Opinion
F050549
12-13-2006
In re JOSHUA R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSHUA R., Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Vartabedian, Acting P.J., Gomes, J., and Kane, J.
Pursuant to a negotiated disposition, appellant Joshua R., a minor, admitted an allegation that he unlawfully took or drove a vehicle in violation of Vehicle Code section 10851, subdivision (a) (section 10851(a)). Thereafter, at the disposition hearing, the juvenile court ordered appellant committed to the California Youth Authority, which is now known as the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ). The court declared appellants maximum period of physical confinement (MPPC) to be five years, based on the instant offense and offenses adjudicated in previous wardship proceedings.
Unlawful taking or driving of a vehicle in violation of section 10851(a) may be punished as either a misdemeanor or felony. (§ 10851(a).) On appeal, appellant argues that (1) the juvenile court failed to declare the instant offense either a felony or a misdemeanor, in violation of Welfare and Institutions Code section 702 (section 702), and (2) the record does not demonstrate the court was aware it was within its discretion to declare the instant offense a misdemeanor and set a misdemeanor-length confinement limit for that offense. Therefore, appellant contends, remand is required to allow the court to exercise this discretion. We will affirm.
The MPPC declared by the court includes, for the instant offense, a confinement limit of eight months which, in the context of the entire MPPC declared by the court, is a felony-length confinement limit for that offense. Where, as here, the juvenile court orders a minor removed from the physical custody of the minors parent or guardian it must determine the minors "maximum term of imprisonment." (Welf. & Inst. Code, § 726, subd. (c).) In setting this term, the court may elect to aggregate confinement periods from multiple offenses. (Ibid.) If the court so elects, as the court did here, the maximum term of imprisonment must be specified in accordance with the formula set forth in Penal Code section 1170.1, for determining the aggregate sentence for adult offenders in cases in which the court elects to impose consecutive sentences for multiple felonies. (Ibid.) An aggregate sentence determined in this manner consists of the "principal term" (the longest term imposed for any of the offenses) and "subordinate term[s]" (one-third of the middle term imposed for each other offense). (Pen. Code, § 1170.1, subd. (a).) The MPPC in the instant case was calculated in accordance with this formula. The "principal term" portion of the MPPC was a three-year period for a prior adjudication of grand theft from a person (Pen. Code, § 487, subd. (c)). The eight-month confinement limit for the instant offense is a "subordinate term" portion of the MPPC, representing one-third of the midterm for that offense.
DISCUSSION
Because the facts of the instant case are not relevant to the issue raised on appeal, we will forgo a recitation of those facts.
Section 702 provides, in relevant part: "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." Thus, because unlawful taking or driving of a vehicle in violation of section 10851(a) may be punished as either a misdemeanor or felony, the juvenile court was required to make the declaration required by section 702. We reject appellants contention that the court failed to do so.
Respondent argues appellant has waived this claim by failing to raise it below. We assume without deciding that appellants contention is cognizable on this appeal. Respondent also argues that at the time of his admission of the instant offense, both the court and appellants counsel described that offense as a felony; appellant thus admitted committing a felony violation of section 10851(a); and therefore appellants claim that the court erroneously failed to declare the instant offense either a felony or misdemeanor is waived. We further assume without deciding that this contention is without merit.
"The language of [section 702] 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." (In re Manzy W. (1997) 14 Cal.4th 1199, 1204, emphasis added; accord, In re Kenneth H. (1983) 33 Cal.3d 616. 619 ["section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor"].) One of the purposes of the statute is to "ensur[e] that the juvenile court is aware of, and actually exercises, its discretion under . . . section 702." (In re Manzy W., supra, 14 Cal.4th at p. 1207.)
In the instant case, the record contains a written disposition order signed by the court. The order is on a pre-printed form, and consists in large part of a series of statements, some of which contain a blank to be filled in as appropriate, and all of which are preceded by a blank in which it can be indicated by a check mark or some other notation that the statement is part of the order. There is no mark in the blank preceding the statement, "Count(s) _____ declared to be a misdemeanor." However, a check mark appears in the blank immediately preceding the statement, "Count(s) _____ declared to be a felony," and in the blank following the word, "Count(s)," the following has been handwritten: "1 VC 10851 (a)[.]" The foregoing constitutes an explicit statement by the court declaring the instant offense to be a felony. (Cf. In re Robert V. (1982) 132 Cal.App.3d 815, 823 [reference in " `Findings and Order " signed by the court to adjudicated offense as " `VC10851 felony " held in compliance with section 702 in that it was an "explicit finding" of felony status].) Thus, the juvenile court complied with section 702.
As indicated above, appellant, relying on Manzy W., also argues that nothing in the record indicates that the court was aware of its discretion to treat the instant offense as a misdemeanor and to state a misdemeanor-length confinement limit, and therefore remand is required. We disagree.
In Manzy W., the Supreme Court held that where a minor is found to have committed an offense that could be punished as either a misdemeanor or a felony if committed by an adult, and the juvenile court does not make the explicit declaration required by section 702, remand is required unless the record as a whole establishes that the court was aware of its discretion to treat the offense in question as either a misdemeanor or a felony. (In re Manzy W., supra, 14 Cal.4th at p. 1201.) Thus, a reviewing court need only examine the record as a whole to determine whether the court understood its discretion if the juvenile court failed to comply with section 702. Here, as demonstrated above, the court did make the explicit determination required by section 702. Nothing more is required.
Moreover, even if the courts written order did not comply with section 702, the error would be harmless. As indicated above, "In [a case in which the court fails to make the declaration required by section 702], when remand would be merely redundant, failure to comply with the statute would amount to harmless error. . . . 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." (In re Manzy W., supra, at p. 1209.) The portion of the disposition order quoted above is sufficient to indicate the juvenile court was aware of its discretion under section 702.
California Rules of Court, rule 1487(f) provides, in relevant part: "(f) [Findings of the Court (§ 702)]. On an admission or plea of no contest, the court shall make the following findings noted in the minutes of the court: . . . [¶] (9) In a section 602 matter, the degree of the offense and whether it would be a misdemeanor or felony had the offense been committed by an adult. If an offense may be found to be either a felony or misdemeanor, the court shall consider which description shall apply and shall expressly declare on the record that it has made such consideration and shall state its determination as to whether the offense is a misdemeanor or a felony. These determinations may be deferred until the disposition hearing." California Rules of Court, rule 1493(a) provides in relevant part: "At the disposition hearing: [¶] (1) If the court has not previously considered whether any offense is a misdemeanor or felony, the court must do so at this time and state its finding on the record. If 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 has made such consideration and must state its finding as to whether the offense is a misdemeanor or a felony."
DISPOSITION
The judgment is affirmed.