Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TJ17568. Catherine J. Pratt, Commissioner.
Jeanine G. Strong, 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, Assistant Attorney General, Xiomara Costello and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
The Los Angeles County District Attorney alleged in a Welfare and Institutions Code section 602 petition that minor T.T. (appellant) possessed a concealable firearm, a violation of Penal Code section 12101, subdivision (a). Appellant moved to suppress the recovered firearm pursuant to section 700.1. After hearing testimony from one officer, and two minors who were with appellant at the time he was detained and searched, the juvenile court denied the suppression motion.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Section 700.1 provides: “Any motion to suppress as evidence any tangible or intangible thing obtained as a result of an unlawful search or seizure shall be heard prior to the attachment of jeopardy and shall be heard at least five judicial days after receipt of notice by the people unless the people are willing to waive a portion of this time.”
Appellant admitted to the petition’s allegation. The juvenile court sustained the petition against appellant and declared him a ward of the court. The juvenile court ordered a maximum term of confinement of three years and placed appellant on house arrest until the dispositional hearing, which took place approximately two months after the adjudication. At the dispositional hearing, the juvenile court ended the house arrest, placed appellant on probation, and released him to the custody of his mother.
Appellant contends the following on appeal: (1) the juvenile court committed reversible error by denying the suppression motion; (2) remand is necessary because the juvenile court failed to declare expressly whether the possession offense was a felony or a misdemeanor as required by section 702 ; and (3) the juvenile court erred by setting a maximum term of confinement.
Section 702 provides that, in a juvenile proceeding, “[i]f the minor is found to have committed an offense which would in the case of an adult punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.”
We modify the judgment to strike the maximum term of confinement and remand the matter with directions to the juvenile court to declare whether the underlying offense was a felony or misdemeanor pursuant to section 702. We affirm the judgment in all other respects.
We derive the background facts from the testimony given during the suppression motion.
I. The Officer’s Testimony
On August 2, 2008, at approximately 7:00 p.m., Los Angeles Police Officer (LAPD) Nathaniel Beck was patrolling the area of Figueroa Street and 119th Street in the County of Los Angeles, “a known gang turf area.” Officer Beck was in a police vehicle along with a second officer named Officer Leese and a third unnamed officer. From a distance of 150 feet, Officer Beck saw appellant and two other minors (collectively the minors) walking in the middle of the roadway on Figueroa Street. Figueroa Street is a “good-sized roadway” that runs north-south and has four lanes of traffic. According to Officer Beck, the minors appeared to be in the process of crossing from the east sidewalk to the west sidewalk of Figueroa Street. By walking in the middle of the roadway, Officer Beck believed the minors had violated Vehicle Code section 21956, subdivision (a).
The record does not contain Officer Leese’s first name.
Vehicle Code section 21956, subdivision (a) provides: “No pedestrian may walk upon any roadway outside of a business or residence district otherwise than close to his or her left-hand edge of the roadway.”
Officer Beck testified that when the minors reached the west sidewalk of Figueroa Street, they began walking in a northbound direction toward 119th Street. As they were walking on the sidewalk, Officer Beck saw appellant drop a piece of white paper on the ground, an act that Officer Beck believed was a violation of Vehicle Code 23112, subdivision (a).
Vehicle Code section 23112, subdivision (a) provides: “No person shall throw or deposit, nor shall the registered owner or the driver, if such owner is not then present in the vehicle, aid or abet in the throwing or depositing upon any highway any bottle, can, garbage, glass, nail, offal, paper, wire, any substance likely to injure or damage traffic using the highway, or any noisome, nauseous, or offensive matter of any kind.”
The officers parked the police vehicle and approached the group at the corner of Figueroa Street and 119th Street. Officer Beck was five feet away from Officer Leese when he heard Officer Leese ask appellant whether Officer Leese could conduct a “pat-down” search of appellant. Officer Beck heard appellant reply: “Yeah. Go ahead, officer.” As Officer Leese searched appellant, Officer Beck saw appellant raise his face to the sky and sigh. Officer Beck saw Officer Leese recover a.22-caliber pistol from appellant’s front right pants pocket. After Officer Leese recovered the firearm, Officer Beck heard appellant say: “I just found that.”
Around the same time, Officer Beck asked one of the minors with appellant if he would agree to a patdown search. The minor agreed. The unnamed third officer asked the other minor whether he would agree to a patdown search. That minor also agreed. At the conclusion of the patdown searches, the officers arrested appellant. The officers “warn[ed]” the other two minors, and released them without issuing any citations. Officer Beck testified that he was “sure” Officer Leese explained to appellant the nature of his violations, but Officer Beck could not recall when this occurred.
II. The Minors’ Testimony
D.M.1, age 15 at the time, testified to the following: He, his twin brother (D.M.2), and appellant were crossing Figueroa Street when a police vehicle quickly drove toward them. Three officers jumped out of the vehicle and they ordered the minors to “get on the car.” This occurred in the middle of the roadway and the minors had not yet reached the sidewalk. The minors complied with the officers’ directions and placed their hands on the police vehicle’s roof. The officers did not explain to the minors why they were required to place their hands on the police vehicle. Without obtaining the minors’ consent, the officers searched the minors (one officer per minor).
On redirect examination, Officer Beck denied ordering the minors to place their hands on the police vehicle.
According to D.M.1, he did not recall seeing appellant drop a piece of paper on the ground. Nor did he recall hearing appellant say “Go ahead” to one of the officers. Although D.M.1 was not paying close attention to the search that was being conducted on appellant, he testified that he was close enough to appellant that he would have heard appellant’s consent to the search had it been given.
After the officers completed their searches, they continued to detain D.M.1 and D.M.2 until the officers could check their “names in the system.” During this process, one of the officers asked D.M.1, “You all from A.P.D.?” D.M.1 responded: “I don’t know what [you are] talking about.” Additionally, D.M.1 heard one of the officers ask appellant: “P.J.’s?” He heard appellant respond: “Nah.”
D.M.2, age 15, testified to the following: He, his twin brother (D.M.1), and appellant had just attended a picnic at a nearby park. They were walking on the sidewalk on Figueroa Street when they approached 119th Street. The minors began crossing 119th Street at the crosswalk when a police vehicle blocked their path. Three officers hopped out of the vehicle and directed the minors to put their hands on the police vehicle roof. The officers did not explain why they had stopped the minors. One of the officers asked D.M.2 where he was from, and D.M.2 answered “nowhere.” D.M.2 did not recall hearing an officer ask whether appellant would agree to a search.
On redirect examination, Officer Beck testified that he and the other officers stopped the minors while they were on the sidewalk on Figueroa Street. The minors had not yet entered the crosswalk at the intersection of Figueroa Street and 119th Street.
III. Proceedings Below
Defense counsel moved to suppress evidence of the recovered firearm and made the following arguments: (1) the minors were never in the middle of the roadway, and thus there was no basis to detain them; (2) even if the initial detainment was lawful, a patdown search was not permissible because there was no suspicion that the minors were armed and dangerous; (3) Officer Leese did not obtain appellant’s consent before searching him; (4) even if appellant gave his consent, the consent was not valid because it was a mere submission to the officer’s express authority; and (5) even if Officer Leese had the right to perform a patdown search of appellant, Officer Beck could not have known whether Officer Leese felt a weapon in appellant’s pants pocket to justify reaching into the pocket.
The prosecution responded with the following: (1) the officers had a right to detain appellant because they saw him walk in the middle of the roadway and litter on the sidewalk; (2) it was a credibility issue as to whether Officer Beck told the truth when he testified that he heard Officer Leese obtain appellant’s consent to a search; and (3) whether a reasonable officer would believe the minors were armed and dangerous was beside the point because appellant (and the other minors) consented to being searched.
The juvenile court found that the officers’ initial detention of appellant was lawful because “based upon the testimony of Officer Beck, [there was] a reasonable suspicion that there was a violation.” The juvenile court bypassed the issue of whether a patdown search was justified based on a reasonable suspicion that appellant was armed and dangerous because “[t]he basis of the search, according to Officer Beck, as I understood it, was the consent, not any concern for officer safety....” The juvenile court pointed out the conflict in testimony: “[Officer Beck] clearly indicates that there was consent. [D.M.1 and D.M.2] clearly indicate that there was not consent.” Recognizing that it was faced with “essentially a credibility issue” that was “very close to the line,” the juvenile court ultimately found “based upon the testimony and the totality of the circumstances as they were described to me, I do tend to believe that there was a consent to the search.”
Defense counsel interjected with: “You are saying that [appellant] consented to the pat-down search, not the overall search?” The juvenile court responded: “I don’t think at that point the distinction between a pat-down and a search is relevant. In my mind, those distinctions come up when you have a Terry v. Ohio situation where an officer has some leeway in doing a pat-down, essentially, for his or her own safety. That’s not where we were. So I am not looking at it as a pat-down and what the proper scope was as a pat-down. I am looking at it more under consent.” With that, the juvenile court denied the suppression motion.
Without making a formal adjudication on the section 602 petition, the juvenile court announced its tentative dispositional ruling to place appellant on house arrest, over the objection of the prosecution, which requested placement in a community camp. In light of the court’s tentative ruling, appellant admitted to the allegation of possessing a concealed weapon. The juvenile court accepted the admission, sustained the petition, declared appellant a ward of the court, and set a maximum term of confinement of three years. The juvenile court placed appellant on house arrest and ordered the dispositional hearing to take place in two months.
Two months later, the parties reconvened before the juvenile court for the dispositional hearing. The juvenile court admitted into evidence an updated probation report, which provided appellant “ha[d] done well on house arrest” and recommended that the court terminate house arrest. The juvenile court ended the house arrest, placed appellant home on probation, and released appellant to the care of his mother. Appellant timely appealed from the adjudication and dispositional orders.
DISCUSSION
I. Suppression Motion
Appellant contends the officers recovered the firearm in violation of the Fourth Amendment, and thus the juvenile court erred by denying the suppression motion.
The Fourth Amendment protects against “unreasonable searches and seizures” by law enforcement personnel. (U.S. Const., 4th Amend.) A temporary detention is a “‘seizure’” within the meaning of the Fourth Amendment. (Terry v. Ohio (1968) 392 U.S. 1, 16 (Terry).) Circumstances short of probable cause for an arrest may justify the temporary detention of a person by a peace officer for investigation and questioning. (Id. at p. 22.) To justify an investigative stop or a temporary detention, the officer must observe specific and articulable facts that would lead a reasonable officer to suspect some criminal activity has taken place or is occurring or about to occur, and that the person he intends to stop or detain is involved in that activity. (Id. at pp. 21-27.)
“‘An ordinary traffic stop is treated as an investigatory detention, i.e., a “Terry stop.” [Citations.]’” (People v. Durazo (2004) 124 Cal.App.4th 728, 734-735.) “A Terry stop is justified only if it is ‘based on at least reasonable suspicion that the driver has violated the Vehicle Code or some other law. [Citation.]’” (Ibid.)
“A search conducted without a warrant is unreasonable per se under the Fourth Amendment unless it falls within one of the ‘specifically established and well-delineated exceptions.’ [Citations.] It is ‘well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.’” (People v. Woods (1999) 21 Cal.4th 668, 674.) Evidence obtained as a result of a consent search is still subject to suppression, however, if the consent was given after a detention that violated the Fourth Amendment. (Florida v. Royer (1983) 460 U.S. 491, 501 [where initial detention violated the Fourth Amendment, defendant’s “consent was... tainted by the illegality,” and evidence obtained as a result of the consent search should have been excluded]; Wilson v. Superior Court (1983) 34 Cal.3d 777, 791-792 [same].)
“‘“An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law,... is also subject to independent review.”’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 255.) This standard of review “is equally applicable to juvenile court proceedings.” (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236.)
We turn first to whether the officers’ initial detention of appellant was reasonable. Appellant argues that the detention was unreasonable because: (1) Vehicle Code section 21956, subdivision (a) prohibits pedestrians from walking in roadways “outside of a business or residence district,” and here, appellant was inside a business or residence district; (2) Vehicle Code section 23112, subdivision (a) prohibits the act of littering “upon any highway,” and here, appellant littered upon a sidewalk.
Appellant failed to raise these arguments below, and therefore has forfeited them on appeal. (People v. Williams (1999) 20 Cal.4th 119, 136, [after the defense makes a prima facie showing that the police acted without a warrant, “[t]he prosecution then has the burden of proving some justification for the warrantless search or seizure, after which, defendants can respond by pointing out any inadequacies in that justification.... Defendants who do not give the prosecution sufficient notice of these inadequacies cannot raise the issue on appeal”].)
Assuming there was no forfeiture, we turn to the merits of appellant’s arguments. The first contention is supported by People v. Cox (2008) 168 Cal.App.4th 702 (Cox), certiorari denied February 18, 2009. In Cox, the defendant was detained for walking in the middle of a roadway within a business district. (Id. at pp. 706, 709.) The trial court ruled that the detention was lawful. The Court of Appeal reversed, holding: “Since [Vehicle Code] section 21956, subdivision (a), only restricts pedestrians from walking on roadways outside of business or residential districts, the logical implication (taking the obverse of this section) is that inside a business or residential district, a pedestrian may indeed walk in the middle of the road.” (Id. at pp. 708-709.)
Here, the evidence showed that the minors were coming from a picnic at a nearby park and walking along a main thoroughfare with four lanes of traffic and parking. One could reasonably infer from this evidence that the minors were inside either a business or residential district, and the prosecution put forth no evidence otherwise. Thus, the officers did not have a legal basis for detaining appellant for walking in the middle of the roadway. (Cox, supra, 168 Cal.App.4th at p. 711 [“[Vehicle Code] [s]ection 21956, subdivision (a) was enacted over 40 years ago. (Stats. 1959, ch. 3, § 2, pp. 1523, 1688.) This is more than enough time for any California police department to analyze and properly instruct its officers that pedestrians can legally walk in the roadway in a business or residential district”].)
This conclusion, however, does not end our inquiry. We turn next to whether the officers lawfully detained appellant for littering on the sidewalk. The parties disagree over whether Vehicle Code section 23112, subdivision (a), which prohibits “throwing or depositing upon any highway any... paper,” applies to sidewalks. Appellant cites Vehicle Code section 360, which defines “highway” as “a way or place... publicly maintained and open to the use of the public for purposes of vehicular travel[,]” and argues that a sidewalk is not a highway because it is not open for vehicular travel. The People cite Vehicle Code section 555, which defines “sidewalk” as “that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation for pedestrian travel.”
We need not decide whether the act of littering upon a sidewalk is a violation of Vehicle Code section 23112, subdivision (a), because it is, as the People point out, a violation of Penal Code section 374.4, which provides: “(a) It is unlawful to litter or cause to be littered in or upon public or private property.” (People v. McDonald (2006) 137 Cal.App.4th 521, 531 (McDonald) [“the legal prohibition against littering is set forth in [Penal Code] section 374.4”].) Appellant does not contend otherwise. We recognize that Officer Beck did not cite this particular provision as a justification for his detention of appellant at the suppression hearing. That fact, however, does not vitiate the reasonableness of the officers’ detention. (In re Justin K. (2002) 98 Cal.App.4th 695, 700 [“an officer’s reliance on the wrong statute does not render his actions unlawful if there is a right statute that applies to the defendant’s conduct”]; McDonald, supra, 137 Cal.App.4th at p. 530 [“although Officer Rojas may have relied upon the wrong statute in detaining McDonald, we will not hold his actions unlawful ‘if there is a right statute that applies to the defendant’s conduct’”].)
Thus, we conclude that the officers reasonably detained appellant because they observed specific and articulable facts, namely appellant’s act of dropping a piece of paper on the sidewalk, that led them to suspect that appellant had violated “‘the Vehicle Code or [the Penal Code].’” (People v. Durazo, supra, 124 Cal.App.4th at pp. 734-735.)
Because we conclude the initial detention of appellant was reasonable under the Fourth Amendment, we necessarily reject appellant’s argument that his consent to be searched was invalid because it came after an unlawful detainment.
We turn next to the issue of whether Officer Leese’s search of appellant’s person was reasonable under the Fourth Amendment.
A search conducted pursuant to a valid consent is reasonable under the Fourth Amendment. (People v. Woods, supra, 21 Cal.4th at p. 674.) We are thus faced with two inquiries: Did appellant consent to be searched? And if he did, was the consent valid?
As to the first inquiry, Officer Beck testified that he heard Officer Leese ask appellant whether Officer Leese could conduct a “pat-down” search of appellant. Officer Beck heard appellant reply: “Yeah. Go ahead, officer.” D.M.1 and D.M.2, who were also present during the detention, testified that Officer Leese searched appellant without asking for or obtaining appellant’s consent. Faced with this conflicting testimony, the juvenile court ruled that it found Officer Beck’s version of the events more credible and that appellant indeed consented to being searched. As an appellate court, we are not in a position to second guess the juvenile court’s resolution of this factual conflict and must affirm where, as here, substantial evidence supports the ruling. (People v. Ayala, supra, 23 Cal.4th at p. 255.)
As to the second inquiry, the consent was obtained after a valid detention. Absent an argument that the consent was given involuntarily or under duress, which appellant does not argue on appeal, the consent was valid. (Florida v. Royer, supra, 460 U.S. at p. 501.)
Appellant argues that even if we credit Officer Beck’s testimony that appellant consented to being searched by Officer Leese, the search was still unreasonable because the officers did not have a reason to believe that appellant was armed and dangerous. Appellant’s argument misses the mark. While it is certainly true that an officer may not conduct a patdown search of an individual during a Terry stop without a “reason to believe that he is dealing with an armed and dangerous individual,” (Terry, supra, 392 U.S. at p. 27), that rule does not apply when the person detained has already consented to being searched. The cases cited by appellant all involve situations in which the individuals detained did not consent to being searched. (In re H.M. (2008) 167 Cal.App.4th 136, 140-141 [police officer stopped minor after seeing minor run through heavy traffic; officer searched minor without his consent]; People v. Collier (2008) 166 Cal.App.4th 1374, 1376-1377[deputy sheriff stopped defendant because defendant’s vehicle was missing a front license plate; sheriff searched defendant without his consent]; Illinois v. Wardlaw (2000) 528 U.S. 119, 121 [officers stopped defendant after seeing him flee in opposite direction; officers searched defendant without his consent].) We are aware of no case, and appellant cites no case, that holds an officer cannot search a person who has consented to being searched unless the officer also believes the person is armed and dangerous.
II. Wobbler Offense
Appellant contends the juvenile court failed to declare expressly whether the underlying possession offense was a felony or a misdemeanor, as required by section 702.
If a juvenile court finds that a minor has “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.” (§ 702.) “The requirement is obligatory” and “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 (Manzy W.).) Where, as here, the juvenile court orders probation, “the required declaration would constitute a record, for the purposes of determining the maximum term of physical confinement in a subsequent adjudication, whether the prior offense was a misdemeanor or a felony.” (Id. at pp. 1206-1207.)
If there is not an explicit or formal declaration by the juvenile court as to whether a particular offense is a felony or misdemeanor, remand is not “‘automatic[.]’” (Manzy W., supra, 14 Cal.4th at p. 1209.) “Thus, speaking generally, 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. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error.” (Id. at pp. 1209-1210.) “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 and to state a misdemeanor-length confinement limit.” (Ibid.)
Here, appellant admitted to possessing a concealable firearm, which is punishable “[b]y imprisonment in the state prison or in a county jail....” (Pen. Code, § 12101, subds. (a), (c)(1).) Possession of a concealable firearm by a minor is a “wobbler” subject to a felony or misdemeanor characterization at the discretion of the juvenile court. (In re Jose T. (1997) 58 Cal.App.4th 1218, 1221.) Thus, the juvenile court in this case was required to make an express declaration as to whether the possession offense was a felony or a misdemeanor.
We have reviewed the record and can find no express declaration by the juvenile court deeming the possession offense a felony or a misdemeanor. Nor does the record as a whole establish that the juvenile court was aware of, and exercised its discretion to determine the felony or misdemeanor nature of appellant’s offense. At no point during the proceedings did the juvenile court indicate that the offense was a wobbler, and it certainly did not indicate that it was exercising its discretion to declare the offense either a felony or a misdemeanor. It is true that the petition alleged the offense as a felony, and the juvenile court set a maximum term of confinement of three years, which is a felony level punishment. But the People concede, as they must, that these factors alone are insufficient to show that the court exercised its discretion to declare the offense a felony. (Manzy W., supra, 14 Cal.4th at p. 1208 [“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”].)
In support of their argument that the juvenile court exercised its discretion to declare the offense a felony, the People point to two instances in which the juvenile court referred to the underlying offense as a “felony.” Those two instances arose in the following context: First, after appellant indicated that he would admit to the possession allegation in the petition, this exchange took place:
“The Court: I am going to go over now, [T.T.] with you what the charges are and what your rights are. All right? The charges are that on or about August 2nd, 2008, you committed the crime of possessing a firearm. It’s a violation of Penal Code section 12101 (a)(1), and it’s a felony. Do you understand those charges?
“The Minor: Yes, ma’am.”
Second, after informing appellant of his various rights, including the right to a trial on the charges against him and the right to confront and cross-examine witnesses, this exchange took place:
“The Court: So to the charges on or about August 2nd, 2008, you were in possession of a firearm in violation of Penal Code section 12101(A)(1), a felony, do you admit or do you deny those charges?
“The Minor: I admit.”
When read in context, the juvenile court’s two references to the possession offense as a “felony” clearly came from the language used in the prosecution’s petition. The court was merely repeating the charges, as they were alleged by the prosecution in the delinquency petition, during its taking of appellant’s admission. Such repetition is insufficient to show that the juvenile court exercised its discretion in declaring the underlying offense either a felony or misdemeanor. (In re Ricky H. (1981) 30 Cal.3d 176, 191 [“The record does indicate that the offense was described as a felony in the [Welfare and Institutions Code] section 602 petition and that appellant admitted the truth of the charge. However, the preparation of a petition is in the hands of the prosecutor, not the court. The mere specification in the petition of an alternative felony/misdemeanor offense as a felony has been held insufficient to show that the court made the decision and finding required by section 702”].)
The People also point to the fact that the juvenile court elected to place appellant on probation, and not in a community camp as requested by the prosecution, as support for its position that the juvenile court declared the offense a felony. It is settled that the setting of a felony-level period of confinement does not substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. (Manzy W., supra, 14 Cal.4th at p. 1208). If the setting of a felony-level confinement period is insufficient to demonstrate that a particular offense is a felony, then we are at a loss to see how placing a minor on probation is sufficient to demonstrate that the offense is a felony.
As the Supreme Court in Manzy W. explained, a declaration that a minor has committed a felony, as opposed to a misdemeanor, is wrought with consequences. (Manzy W., supra, 14 Cal.4th at p. 1209 [“‘the potential for prejudice from a finding of felony status has been increased by passage of Proposition 8, which provides that any prior felony conviction, whether adult or juvenile, “shall... be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding[;]”’” “it may also have substantial ramifications in future criminal adjudications of the minor, including under... the ‘Three Strikes’ law[;]” “[i]n addition, of course, ‘“[i]t is common knowledge that such an adjudication when based upon a charge of committing an act that amounts to a felony, is a blight upon the character of and is a serious impediment to the future of such minor.’ [Citation.].”) Thus, we do not take the juvenile court’s obligation to declare an offense either a felony or misdemeanor lightly.
Given the record as whole, we cannot say that “the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit[.]” (Manzy W., supra, 14 Cal.4th at pp. 1209-1210) “[I]t is entirely possible that the judge simply sentenced [appellant] as a felon without considering the possibility of sentencing him as a misdemeanant. Because of this possible oversight, we have no alternative but to remand the matter to the juvenile court for clarification.” (In re Dennis C. (1980) 104 Cal.App.3d 16, 23.)
III. Confinement Period
Appellant contends the juvenile court erred by setting a maximum term of physical confinement in light of its dispositional order placing appellant on probation and releasing him to the custody of his mother. Appellant urges us to strike the maximum term of confinement from the judgment.
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 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.” When a minor is not removed from the physical custody of his parents, section 726, subdivision (c) does not apply and it is error for the juvenile court to impose a maximum term of confinement. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541; In re Ali A. (2006) 139 Cal.App.4th 569, 574.)
Here, the juvenile court placed appellant on probation and released him to the custody of his mother. Because the juvenile court did not remove appellant from the physical custody of his mother, it was error under the authorities cited above for the court to impose a maximum term of confinement.
The People agree that the juvenile court should not have set a maximum term of confinement in light of its dispositional order, but argue that striking the term in this case is unnecessary “because it has no legal effect.” While the maximum term of confinement may very well have no legal effect given appellant’s probation status, we do not consider that a convincing reason to let the error stand. As the Court of Appeal explained in In re AliA., supra, “[t]he criticism of this practice in prior opinions without actually ordering a correction of the disposition seems to have had little effect. Thus, our order is to strike the specification of a term of imprisonment.” (In re Matthew A., supra, 165 Cal.App.4th at p. 541.)
DISPOSITION
We modify the judgment to strike the maximum confinement term set by the juvenile court. We remand with directions to the juvenile court to make an express declaration as to whether the underlying offense is a felony or misdemeanor as required by section 702. We affirm the judgment in all other respects.
We concur: BOREN, P. J., DOI TODD, J.