Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C188165
Richman, J.
Appellant Janay A. had been a dependent of the court. An original delinquency petition (Welf. & Inst. Code, § 602, subd. (a)) filed on August 12, 2008 alleged that appellant committed two felonies: assault by means of force likely to produce great bodily injury (count one; Penal Code, § 245, subd. (a)(1)) and grand theft from the person (count two; Pen. Code, § 487, subd. (c)). The parties stipulated to the commissioner serving as a temporary judge, and on September 19, 2008, a contested jurisdictional hearing was held, following which the juvenile court sustained the petition and ultimately set the maximum time of confinement at four years, eight months.
The facts underlying the juvenile court’s sustaining of the petition need not be set forth, as they are not germane to the sole issue before us, which arises in connection with the jurisdictional order. All we need say about the facts is that both offenses allow for imprisonment either in a county jail or a state prison, and are thus punishable against an adult as either a misdemeanor or a felony. They are, therefore, “wobbler offenses.” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 902-903, fn. 9.)
At the October 3, 2008 dispositional hearing, the juvenile court declared wardship, placed appellant in the custody of the probation officer for placement and referral to the family preservation unit, but returned actual custody to the mother. The juvenile court also imposed several probation conditions including electronic monitoring.
Appellant filed a timely notice of appeal, and in a well-written brief makes a sole contention: that the matter must be remanded because the juvenile court failed to expressly indicate that it had exercised its discretion to declare whether the two offenses were felonies or misdemeanors. (See Welf. & Inst. Code, § 702 [“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.)
In an equally well-written brief, and with appropriate—and appreciated—candor, the People “agree.” We see no reason not to accept the People’s candid concession, and thus remand.
Here, in sustaining the petition, the court found appellant was “described by 602, in that she committed a felony 245(a)(1) and the felony 487(c).” As the People put it, “Arguably, in sustaining the offenses as felonies, the court complied with section 702. However, appellant was charged with felony violations [citation], and the court’s quoted statement could be viewed as a finding that she committed the offenses as alleged in the petition. Nothing in the statement expressly reflects the court’s awareness of its discretion to treat the offenses as misdemeanors. (See In re Manzy W., 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 commitment’]; cf. In re Kenneth C.[(1983)33 Cal.3d 616,] 618, fn. 2; [citation].)” In light of this, the People “agree” with appellant.
We also note that the court’s statement does not measure up to California Rules of Court, rule 5.780(e)(5), which implements Welfare and Institutions Code section 702. Under the rule, the juvenile court must state, or the record must clearly reflect, that the court considered whether the offenses should be declared felonies or misdemeanors. (See In re Jorge Q. (1997) 54 Cal.App.4th 223, 238; In re Jeffery M. (1980) 110 Cal.App.3d 983, 985.) Here, the record fails to affirmatively indicate that the juvenile court exercised its discretion and did not simply reaffirm the allegations of the petition at the conclusion of the jurisdictional hearing.
The matter is remanded to the juvenile court to exercise its discretion and expressly declare whether the violations should be treated as felony or misdemeanor offenses, and to calculate the maximum period of confinement accordingly.
We concur: Kline, P.J., Haerle, J.