Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. 07CEJ601873-1 Timothy Kams, Judge.
Kathryn G. Streem, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J. and Levy, J.
FACTS AND PROCEDURAL BACKGROUND
Appellant, R.K., contends on appeal the juvenile court did not make proper findings pursuant to In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy W.).
Allegations
On January 10, 2008, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant committed murder (Pen. Code, § 187, subd. (a), count one), felony vehicular manslaughter by gross negligence (§ 192, subd. (c)(1), count two), felony assault with a deadly weapon (§ 245, subd. (a)(1), count three), leaving the scene of an accident, a felony (Veh. Code, § 20001, subd. (a), count four), unlawfully driving or taking a vehicle, a felony (Veh. Code, § 10851, subd. (a), count five), receiving stolen property (vehicle), a felony (§ 496d, subd. (a), count six), and driving without a license, a misdemeanor (Veh. Code, § 12500, subd. (a), count seven). Counts one and two further alleged appellant inflicted great bodily injury (§ 12022.7, subd. (a)), the offenses were serious felonies (§ 1192.7, subd. (c)(8)), and were violent felonies (§ 667.5, subd. (c)(8)).
Unless otherwise indicated, all statutory references are to the Penal Code.
Plea
On March 25, 2008, appellant waived his rights and admitted counts two and three. The remaining allegations were dismissed with the prosecutor reserving the right to comment on them during the disposition hearing. In response to the court’s question, appellant said he was admitting the allegation in count two because it was true. Appellant admitted he drove a motor vehicle at a speed greater than 70 miles per hour, his driving was grossly negligent, he ran a red light, and as a result of his driving appellant killed the victim. Appellant admitted the allegation in count three was true.
Count Two
On December 2, 2007 at 12:04 p.m., Fresno police officers responded to a traffic accident at Ashlan and West. An off-duty police officer, M. Stanford, witnessed the collision. Stanford was stopped for a red light southbound on West when a 2001 Chevrolet Camero traveling north on West entered the intersection and collided with a Honda Element traveling east on Ashlan. The Chevrolet came to rest against a light pole on the northeast curb. The Honda skidded off the road and landed in a canal bank. The Honda was badly damaged.
The facts are derived from the probation officer’s report.
Stanford heard someone yell that the driver of the Chevrolet was leaving the scene. Stanford saw appellant walking near a McDonald’s restaurant where two bystanders stopped him. Stanford detained appellant, who said he was sorry and only 13 years old. Appellant told Stanford he was being chased by someone. Eyewitnesses confirmed it appeared appellant was being chased by a white S.U.V.
According to the probation report, appellant was just over three months away from his 16th birthday by the time of the disposition hearing.
The driver of the Honda was seriously injured and his wife was unconscious. One child in the Honda suffered a critical brain injury leaving him in a coma. A second child in the Honda suffered a severe cervical spine injury that he died from the next day. Two passengers in appellant’s car sustained moderate head injuries. Appellant explained that when he heard someone shout that someone was dead in the Honda, he went to McDonald’s to call his mother. A Sensing Diagnostic Module in the Chevrolet air bag system, set forth appellant’s speed prior to the collision at 73 miles per hour. The posted speed was 40 miles per hour.
Count Three
On July 12, 2007 at 12:30 p.m., a Fresno police officer was dispatched to an address on Dakota to investigate the stabbing of Mitchell Wright. Wright explained that he had been jumped by five males. J.Y., a member of the 3DK tagging gang, approached Wright and called out his name. J.Y. was holding a golf club. Wright told J.Y. he was not afraid of him. J.Y. challenged Wright to a fight.
Wright went to his car and took off his shirt. J.Y. and four other males ran toward Wright. Wright attempted to enter his car and leave, but J.Y. broke car windows with his golf club. Appellant threw a knife at Wright. The knife hit the window behind Wright. Another attacker, T.H., stabbed Wright in the back with a machete. Wright suffered a cut to his chin and a stab wound to his back that punctured a lung. Investigators found a knife with a 10-inch blade at the scene. J.Y. told investigators that Wright challenged him to a fight. Appellant joined J.Y. and threw a knife at Wright.
Probation Officer’s Report
Appellant told the probation officer he understood he would serve more time in custody, but did not want to serve several years. Appellant said a fellow ward served local time after killing two people in a drunk driving accident. Appellant explained he was being chased and was scared. Appellant denied intentionally causing the vehicle collision and acknowledged that what he did was wrong. When told about one child’s death and the extent of the injuries to the other occupants of the Honda, appellant turned red and his eyes swelled with tears. Appellant described the experience as a nightmare. Appellant had five arrests dating back to 2003. One was for burglary of a business.
The probation officer noted appellant was a prior member of a tagging crew, was involved in escalating criminal behavior, had poor school attendance and low academic achievement, and was beyond the control of his mother. The probation officer stated appellant established a pattern of behavior that proved to be a danger to the community. The probation officer considered local placement in Community Service Work Program, Electronic Monitoring, and the Elkhorn Correctional Facility Program but determined these programs were inadequate to deal with appellant’s magnitude of delinquency. The probation officer recommended commitment to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). The probation officer further recommended consecutive terms of commitment because each count was committed at a different time and place. Appellant’s maximum term of confinement was seven years.
DJF was formerly known as the California Youth Authority (CYA). (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) DJF was renamed by statutory enactment in 2005. (Welf. & Inst. Code, §§ 202, subd. (e)(5), 1000, 1703, subd. (c), & 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.3, 12838.5, 12838.13.) DJF is referenced in statutes, such as Welfare and Institutions Code sections 731 and 733, that formerly referred to CYA. (In re N.D. (2008) 167 Cal.App.4th 885, 890, fn. 2.) In this opinion, we will use the name DJF uniformly, even when referring to older cases and statutes.
Disposition Hearing
The juvenile court noted it read the probation report, a psychological evaluation of appellant, and numerous letters on behalf of the victims and the appellant. Defense counsel stated he substantially disagreed with the recommendation of the probation officer and believed local options were available for appellant. Defense counsel argued the Elkhorn program was not consulted. Defense counsel took issue with a statement in the psychological report that appellant could not feel remorse, noting appellant “cried like a baby” when he was informed of what happened to the victims of the car accident. Defense counsel complained about the conditions at the DJF.
Appellant’s psychological evaluation was not included in the record on appeal.
The prosecutor argued appellant lied at the scene of the accident when he said he was only 13 years old. The prosecutor observed appellant used the extreme right-hand lane to avoid traffic and shot his car into the intersection like a weapon. The prosecutor noted appellant was driving at 73 miles per hour in a 40 mile per hour zone. The prosecutor characterized appellant’s remorse as self-pity. The prosecutor believed commitment to the DJF was the proper disposition. The probation officer stated he believed appellant should be committed to the DJF for seven years, the maximum term of confinement.
The juvenile court noted appellant was driving a car without the permission of the owner and without a driver’s license. The court observed that appellant was driving in excess of 70 miles per hour. Referring to count three, the court noted the victim was being attacked by a person with a golf club as appellant threw a knife at the victim. The victim was stabbed by a third person using a machete. The court stated that “but for the grace of God we are not here for another death.” The court found the community had a lot to fear from appellant, who presented a serious danger to the community.
The court found appellant’s maximum term of confinement was seven years. The court exercised its discretion, however, to set the term of confinement at the DJF at five years four months. The court stated consecutive sentences were appropriate because there were separate victims and separate incidences. The court observed there were many good local programs, and with 10 years experience in the juvenile court, the court was intimately familiar with those programs. The court found that no local program could adequately address the problems appellant presents, especially public safety.
Respondent argues the court apparently misspoke, stating appellant would serve four years on count three, the assault with a deadly weapon count, and one year four months on count two. The commitment order sets forth the total term of five years four months without designating an apportionment between counts two and three. We are not sure the court misspoke. Because the juvenile court may chose any term of confinement under Welfare and Institutions Code section 731, subdivision (c), and because the commitment order is accurate, we find it does not matter how the court apportioned appellant’s term of commitment.
MANZY W. FINDING
Appellant contends the juvenile court erred in failing to find counts two or three was a felony or a misdemeanor. Section 192, subdivision (c)(1) can be punished as a felony or a misdemeanor. (§ 193, subd. (c)(1).) Section 245, subdivision (a)(1) can be also punished either as a felony or a misdemeanor. Here, the juvenile court did not make an express Manzy W. finding.
Welfare and Institutions Code section 702 requires the juvenile court to make an “explicit declaration” whether a wobbler offense is a felony or a misdemeanor. (Manzy W., supra, 14 Cal.4th 1199, 1204.) This requirement is “obligatory.” (Ibid.) One purpose of this rule is to ensure the juvenile court is aware of and actually exercises its discretion to treat the offense as a misdemeanor. (Id. at p. 1207.)
Welfare and Institutions Code section 702 has been interpreted to require an express, formal finding by the juvenile court. “[N]either 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.]” (Manzy W., supra, 14 Cal.4th at p. 1208.) Where a juvenile court fails to make such a designation, the matter need not be remanded if the record shows that the juvenile court was aware of and exercised its discretion to determine the felony or misdemeanor nature of a wobbler.
Where remand would be merely redundant, failure to comply with the statute is harmless error. Setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. 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. (Manzy W., supra, 14 Cal.4th at pp. 1209-1210.) If such a determination cannot be made from the record, the matter must be remanded for the limited purpose of the juvenile court making the appropriate designation. (In re Jose R. (1982) 137 Cal.App.3d 269, 280-281.)
At the disposition hearing the juvenile court found the gravity of both offenses to be serious. The car crash incident took one life and left the other occupants of the car seriously injured. The assault with a deadly weapon offense, as the court noted, could easily have left the victim dead. Appellant was lucky he did not hit the victim when he threw a knife at him. The court found no mitigating factors. The court found appellant was a danger to the community and he was not a suitable candidate for commitment to a local program. These findings are completely inconsistent with a finding that appellant’s offenses were misdemeanors rather than felonies.
The juvenile court was aware of its discretion to set a term of confinement less than the maximum term of confinement for an adult pursuant to Welfare and Institutions Code section 731 and, indeed, chose a term of confinement less than the maximum term. We find it unlikely the juvenile court would be aware of its discretion to set a term of confinement under Welfare and Institutions Code section 731 and not be aware of the requirements of Welfare and Institutions Code section 702 and Manzy W.
The Supreme Court rejected the contention that remand was automatic whenever a juvenile court failed to make a formal declaration under Welfare and Institutions Code section 702. (Manzy W., supra, 14 Cal.4th at p. 1209.) Our Supreme Court stated that “the record in a given case may show 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” and “[i]n such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error.” (Ibid.) Even if we were to find that the trial court committed Manzy W. error, remand would be redundant and the juvenile court’s error in failing to comply with the statute would be harmless error.
DISPOSITION
The judgment is affirmed.