Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. KJ29070
Phyllis Shibata, Judge. Remanded with directions; in all other respects affirmed.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
ALDRICH, J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
Jose V. (hereinafter “Jose”) appeals from the order of wardship (Welf. & Inst. Code, § 602) entered following his admission that on October 15, 2006, he committed vandalism causing over $400 in damage. (Pen. Code, § 594, subd. (a).) Jose was placed home on probation, with a maximum term of confinement of three years.
The petition alleged that Jose maliciously defaced property with graffiti.
All further undesignated statutory references are to the Penal Code.
Jose contends that the juvenile court erred by failing to expressly find whether the offense was a felony or misdemeanor, and by fixing a maximum term of confinement. We agree. We therefore remand the matter so the juvenile court can make an express finding regarding whether the offense was a felony or a misdemeanor, and direct it to delete the maximum confinement term from its minute order. In all other respects, we affirm.
DISCUSSION
1. The juvenile court erred by failing to expressly declare the offense a felony or misdemeanor.
Welfare and Institutions Code section 702 requires that when “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 juvenile court must “declare the offense to be a misdemeanor or felony.” Section 594, subdivision (a), is a “wobbler” and may be punished as either a felony or a misdemeanor. (§§ 594, subd. (b)(1); 17, subds. (a), (b).)
Welfare and Institutions Code section 702 “requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204, italics added.) One reason for this rule is to ensure the juvenile court “is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702.” (Id. at p. 1207.)
Remand is not automatic whenever the juvenile court fails to make the required declaration. The court’s error may be found harmless where the record shows 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 re Manzy W., supra, 14 Cal.4th at p. 1209.) However, “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. [Citation.]” (Id. at p. 1208.) “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 confinement limit.” (Id. at p. 1209.)
Here, the juvenile court did not make an express declaration that the offense was a felony. Although the juvenile court checked a box on the minute order indicating the offense was a felony, the minute order is not signed. The parties did not discuss at the dispositional hearing the issue of whether the offense was a felony or misdemeanor, and nothing in the record hints that the juvenile court was aware of and exercised its discretion to treat the offense as either a felony or a misdemeanor.
The People argue that, although the court made no “formalized oral announcement” and did not “discuss the felony/misdemeanor distinction” at the dispositional hearing, the record nonetheless demonstrates the court was aware of and exercised its discretion. The People point to the fact that the court checked the “felony” box on the minute order, placed the count number to the left of the box, and did not check the “misdemeanor” box. According to the People, this circumstance, added to the court’s imposition of a felony level period of maximum confinement, sufficed to show the court exercised its discretion. The People purport to acknowledge In re Manzy W.’s holding that a minute order notation is insufficient to meet the requirements of Welfare and Institutions Code section 702, but posit that the minute order in Manzy W. might have been a different form than that used here.
These contentions are singularly unpersuasive. Nothing in the record, other than the minute order notations, suggests the juvenile court was aware of or exercised its discretion to treat the crime as a misdemeanor. As we have noted, Manzy W. makes clear that neither a minute order notation nor the setting of a felony-level period of confinement are sufficient to meet the requirements of Welfare and Institutions Code section 702. In re Manzy W. thus compels the conclusion that remand is required to allow the juvenile court to make the required determination under Welfare and Institutions Code section 702. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
2. Maximum period of confinement.
As noted, the minute order reflects that the juvenile court set a maximum period of confinement of three years. As the parties agree, because the juvenile court ordered Jose home on probation, it was premature to set a maximum term of confinement.
At the dispositional hearing, the parties agreed that they would provide further briefing to the juvenile court on the question of the proper maximum period of confinement. The juvenile court deferred making a final decision on the maximum term of confinement, but indicated it would impose its tentative ruling of a three-year maximum subject to further briefing. The record does not reflect whether further proceedings were ever held on the issue, and the parties seem to assume the three-year maximum indicated on the minute order was the court’s final ruling. We assume likewise.
Welfare and Institutions Code section 726, subdivision (c) provides in pertinent part, “If 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.” Where a minor is placed in his parent’s custody, however, the juvenile court lacks discretion to set a maximum term of physical confinement. (In re Ali A. (2006) 139 Cal.App.4th 569, 571.) “When a juvenile ward is allowed to remain in his parents’ custody, there is no physical confinement and therefore no need to set a maximum term of confinement. Consequently, the maximum term of confinement included in [a] dispositional order . . . is of no legal effect.” (Ibid.)
The People contend that the court’s error was harmless. Ali A. reasoned that, when a juvenile is not physically confined, he or she suffers no harm when his or her maximum period of confinement is determined erroneously. “In the event the minor violates the terms of his probation, a further noticed hearing will have to be held before he is subjected to a modified disposition removing him from his parents’ custody. [Citation.] If that happens, then at that time the juvenile court will have to comply with section 726(c) and, if applicable, section 731(b) in setting and/or declaring the maximum term of physical confinement. In the meantime, the maximum term of confinement contained in the current dispositional order is of no legal effect.” (In re Ali A., supra, 139 Cal.App.4th. at pp. 573-574.)
Jose complains that allowing the juvenile court’s order to remain uncorrected “raises the possibility that a juvenile court adjudicating a subsequent petition may aggregate the maximum period of confinement” with the three-year term in this case. Ali A. rejected a similar contention, explaining, “We trust that will not occur, as this opinion will be part of the file in this proceeding, and we have made it clear that the maximum term of confinement in the present order is of no legal effect.” (In re Ali A., supra, 139 Cal.App.4th at p. 574, fn. 2.)
Here, we are remanding this matter so the court can make the required Welfare and Institutions Code section 702 finding. Thus, as a practical matter and in the interest of judicial economy, we direct the juvenile court to correct its error on remand and delete the maximum term of confinement from its minute order.
DISPOSITION
The matter is remanded to the juvenile court with directions to delete the maximum term of confinement and for an express determination of whether the offense alleged in count 1 is a felony or misdemeanor. In all other respects, the juvenile court’s order is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.