Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. JJD057767, Valeriano Saucedo, Judge.
Rex Williams, 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, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Cornell, J.
PROCEDURAL BACKGROUND
On February 4, 2008, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging two counts that appellant, V.C., feloniously fired a gun at a vehicle (Pen. Code, § 246, counts one & three) and two counts of assault with a deadly weapon (§ 254, subd. (a)(2), counts two and four). Counts one and three alleged the offenses were serious felonies within the meaning of section 1192.7, subdivision (c). All four counts alleged appellant committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1), (2)), personally used a firearm (§ 12022.5, subd. (a) § 12022.5(a)), and personally caused great bodily injury (§ 12022.7, subd. (a)). The firearm enhancements alleged appellant’s offenses were serious felonies pursuant to section 1192.7, subdivision (c)(8) and violent felonies within the meaning of section 667.5, subdivision (c)(8).
Unless otherwise indicated, all statutory references are to the Penal Code.
The petition refers to section 12022.5(a)(1). Subdivision (a)(1) of section 12022.5 was redesignated simply as subdivision (a) by legislation passed in 2002. (Stats. 2002, ch. 126, § 3.) We refer to Section 12022.5(a) in our opinion.
On May 23, 2008, after a contested hearing, the juvenile court found true counts one and two. The court also found true the personal firearm use allegations as to both counts. The remaining allegations were dismissed. At the conclusion of a contested disposition hearing on July 16, 2008, the court set appellant’s term of confinement in Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) for eight years four months. Appellant contends the juvenile court erred in failing to expressly state whether counts one and two were misdemeanors or felonies pursuant to Welfare and Institutions Code section 702 and In re Manzy W. (1997) 14 Cal.4th 1199, 1207-1208, 1210 (Manzy W.).
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.
A separate hearing was conducted on August 8, 2008, to determine appellant’s custody credits.
FACTS
On March 22, 2007, Carlos Sandoval was returning from the grocery store in Dinuba in his 1999 Ford Expedition. As Sandoval approached Second Avenue, a vehicle in front of him stopped at a traffic light. There were two females in the front seats. The car belonged to appellant’s sister who was the driver of the car.
As Sandoval’s vehicle approached the stopped vehicle, a male in the back seat with a firearm began to shoot at him out of the vehicle window. Sandoval stopped and ducked down. Sandoval saw the shooter’s face for four seconds and heard five or six gun shots. Sandoval was shot in the hand. Sandoval was able to identify appellant from a photo lineup. Sandoval did not know appellant’s name but had seen him around the community.
After Sandoval identified appellant from a photo lineup, appellant’s bedroom was searched and investigators seized gang paraphernalia. Appellant later admitted to an investigator for the public defender that he was in the car with his sisters the day of the shooting and only fired at the driver of the Expedition after he shot at them.
Appellant had prior juvenile adjudications for misdemeanor theft, disturbing the peace or fighting for a criminal street gang (a felony), misdemeanor battery, and resisting arrest. Appellant was on probation when he reoffended.
MANZY W. FINDING
Appellant contends the juvenile court erred in failing to find count one or count two was a felony or a misdemeanor. Both section 246 and section 245, subdivision (a)(2) can be punished either as felonies or misdemeanors.
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.)
The instant case is distinguishable from Manzy W., however, based on findings by the juvenile court that appellant personally used a gun in violation of section 12022.5(a). Section 12022.5(a) expressly applies to “any person who personally uses a firearm in the commission of a felony or attempted felony….” The court’s finding that appellant committed the gun enhancement necessarily means both count are felonies. Had the court intended to treat either count as a misdemeanor, it could have stricken the enhancement upon a proper statement of reasons.
Furthermore, at the disposition hearing the juvenile court found the gravity of the offense to be serious because the appellant confronted the victim and fired a gun, which struck the victim in the hand. The court found the offense involved great violence, great bodily harm, and the threat of great bodily harm. The court further found the offense disclosed a high degree of cruelty, viciousness, or callousness. The court noted appellant could easily have shot the victim in the head or torso, causing much greater harm. The court noted previous attempts to rehabilitate appellant were not successful. At the time appellant committed the offense, he had absconded from a group home. The court found no mitigating factors. These findings are completely inconsistent with a finding that appellant’s offense was a misdemeanor rather than a felony.
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. The court chose to impose the midterm for count two and for the enhancement. 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 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, we would find the error harmless under the facts of this case. Remand for such a finding would be redundant.
DISPOSITION
The judgment is affirmed.