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In re G.A.

California Court of Appeals, Fifth District
Feb 2, 2011
No. F060181 (Cal. Ct. App. Feb. 2, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County No. JJD064514. Hugo J. Loza, Commissioner.

Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Levy, Acting P.J., Cornell, J., and Gomes, J.

The court readjudged appellant, G.A., a ward of the court after appellant admitted allegations charging him with possession of a deadly weapon (count 1/Pen. Code, § 12020, subd. (a)(1)), possession of a firearm by a minor (count 2/§ 12101, subd. (a)(1)), and possession of live ammunition by a minor (count 3/§ 12101, subd. (b)(1)). On April 8, 2010, the court placed appellant on probation.

On appeal, appellant contends the court erred by its failure to declare the character of two of his offenses. We find merit to this contention and remand the matter to the juvenile court. In all other respects, we affirm.

FACTS

On February 2, 2010, at approximately 5:56 p.m. two officers went to appellant’s house in Tulare to conduct a probation search of the room belonging to appellant’s brother. After appellant’s stepfather led the officers to the brother’s room, the officers searched the room and found a glass pipe, a plastic bag containing shotgun shells, and a sawed-off shotgun. Appellant admitted the pipe and sawed-off shotgun belonged to him.

On February 10, 2010, the Tulare County District Attorney filed an amended petition charging appellant with the three counts he eventually admitted.

On March 25, 2010, appellant admitted the three charged offenses contingent on his acceptance into the deferred entry of judgment program. However, on April 8, 2010, after the probation report concluded that appellant was not a suitable candidate for deferred entry of judgment, appellant reaffirmed his admission. The court then adjudged appellant a ward of the court and placed him on probation in the custody of his mother.

DISCUSSION

Appellant contends the court erred by its failure to declare the character of his offenses to be misdemeanors or felonies. Respondent concedes and we agree.

“Welfare and Institutions Code section 702, in relevant part, 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.’” (In re Manzy W. (1997) 14 Cal.4th 1199, 1203-1204. (Manzy W.).)

“The requirement is obligatory: ‘[Welfare and Institutions Code] section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor.’ (In re Kenneth H.[] [1983] 33 Cal.3d [616, ] 619, …; In re Ricky H.[] [1981] 30 Cal.3d [176, ] 191, …; Welf. & Inst. Code, § 15 [“‘Shall’ is mandatory and ‘may’ is permissive.”]; Cal. Rules of Court, rule 1401(b)(1) [“‘Shall’ is mandatory and ‘may’ is permissive.”].)” (Manzy W., supra, 14 Cal.4th at p. 1204.)

Although the failure to make the mandatory express declaration requires remand for strict compliance with Welfare and Institutions Code section 702, remand is not automatic. (Manzy W., supra, 14 Cal.4th at p. 1204.) “[S]peaking generally, the record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error.” (Id. at p. 1209.)

Possession of a deadly weapon and possession of a firearm by a minor are each offenses that in the case of an adult would be punishable as felonies or misdemeanors. (Pen. Code, §§ 12020, subd. (a) & 12101, subds. (a)(1) & (c)(1)(C).) The record reflects that the court did not declare the character of these offenses at either the March 25, 2010 hearing or the April 8, 2010 hearing. Nor does the record indicate that the court was aware of its discretion to treat these offenses as misdemeanors. Thus, in accord with Manzy W., we will remand the matter to the juvenile court so that it may make the requisite declaration.

DISPOSITION

The matter is remanded to the trial court for an express declaration pursuant to Welfare and Institutions Code section 702. In all other respects, the judgment is affirmed.


Summaries of

In re G.A.

California Court of Appeals, Fifth District
Feb 2, 2011
No. F060181 (Cal. Ct. App. Feb. 2, 2011)
Case details for

In re G.A.

Case Details

Full title:In re G.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, Fifth District

Date published: Feb 2, 2011

Citations

No. F060181 (Cal. Ct. App. Feb. 2, 2011)