Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J211003, Laura H. Parsky, Judge.
McDONALD, J.
The juvenile court entered a true finding Kenneth J. committed assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)) and with personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)). The court continued Kenneth as a ward under the supervision of the probation officer and committed him to Camp Barrett for 365 days to be followed by home placement. Kenneth appeals, contending the case must be remanded for a declaration whether the offense is a felony or a misdemeanor and to calculate the maximum period of confinement. The People concede the point.
Penal Code section 245, subdivision (a)(1) describes a "wobbler," which is "an offense that would, in the case of an adult, be punishable either as a misdemeanor or as a felony. . . ." (In re Manzy W. (1997) 14 Cal.4th 1199, 1201.) When an offense found true is a wobbler the juvenile court must declare whether it is a misdemeanor or a felony. (Id. at pp. 1203-1209; Welf. & Inst. Code, § 702.) Here, the Welfare and Institutions Code section 602 petition alleged the offense was a felony and the minute order of the jurisdictional hearing states it is a felony. At the dispositional hearing, however, the court did not make the declaration required by Welfare and Institutions Code section 702. Furthermore, "the record as a whole [does not] [establish] 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, 14 Cal.4th at p. 1209.) We must therefore remand to the juvenile court for an express declaration whether the offense is a misdemeanor or a felony. We express no opinion as to which determination the court should make. If the court declares the offense is a felony, it must also calculate the maximum period of confinement. (Id. at p. 1205.)
DISPOSITION
The true finding is affirmed. The case is remanded to the juvenile court for a determination whether the offense is a felony or a misdemeanor and, if the former, for a calculation of the maximum period of confinement.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.