Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. Kams, Judge. Super. Ct. No. 06CEJ600532-1
Edgar Eugene Page, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., Dawson, J.
On July 14, 2006, the court found appellant, Ulises O., was a person described in Welfare and Institutions Code section 602, after he admitted allegations charging him with felony vehicle theft (count II/Veh. Code, § 10851, subd. (a)), felony receiving stolen property (count III/Pen. Code, § 496, subd. (a)), and misdemeanor vandalism (count IA/Pen. Code, § 594, subd. (a)). On appeal Ulises contends: 1) the court erred by its failure to declare the character of his vehicle theft and receiving stolen property offenses; and 2) the court committed Cunningham error. We agree with Ulises’s first contention and will remand the matter to the juvenile court for further proceedings. We will reject Ulises’s second contention and affirm the judgment in all other respects.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
Cunningham v. California (2007) 549 U.S. ----, 127 S.Ct. 856, 166 L.Ed.2d 856.
FACTS.
At 3:44 a.m. on June 21, 2005, a suspect was seen fleeing from a Chevrolet Tahoe in Madera that had two of its windows broken. The suspect got into a dark colored Saturn car and left the area.
At 4:05 a.m. two dark Saturn automobiles were observed by Madera police officers traveling together at a high rate of speed. The officers stopped both Saturns and found that one was being driven by Danny H. with Ulises as a passenger. The second Saturn was occupied by three other males.
Ulises told the officers that he and his confederates used a master key to steal two cars in Fresno. They also burglarized several other cars in Fresno and Madera while Ulises acted as a lookout. In Madera they abandoned one Saturn and stole another one. In the trunk of the car in which Ulises was riding, the officers found burglary tools and stolen goods valued in excess of $6,000 including credit cards, CD players, cell phones, car stereos, clothing, and numerous CD’s.
On June 23, 2005, the Madera County District Attorney filed a wardship petition charging Ulises with one count each of evading a police officer (Veh. Code, § 2800.2, subdivision (a)), vehicle theft, receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)), receiving of stolen property, and possession of burglary tools (Pen. Code, § 466).
On June 29, 2005, the district attorney filed an “A” petition charging Ulises with one count of vandalism.
On April 24, 2006, in Madera County Juvenile Court, Ulises admitted the charges in both petitions on condition that he receive deferred entry of judgment. The Madera court ordered the matter transferred to Fresno County, Ulises’s county of residence.
On June 1, 2006, the Fresno County Juvenile Court accepted the transfer of Ulises’s case.
On June 26, 2006, the court found Ulises unsuitable for deferred entry of judgment, allowed him to withdraw his plea, and ordered the matter transferred back to Madera County.
On July 14, 2006, Ulises appeared in Madera County Juvenile Court and, as noted above, admitted the vehicle theft, receiving stolen property, and vandalism offenses. During the change of plea proceedings, the following colloquy occurred:
“THE COURT: As to Count 2 on the original petition, do you admit or deny on June 21st, 2005, you did unlawfully take a certain vehicle -- specifically, a 1997 black Saturn -- the personal property of Duburno Umberto, without the consent of and with the intent to either permanently or temporarily deprive the owner of the title or possession of the vehicle; thereby, violating Section 10851[(a)] of the Vehicle Code, as a felony. Do you admit or deny?
“THE WITNESS: I admit. …[¶]…
“THE COURT: As to Count 4, do you admit or deny that on June 21st, 2005, you did unlawfully buy, receive, conceal, sell, withhold or aid in the concealing, selling, or withholding property; … thereby, violating Section 496(a) of the Penal Code a felony. Do you admit or deny?
“THE WITNESS: I admit.” (Italics added.)
At the conclusion of the hearing, the court ordered the matter transferred back to Fresno County.
On September 11, 2006, the Fresno County Juvenile Court accepted transfer of the case.
On October 2, 2006, the court placed Ulises on probation, set his maximum term of confinement at four years, and committed him to the Elkhorn Facility Boot Camp Program for a period not to exceed 365 days.
DISCUSSION
The Court Failed to Declare the Character of Two of Ulises’s Offenses
Ulises contends the court failed to declare the character of his vehicle theft and receiving stolen property offenses. We agree and will remand this matter to the juvenile court for this purpose.
Auto theft and receipt of stolen property offenses are so-called “wobbler” offenses because the court has discretion to treat each offense as a felony or a misdemeanor. (Pen. Code, §§ 17, 496, subd. (a); Veh. Code, § 10851, subd. (a).)
Section 702, in pertinent part, provides:
“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.”
The language of this section is unambiguous 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.) It is also “obligatory: ‘…section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor.’ [Citations.]” (Ibid.)
However, remand is not automatic when the court fails to make the requisite declaration. “[T]he 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. We reiterate, however, that 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 and to state a misdemeanor-length confinement limit.” (In re Manzy W., supra, 14 Cal.4th at p. 1209, italics added.)
On July 14, 2006, in taking Ulises’s plea on the vehicle theft offense, the Madera County court asked Ulises whether he admitted this offense “as a felony.” It is arguable that the quoted phrase reflects the Madera County court’s awareness that it could treat Ulises’s vehicle theft offense as a misdemeanor or felony. However, neither the Madera County court nor the Fresno County court expressly declared the character of Ulises’s auto theft or receiving stolen property offenses. Further, the Madera County court transferred Ulises’s case back to Fresno County for disposition and nothing in the record indicates that the Fresno County Juvenile Court was aware of its discretion to treat either felony offense as a misdemeanor.
Respondent contends the court declared Ulises’s offenses to be felonies at the July 14, 2006, change of plea proceeding. Respondent also contends the “felony declarations” in the clerk’s minutes of that hearing were sufficient to comply with section 702. (In re Michael S. (1983) 141 Cal.App.3d 814 [court adequately complied with the letter and the spirit of section 702 when it caused dispositional order stating “offense declared to be a felony” to be entered in its official minutes]; but cf. In re Dennis C. (1980) 104 Cal.App.3d 16, 23 [minute order reflecting that court found offense to be a felony did not comply with section 702 where the transcript of the hearing did not support this notation].) Respondent further contends remand is unnecessary because: 1) the above facts show the court was aware of its discretion to treat Ulises’s offenses as misdemeanors; and 2) remand would be redundant because the “severe” nature of the conduct underlying the charges makes it unlikely the court would declare the offenses to be misdemeanors. We will reject these contentions.
The record does not support respondent when she asserts that the court declared Ulises’s offenses to be felonies during the July 14, 2006, change of plea proceeding or in the clerk’s minutes of that hearing. The clerk’s minutes of that hearing has a box marked next to language which states, “Minor admits to: Count 2, VC10851(a) Felony and Count 4, PC496(a) Felony.” This does not satisfy the requirements of section 702 because it merely indicates that the Ulises admitted the allegations of the petition which charge each offense as a felony. (In re Nancy C. (2005) 133 Cal.App.4th 508, 512 [a minor's admission of a wobbler offense charged as a felony is not an “adjudication” of the misdemeanor or felony status of that offense].) Similarly, in taking Ulises’s plea the court merely repeated the allegations of the petition. Although the Madera County court asked Ulises whether he admitted the vehicle theft offense “as a felony,” as noted above, this did not amount to a declaration of the character of that offense and at most merely reflected the Madera County court’s awareness that vehicle theft is a wobbler offense.
For example, count II alleged in pertinent part that Ulises “unlawfully [drove] and [took] a certain vehicle … thereby violating Section 10851(a) of the Vehicle Code of California, a felony.”
Moreover, remand would not necessarily be redundant because of the alleged egregiousness of Ulises’s conduct. Whether the conduct underlying Ulises’s offenses merits a felony characterization of those offenses is for the juvenile court to decide in the exercise of its discretion. Thus, we conclude the court erred by its failure to declare the character of Ulises’s vehicle theft and receiving stolen property offenses.
Ulises’s Maximum Term of Confinement
Section 726, subdivision (c), in pertinent part, 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.
“As used in this section and in Section 731, ‘maximum term of imprisonment’ means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, …, plus enhancements .…”
The court used the upper term of three years for Ulises’s vehicle theft offense in calculating his maximum term of confinement. Ulises cites Cunningham v. California, supra, 549 U.S. ----, 127 S.Ct. 856, 166 L.Ed.2d 856 (hereafter Cunningham), to contend the court denied him his right to due process by using the upper term for his vehicle theft offense in computing his maximum term of confinement. A similar contention was recently rejected in In re Christian G. (2007) 153 Cal.App.4th 708.
In calculating this term, the court also used an eight-month term (one-third the middle term of two years) for Ulises’s receiving stolen property offense and a four-month term (one-third of 12 months) for the vandalism offense.
“In Cunningham the United States Supreme Court held that California's determinate sentencing law ‘violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments’ insofar as it permits a court to impose an upper term sentence based on facts found by the court and established only by a preponderance of the evidence. [Citation.] Except for a prior conviction, aggravating factors must be either admitted by the defendant or found by a jury and proved beyond a reasonable doubt. [Citation.]” (In re Chistian G., supra, 153 Cal.App.4th at pp. 712-713.)
In Christian G., the court rejected the minor’s contention that the juvenile court erred in using the upper term for two felonies in computing his maximum term of confinement. In so doing the court stated:
“[I]n setting a minor's theoretical maximum term of physical confinement based on the facts and circumstances of the case, section 731, subdivision (b), does not compel a juvenile court to adhere to the Cunningham restrictions or the aggravating/mitigating circumstances scheme applicable to the sentencing of adult felons. A contrary interpretation of the statute would ignore the distinction between the determinate sentencing law, which provides for fixed terms designed to punish, and the juvenile justice system, which provides for indeterminate terms designed to rehabilitate. ‘Any parallel between the adult felon and the juvenile delinquent who have violated the same penal statute ends at the point of beginning of two separate, distinct punishment/rehabilitation statutory schemes. The commitment of the youth, processed through the juvenile court, to the Youth Authority for the maximum period under . . . section 731 is in no way the equivalent of the commitment of the adult to prison for the same crime for the upper term based upon aggravation factors. [¶] When the juvenile is committed for the maximum period, he is in fact being committed for an indeterminate period. The adult sent to prison for the upper “term prescribed” will be confined for that specific period less any behavior-performance credits. [Citations.] At the heart of the Determinate Sentence Law is the concept of a fixed term. [¶] In contrast, to the juvenile, the “maximum” term is simply the outside time limit for a statutory program aimed directly at rehabilitation.’ [Citation.]” (In re Christian G., supra, 153 Cal.App.4th at p. 715.)
Even though the Christian G. court set the minor’s maximum term of confinement pursuant to section 731, its reasoning is equally applicable to a juvenile’s maximum term of confinement calculated pursuant to section 726. Thus, in accord with Christian G., we reject Ulises’s contention that the court violated his right to due process when it used the upper term for his vehicle theft offense to calculate his maximum term of confinement.
DISPOSITION
The dispositional order is reversed. The matter is remanded to the juvenile court for the limited purpose of having the court declare Ulises’s vehicle theft and receiving stolen property offenses to be either felonies or misdemeanors and recalculation of his maximum term of confinement if necessary. In all other respects, the wardship order is affirmed.