be a felony or misdemeanor, it is not inappropriate to presume that the declaration itself demonstrates an awareness and exercise of discretion.” (In re David V. (2008) 166 Cal.App.4th 801, 813, review granted Dec. 17, 2008, S167716.)
In this case, we cannot tell from the record whether the juvenile court was aware of or exercised its discretion to determine the felony or misdemeanor nature of the sexual battery by restraint offense. We thus cannot say that the court’s failure to comply with the statute amounts to harmless error. (In re Manzy W., supra, 14 Cal.4th at pp. 1209-1210.)
Disposition
The case is remanded to the juvenile court for a declaration whether the sexual battery by restraint it found was committed by appellant is a misdemeanor or a felony. The judgment is otherwise affirmed.
We concur: SCOTLAND, P. J., ROBIE, J.