Opinion
H025425.
7-18-2003
In re MATTHEW S., A Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MATTHEW S., Defendant and Appellant.
After a contested jurisdictional hearing, the juvenile court found true an allegation that appellant conspired to commit second degree burglary (Pen. Code, §§ 182, subd. (a)(1), 459, 460, subd. (b)). The court found not true an allegation of second degree burglary (Pen. Code, § 459, 460, subd. (b)). When it found the conspiracy allegation true, the court said "the charge is a felony and the Court believes that it should — actually it cannot be reduced." The court set the maximum period of confinement at three years, and it placed appellant on six months of probation without wardship.
On appeal, appellant contends that a remand is required because the juvenile court failed to exercise its discretion to treat the offense as a misdemeanor rather than a felony. "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." (Welf. & Inst. Code, § 702.) Conspiracy to commit second degree burglary is alternatively punishable as a felony or a misdemeanor. (Pen. Code, §§ 182, subd. (a), 461.) Consequently, the juvenile court was required to declare the offense to be a either a felony or a misdemeanor. Its statement that the offense was "a felony" that "cannot be reduced" demonstrates that the juvenile court was unaware of its discretion to select between the two options. The Attorney General concedes that a remand is required, and we agree. (In re Manzy W. (1997) 14 Cal.4th 1199, 930 P.2d 1255.)
Disposition
The juvenile courts order is reversed, and the matter is remanded for the limited purpose of permitting the juvenile court to exercise its discretion to select between misdemeanor or felony treatment for the offense. If the juvenile court elects to treat the offense as a misdemeanor, it shall recalculate the maximum time of confinement. Otherwise, it shall declare the offense to be a felony and reinstate its original order.
WE CONCUR: Elia, Acting P.J., and Wunderlich, J.