Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. DL010903 Gregory W. Jones, Commissioner.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Roger G. appeals from the juvenile court’s disposition order committing him to the California Youth Authority (CYA). His sole contention on appeal is that the juvenile court failed to declare the status of five offenses as required by Welfare and Institutions Code section 702 (section 702).
Effective July 1, 2005, the California Youth Authority was renamed the “Division of Juvenile Facilities” within the Juvenile Justice Division of the Department of Corrections and Rehabilitation. (Gov. Code, §§ 12838, subd. (a), 12838.3.) We retain the designation CYA for clarity.
Section 702 provides, in pertinent part, “[i]f 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.” Our Supreme Court has consistently held that section 702 “means what it says,” i.e., section 702 requires the juvenile court to make an express declaration concerning the status of offenses punishable alternatively as felonies or misdemeanors, or so-called “wobblers.” (In re Kenneth H. (1983) 33 Cal.3d 616, 620; In re Manzy W. (1997)14 Cal.4th 1199, 1204; see also In re Ricky H. (1981) 30 Cal.3d 176, 191.)
The term “wobbler” applies to offenses “punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail.” (Pen. Code, § 17, subd. (b); Robert L. v. Superior Court (2003) 30 Cal.4th 894, 903.)
Notwithstanding this extraordinary clarity, the probation department, the district attorney, minors’ trial counsel, and the juvenile court frequently fail to identify cases requiring a section 702 express declaration. As a result, this court routinely files opinions with the sole issue being the juvenile court’s failure to comply with section 702 (In re Jordan G. (Aug. 17, 2006, G036368) [nonpub. opn.]; In re Anthony C. (May 20, 2006, G035480) [nonpub. opn..]; In re Rafael H. (Feb. 28, 2005, G033488) [nonpub. opn.]), and even more opinions when the issue is simply one of many. (In re Carlos I. (July 18, 2007, G037589) [nonpub. opn.]; In re Jovany M. (Feb. 27, 2007, G035904) [nonpub. opn.]; In re Israel A. (Feb. 8, 2006, G034624) [nonpub opn.]; In re Rafael L. (Jan. 4, 2006, G035193) [nonpub. opn.]; In re Robert C. (May 22, 2003, G030149) [nonpub. opn.].) Moreover, we have also noticed the development of what could be characterized as “standard” arguments for or against remand for further proceedings. Enough is enough.
The juvenile court has two opportunities to comply with section 702’s express-declaration requirement. According to provisions of the California Rules of Court, the juvenile court may comply with section 702 at either the adjudication hearing (Cal. Rules of Court, rule 5.780(e)(5)), or the disposition hearing (Cal. Rules of Court, rule 5.790(a)(1)). When the court fails to make the mandatory express declaration of status for an offense punishable alternatively as a misdemeanor or a felony and imposes a felony-level period of physical confinement, the reviewing court searches the entire record for any evidence the court understood it had the discretion to impose a misdemeanor-level period of physical confinement for the very same offense. (In re Manzy W., supra, 14 Cal.4th at p. 1209.) However, “neither 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.]” (Id. at p. 1208.)
As will become apparent, the record of the instant case is utterly devoid of evidence that the juvenile court understood Roger was charged with five offenses punishable as either misdemeanors or felonies. In the absence of such evidence, this court must remand the case for a new disposition hearing so that the juvenile court may exercise its sentencing discretion and comply with section 702’s express-declaration requirement, notwithstanding ample evidence of the court’s intent to treat these five offenses as felonies.
I
FACTS
In April 2002, the juvenile court sustained the allegations of Welfare and Institutions Code section 602 petition and declared then 13-year-old Roger a ward of the court. There have been several petitions since April 2002, and Roger has been confined in various juvenile facilities since February 2004.
On February 12, 2006, while Roger was confined at the Los Pinos Conservation Camp, he told several detainees that his mother was going to smuggle methamphetamine to him during her next visit. Following his mother’s next visit, a staff member, who had been alerted to the situation, saw Roger put something in his mouth. The staff member asked Roger to disgorge the item, but Roger refused to comply. A struggle ensued, and Roger bit one staff member’s index finger and threatened to “put a bullet” in the heads of two other staff members before they could control him. Roger’s tirade included several references to “SSK,” which is an acronym for the South Side Krooks (SSK) criminal street gang.
On February 22, 2006, the district attorney filed a five-count 17th subsequent petition that alleged Roger made felony criminal threats against Los Pinos staff members Andres Mancilla and Humberto Ramos (Pen. Code, § 422; counts 1 & 2), committed misdemeanor assault and battery on Ramos (§§ 241.1, 243, subd. (b); counts 3 & 4) and resisted Ramos in the lawful performance of his duties (§ 148, subd. (a)(1); count 5) during the February 12 incident. Although the offenses alleged in counts 1 through 4 are wobblers (§§ 186.22, subd. (a), 241.1, 243, subd. (b), 422), the deputy probation officer’s detention report labeled counts 1 and 2 as felonies and counts 3, 4, and 5 as misdemeanors.
All further statutory references are to the Penal Code unless otherwise stated.
On February 23, the district attorney amended the petition and added allegations that Roger made felony criminal threats for the benefit of SSK (§§ 186.22, subd. (b)(1), 422), committed felony assault and battery for the benefit of SSK (§§ 186.22, subd. (d), 241.1, 243, subd. (b); counts 3 & 4), and that he was an active participant in SSK (§§ 186.22, subd. (a); count 6). Count 5 remained a misdemeanor violation of section 148. (§ 148, subd. (a)(1).) The addition of gang-related enhancements and penalty provision allegations did not change the underlying character of the offenses. Thus, the 18th subsequent petition alleged Roger committed five wobbler offenses, notwithstanding the petition’s elevation of counts 3 and 4 to felony status.
On May 4, 2006, Roger admitted the allegations of the 18th subsequent petition. The Tahl form he signed lists each crime and enhancement, and gives the felony sentencing range for all counts except count 5. The total maximum confinement period listed was nine years and two months, which is an appropriate maximum confinement period for felony offenses. The form does not include a misdemeanor-level sentencing range, or otherwise explain that the offenses alleged were wobblers.
See Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.
Roger submitted the following factual basis in support of his pleas and admissions: “On or about February 12, 2006, in Orange County, I knowingly, and unlawfully: [¶] Threatened to commit a crime which would result in great bodily injury or death to Andres Mancilla and Humberto Ramos, with the specific intent that the statements be taken as a threat and it was immediate, unconditional and unequivocal so that the prospect of immediate execution put the victims in sustained fear. [¶] I also committed a battery upon Probation Department employee and a Custodial Officer. [¶] I also committed these offenses (the threats and the batteries) for the benefit, at the direction of, or in association with South Side Krooks, criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by their members. [¶] I also actively participated in South Side Krooks, which is an informal gang, with three or more members, that has in the last three years engaged in a pattern of criminal activity and which commits, as some of its primary activities crimes such as Felony Vandalism P.C. 594 and Felony Assault w/a Deadly Weapon P.C. 245. [¶] I also willfully delayed and resisted an[] officer.”
Before taking Roger’s plea, the juvenile court reviewed the Tahl form and asked Roger if he understood the form and the charges against him. Roger stated that he understood the charges, had discussed them with his attorney, and that he wished to waive his constitutional rights and admit the allegations of the 18th subsequent petition. The court recited the allegations of each count and its attendant enhancements and accepted Roger’s pleas and admissions count-by-count. The court stated that he found a sufficient factual basis for the plea, and that Roger had knowingly and intelligently waived his constitutional rights. The court reinstated Roger’s probation on the condition he serve “365 days in an appropriate juvenile facility.” The hearing concluded with the following advisement from the court: “Well, Roger, frankly, when I first read the description of your conduct several months ago I thought that this was a case which could easily result in you being committed to the Youth Authority. So clearly if you come back to court for any violations of probation or new law violations going to the Youth Authority is a very likely result.”
Although the court’s May 4 minute order states, “Court finds matter to be a felony as to counts 1, 2, 3, 4, and 6 and a misdemeanor as to count 5 with maximum term of confinement as 9 years and 2 months,” the reporter’s transcript for May 4 does not support this notation, nor does it include any reference to section 702. Moreover, the juvenile court granted probation without the benefit of a probation officer’s report and recommendation, which might have alerted the court to section 702 or to the fact that counts 1 through 4 and count 6 were wobbler offenses.
On August 8, 2006, the probation department filed a notice of hearing on a probation violation. The notice alleged Roger failed to follow institutional rules on several dates, damaged county property, engaged in physical altercations with other wards, threatened to kill staff members, and participated in gang activity. Specifically, the notice alleged that on June 13 Roger made another criminal threat against Ramos and Mancilla. The detention report submitted the following day recommended the court refer Roger to CYA based on his “entire record.”
Following a contested probation violation hearing, the juvenile court found by a preponderance of the evidence that Roger violated probation by making criminal threats against Ramos and Mancilla. The court set a for a disposition hearing and ordered the preparation of an updated probation report. The updated report stated that counts 1 through 4 and count 6 of the 18th subsequent petition had been “deemed felonies” by the court. The report did not refer to section 702or otherwise prompt the court to make an express declaration with respect to those counts.
The court convened the disposition hearing on November 7, 2006. Roger’s counsel, who argued against referral to CYA, called two of Roger’s teachers to testify on his behalf and submitted written statements from two other witnesses favorable to Roger’s position. The court considered the testimony presented as well as the reports submitted by both sides. However, the court ultimately followed the probation officer’s recommendation and committed Roger to CYA notwithstanding his minimal progress while on previous grants of probation. The court concluded the hearing with the following statement: “And my commitment is only on the allegations that were sustained in petition number 19. Those allegations admitted on May 4th of 2006. I am sorry petition 18. The allegations sustained in petition 18. Count 1 was a 422. Count 2 was another 422 count. Count 3 was a violation of Penal Code section 243 as a felony. Count 4 was a violation of 241.1 as felony. Count 5 was a violation of Penal Code section 148. Count 6 was a violation of Penal Code section 186.22(A).” (Italics added.)
Roger was committed to CYA for a total maximum period of confinement of eight years and four months with the jurisdictional limit being his 21st birthday. (Welf. & Inst. Code, § 1769, subd. (a).) The court selected count 1 as the principal term and imposed the two-year midterm for a violation of section 422, plus four years for the associated section 186.22, subdivision (b)(1) gang enhancement. The court imposed consecutive eight-month terms for counts 2, 3, and 6, and a consecutive four-month term for count 5. Punishment for count 4 was stayed pursuant to section 654. There is no mention of section 702 in the court’s minute order or the reporter’s transcript. Roger filed a timely appeal from the November 7 disposition order.
II
DISCUSSION
Section 702 serves two important functions: First, section 702 serves an administrative function by clarifying the limits of physical confinement for any given offense. As the Supreme Court stated, “If, for example, the juvenile court committed the minor to the Youth Authority for a present offense, the required declaration would constitute a record, for the purposes of determining the maximum term of physical confinement . . . . If, on the other hand, the juvenile court imposed probation, the required declaration would constitute a record, for the purposes of determining the maximum term of physical confinement in a subsequent adjudication . . . .” (In re Manzy W., supra, 14 Cal.4th at pp. 1206-1207.)
The second, and arguably more important, function served by section 702 is the creation of an unambiguous record. “[T]he requirement that the juvenile court declare whether a so-called ‘wobbler’ offense was a misdemeanor or felony also serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion . . . .” (In re Manzy W., supra, 14 Cal.4th at p. 1207.) Consequently, the test on appeal is whether the record demonstrates that the juvenile court was aware of its sentencing discretion, “despite its failure to comply with the statute.” (Id. at p. 1209.) If the record affirmatively establishes that the juvenile court understood its sentencing discretion but simply neglected to make an express declaration, the error is deemed harmless. (Ibid.) As the court noted, where the record reflects the juvenile court was aware of its sentencing discretion but through either inadvertence or due to interruption the court neglects to make an express declaration, in those cases “remand would be merely redundant.” (Ibid.)
Seizing on the notion of redundancy, the Attorney General points to the allegations of the 18th petition, statements in the probation report, the court’s minute orders, and the court’s statements at the adjudication and disposition hearings to argue that remand would be redundant here because the court clearly intended to treat all five wobbler offenses as felonies. The record supports the Attorney General’s assertion, but “[t]he 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, 14 Cal.4th at p. 1209.)
Nothing in this record demonstrates that the juvenile court was equally aware of its discretion to treat counts 1 through 4 and count 6 of the 18th petition as misdemeanors, or that the court retained discretion to impose a misdemeanor-length period of confinement. Nothing in the myriad probation department reports, written statements, or the petitions themselves would have alerted the court to the presence of wobbler offenses. If the court and counsel discussed the issue, this discussion did not occur on the record. Nor can we, as the Attorney General contends, use Roger’s admission to the offenses as charged to prove the court’s knowledge and awareness.
Moreover, this record does not support the notion that the juvenile court understood its discretion but simply forgot to make a formal utterance. To the contrary, at one point the court stated, “Given the nature of the charges and the situation that I am presented with I feel that I am for all practical purposes without any options . . . .” Under the circumstances, the disposition order must be reversed as to counts 1 through 4 and count 6.
Notwithstanding the state of the record, the Attorney General asserts counts 1 and 2 were rendered non-wobbler felonies by operation of law when the court found true the gang enhancements associated with those counts. Relying on section 186.22, subdivision (b) for this novel argument, the Attorney General asserts that because section 186.22, subdivision (b) applies to felonies and not misdemeanors the court necessarily found Roger committed a felony offense. Although the argument has a superficial appeal, our Supreme Court has held section 702’s express declaration requirement cannot be excused simply because the juvenile court made additional findings as to other allegations. (In re Kenneth H., supra, 33 Cal.3d at pp. 619-620.) Nor can we rely on Evidence Code section 665, which generally requires us to “presume” that the lower court has properly performed its official duty. (In re Manzy W., supra, 14 Cal.4th at p. 1209.)
Section 186.22, subdivision (b) provides, in pertinent part, “[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows . . . .” (Italics added.)
The Attorney General also argues the court fulfilled section 702 express declaration requirement with the following statement: “Count 3 was a violation of Penal Code section 243 as a felony. Count 4 was a violation of 241.1 as felony.” (Italics added.) We disagree with this interpretation of the record. As stated above, the 17th petition alleged counts 3 and 4 as misdemeanor offenses while the amended 18th petition alleged them as gang-related felonies. The disposition hearing followed a contested probation violation hearing. By then, it is possible some or all parties had lost the thread of the case. Under the circumstances, the more plausible explanation for the court’s brief reference to the word felony when reciting the allegations of the 18th petition is that the court wanted to clarify which of the two petitions (17th or 18th) he was referring to for Roger’s benefit. Regardless of the court’s motives, merely reciting the language of the petition does not satisfy the statutory requirement of an express declaration. (In re Kenneth H., supra, 33 Cal.3d at pp. 619-620; In re Ricky H., supra, 30 Cal.3d at p. 191.)
Our dissenting colleague agrees that the lower court erred when it failed to make the declaration the statute absolutely mandates. He finds, however, the record supports an interpretation that the lower court knew it had the discretion to treat the wobbler offenses as misdemeanors, an interpretation with which we disagree. Moreover, for almost 18 years this court has repeatedly reminded the juvenile court of its duty to declare the status of offenses and has repeatedly seen cases thereafter in which that court failed to do so. The juvenile court continues to ignore its duty. We therefore remand the case for the juvenile court to make this declaration.
Stated as simply as possible, there is nothing in the record that establishes the juvenile court was aware of its discretion to treat counts 1, 2, 3, 4, and 6 as misdemeanors at any point in these proceedings. The record does not contain a single reference to section 17, subdivision (b), section 702, the term wobblers, or that counts 1 through 4 and count 6 as alleged in the 18th subsequent petition were offenses punishable as either felonies or misdemeanors. On this record, the disposition order for these counts must be reversed and the case remanded for a new disposition hearing.
III
DISPOSITION
The adjudication on counts 1 through 6 and the enhancements is affirmed. The disposition order on counts 1, 2, 3, 4, and 6 is reversed. The matter is remanded for a new disposition hearing so that the juvenile court may determine whether counts 1 through 4 and count 6 should be treated as misdemeanors or felonies, and for the court to make an express declaration as required by section 702.
I CONCUR: MOORE, J., BEDSWORTH, J., dissenting:
I respectfully dissent.
BEDSWORTH, J.
Our Supreme Court has made it clear there is no need to remand for failure to comply with section 702 where the record reflects the juvenile court was aware of its discretion but inadvertently neglected to make an express declaration “remand would be merely redundant.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1209.) To my mind, this is such a case.
The record contains an explicit, if not express, finding by the juvenile court that five of the counts were felonies and one a misdemeanor “Court finds matter to be a felony as to counts 1, 2, 3, 4, and 6 and a misdemeanor as to count 5 with maximum term of confinement as 9 years and 2 months.” My colleagues correctly note this finding was apparently not allocuted as required by section 702, since it appears nowhere in the transcript. It cannot, therefore, constitute compliance with the statute.
But it is more than enough to convince me the juvenile court “was aware of its discretion” and merely “neglected” to express it audibly. It is our duty to uphold the decision of the court below if we can. “All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged to uphold the decision if possible.” (Fresno County Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 646.) “There is no blanket exception to the general rule for juvenile dependency appeals. Review of such appeals is governed by generally acceptable rules of appellate procedure, with proper deference to be paid to the factual findings and uncontested rulings of the juvenile court, and all appropriate inferences to be drawn in favor of the judgment below.” (In re Zeth S. (2003) 31 Cal.4th 396, 405.)
I think the juvenile court’s awareness of the nature of the charges is an “appropriate inference” in this case. I would find the error harmless. Reasonable minds will differ.