Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, County Super. Ct. No. NJ21619 John Ing, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Patricia Winters, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Sergio B. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a finding that he vandalized property causing damage over $400. He was placed home on probation and ordered to serve 15 days in juvenile hall as a condition of probation. He contends the trial court’s failure to declare on the record whether the vandalism was a felony or misdemeanor requires a remand to the juvenile court. He also contends the term of confinement, as stated in the minute order, should be stricken. For reasons stated in the opinion, we affirm the order of wardship and remand the matter to the juvenile court to declare whether the vandalism was a felony or a misdemeanor and to strike the maximum term of confinement as stated in the minute order.
FACTUAL AND PROCEDURAL SUMMARY
The record establishes that on August 9, 2006, using a steel pipe, appellant smashed the windshield of a car belonging to Bernd Schaefer. Shortly before, Mr. Schaefer had parked his vehicle in the parking lot of an apartment building owned by his family. He questioned appellant and other youths, who were loitering, about whether they lived in the building and told the other youths to leave. Mr. Schaefer paid $434.63 to replace his windshield.
DISCUSSION
I
Appellant contends the juvenile court’s failure to declare on the record whether the vandalism was a felony or misdemeanor requires a remand to the juvenile court. Respondent agrees. Welfare and Institutions Code section 702 provides in relevant part, “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.” A violation of Penal Code section 594, subdivision (a) is a wobbler and may be punished either as a felony or a misdemeanor. (Pen. Code, § 594, subd. (b)(1).)
The language of Welfare and Institutions Code section 702 “is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) “[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.]” (Id. at p. 1208.) Here, while the petition and minute order state the offense is a felony and the minute order reflects that the court set the maximum term of confinement at the felony level, nothing in this record establishes that the juvenile court was aware of its discretion to sentence the offense as a misdemeanor rather than a felony. Remand, therefore, is required.
II
Appellant contends the minute order should be corrected to delete any reference to a maximum term of confinement for appellant’s disposition of home on probation. Welfare and Institutions Code section 726, subdivision (c) provides, “If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to [Welfare and Institutions Code] Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.”
By its express terms, Welfare and Institutions Code section 726, subdivision (c) applies only if a minor is removed from the physical custody of his or her parent or guardian. Appellant was not removed from the physical custody of his parents, there was no confinement, and the order setting a maximum term of confinement is erroneous. (In re Ali A. (2006) 139 Cal.App.4th 569, 573.)
DISPOSITION
The order of wardship is affirmed. The matter is remanded to juvenile court with directions to declare whether the instant offense is a felony or misdemeanor and to strike from the minute order the maximum term of confinement.
We concur: EPSTEIN, P. J., SUZUKAWA, J.