Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge, Super. Ct. No. JJD060302
THE COURTPaul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
The court readjudged appellant, Kao S., a ward of the court (Welf. & Inst. Code, § 602) after it sustained allegations charging Kao with lying to police officers (Pen. Code, § 148, subd. (a)(2)) and violating his probation (§ 777). On December 12, 2006, the court set Kao’s maximum term of confinement at six years six months and committed him to the Probation Youth Facility for one year. On appeal, Kao contends the court erred: 1) in calculating his maximum term of confinement; and 2) by its failure to declare the character of his burglary offense. We will find merit to these contentions and remand to the trial court for further proceedings. In all other respects, we will affirm.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTS
On November 8, 2005, 14-year-old Kao fought with another student at El Diamante High School in Visalia.
On December 7, 2005, the district attorney filed a petition charging Kao with battery on school property (Pen. Code, § 243.2, subd. (a)).
On July 24, 2006, Kao admitted the battery offense.
On July 29, 2006, Kao and several other youths broke into the Four Seasons Market. Kao was identified from a surveillance video and arrested later that night.
On August 1, 2006, the district attorney filed a petition charging Kao with second degree burglary (Pen. Code, § 460, subd. (b)) and lying to a police officer.
On August 10, 2006, Kao pled no contest to the burglary charge and the remaining count was dismissed.
On August 24, 2006, the court placed Kao on probation.
On October 27, 2006, while being interviewed by a Visalia police officer, Kao gave a false name and birth date and falsely told the officer that he had been excused from school for the day.
On October 31, 2006, a petition was filed charging Kao with one count each of lying to a police officer and violating his probation.
Following a hearing on November 29, 2006, the court sustained the above two counts.
On December 12, 2006, the court set Kao’s maximum term of confinement at six years six months as follows: six years for the second degree burglary offense, two months for the battery offense, and four months for the lying to a police officer offense.
DISCUSSION
The Failure to Declare the Character of Kao’s Burglary Offense
Kao contends the court erred by its failure to declare the character of his second degree burglary offense. We agree and will remand this matter to the trial court for further proceedings.
Section 702, in pertinent 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.” (Italics added.)
Second degree burglary is a so-called “wobbler” offense because it can be punished as a misdemeanor or felony. (Pen. Code, §§ 17, 18, 460, subd. (b)).
In In re Manzy W. (1997) 14 Cal.4th 1199, the Supreme Court held that the failure to expressly declare the character of an offense subject to section 702, requires remand to the juvenile court for strict compliance with this section (id at p. 1204), unless the record shows that despite its failure to comply with the statute, the court was aware of and exercised its discretion to determine the felony or misdemeanor nature of a wobbler (id at p. 1209).
The court here failed to declare the character of Kao’s second degree burglary offense at his adjudication hearing or disposition hearing. Further, our review of the record does not disclose any circumstances from which it can be inferred that the court was aware of its discretion to determine the character of these offenses and that it exercised this discretion.
At the August 10, 2006, hearing the court stated, “[The] [o]ffense charged in Count 1 [second degree burglary] is a felony.” Respondent contends that this statement reflects the court’s awareness that it could treat this offense as misdemeanor. We disagree. The above statement merely repeats the language of the second petition which charged Kao with “the crime of BURGLARY in violation of PENAL CODE SECTION 459, a Felony . . . .” Thus, in accord with Manzy, we will remand the matter to the trial court for it to declare the character of Kao’s second degree burglary offense.
Kao’s Maximum Term of Confinement
Kao contends the court erred in calculating his maximum term of confinement because it used a six-year term instead of a three-year term for his second degree burglary offense in calculating his term. Respondent concedes and we agree.
The maximum felony term that may be imposed for second degree burglary is three years (Pen. Code, §§ 18, 460, subd. (b)), & 461 subd. (2)), whereas the maximum misdemeanor term that may be imposed is one year (Pen. Code § 461. subd. (2)). Thus, if the court decides to treat the burglary offense as a felony, it should use a three-year term, rather that a six-year term, to calculate Kao’s maximum term of confinement. Should the court treat the burglary offense as a misdemeanor, the term could be one year if the burglary offense is chosen as the principal term or four months if utilized as a subordinate term.
DISPOSITION
The matter is remanded to the trial court for it to declare the character of Kao’s second degree burglary offense and for it to recalculate Kao’s maximum term of confinement. In all other respects, the judgment is affirmed.