Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. TJ17915. John C. Lawson, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
V. H. appeals the juvenile court’s order sustaining a Welfare and Institutions Code section 602 petition alleging appellant committed second degree robbery in violation of Penal Code section 211 and assault with a deadly weapon in violation of section 245. Specifically appellant argues that in announcing her period of confinement, the juvenile court failed to determine whether the assault allegation was a misdemeanor or felony pursuant to Welfare and Institutions Code section 702, and that the court’s failure to make that determination mandates reversal. Appellant further complains that the minute order of the dispositional hearing did not accurately reflect the period of confinement pronounced by the court. We agree and conclude that the matter must be remanded to the juvenile court to allow the court to exercise its discretion to determine whether the assault alleged and found to be true was a misdemeanor or felony.
All additional statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On February 22, 2010, appellant, who was then 15 years old, came to the attention of the Long Beach Police when police received a report that a teenager had just committed an armed robbery in front of a grocery store. According to the victim, she was standing outside the store talking on her cell phone when appellant approached her and asked whether the victim was in a gang. The victim stated that she was not in a gang, and appellant identified herself as a part of the “Rolling 20’s” criminal street gang. Appellant then pulled out a knife. She demanded the victim’s cell phone and then “snatched it” out of the victim’s hand and fled on foot. Police apprehended appellant three blocks away from the store and the victim subsequently identified appellant at a field show-up identification.
Appellant was arrested and charged with being a minor coming within the provisions of Welfare and Institutions Code section 602. The petition, filed on April 23, 2010, alleged appellant committed the crime of second degree robbery in violation of section 211 in Count 1 and assault with a deadly weapon in violation of section 245 in Count 2 (“April 2010 Petition”). Both offenses were alleged as felonies in the petition.
On May 24, 2010, a second Welfare and Institutions Code section 602 petition was filed against appellant in an unrelated incident containing allegations of misdemeanor battery in violation of section 242 and misdemeanor vandalism in violation of section 594, subdivision (a) (“May 2010 Petition”). Appellant admitted the allegations in the second petition and the court sustained the allegations. Disposition in that matter was continued and ultimately appellant the disposition order on the May 2010 Petition was entered in conjunction with the April 2010 Petition.
After a contested hearing on the April 2010 Petition, the juvenile court sustained the allegations in Count 1 and Count 2 against appellant and declared her a ward of the court, placed her in the care, custody and control of the parole officer, in an open facility. The court did not declare whether the offense alleged in Count 2 was a felony or misdemeanor. At the hearing on June 15, 2010, the court described the maximum period of confinement as follows:
The court is calculating the maximum confinement time to be five years six months. The court is ordering that the [Penal Code section] 211 [Count 1-April 2010 Petition] be the principle [sic] term. The court is going to stay or run concurrent the Penal Code Section 245 [Count 2-April 2010 Petition]....
The court is going to aggregate the Penal Code section 594(a) by four months and aggregate the [Penal Code section] 242 [both alleged in the May 2010 Petition] by another two possible to come to the calculation of five years, six months.
The minute order prepared from the June 15 hearing does not reflect the maximum period of confinement pronounced by the court at the hearing.
This appeal followed.
DISCUSSION
Before this court appellant claims that she is entitled to remand because the court failed to declare whether the offense, which is a “wobbler, ” was a felony or a misdemeanor. She also claims that the minute order did not accurately reflect the court’s oral pronouncement of her period of confinement. The Attorney General concedes each of these claims.
I. The Court’s Determination on Count 2 of the April 2010 Petition
Welfare and Institutions Code 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 be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” (Italics added.) “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.).)
A juvenile court’s failure to make the required declaration under Welfare and Institutions Code section 702 does not automatically require a remand of the matter to the juvenile court. 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.” (Manzy W., supra, 14 Cal.4th at p. 1209.) If so, the failure to make an explicit declaration would be harmless error. Therefore, “[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.” (Ibid.)
Section 245, subdivision (a)(1) is a “wobbler” subject to a felony or misdemeanor characterization at the discretion of the juvenile court. Consequently, the court was required to make “an explicit declaration... whether [the] offense would be a felony or misdemeanor in the case of an adult.” (Manzy W., supra, 14 Cal.4th at p. 1204; see also Cal. Rules of Court, rule 5.780(e)(5) [in a § 602 matter, “[i]f any offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration, and must state its determination as to whether the offense is a misdemeanor or a felony”].)
Section 245, subdivision (a)(1) provides in pertinent part that assault with a deadly weapon “shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”
Here, the April 2010 Petition alleged the assault in Count 2 to be a felony. But, filing a Welfare and Institutions Code section 602 petition alleging a “wobbler” offense as a felony is insufficient to show that the juvenile court made the required Welfare and Institutions Code section 702 finding, as the contents of the petition are in the hands of the prosecutor, not the court. (Manzy, supra, 14 Cal.4th at p. 1207; In re Kenneth H. (1983) 33 Cal.3d 616, 619-620.) As the Attorney General concedes, none of these facts, individually or collectively, sheds light on whether the juvenile court knew that the adjudicated offense was a “wobbler” and that it had the option of determining the offense to be a misdemeanor.
As the Supreme Court in Manzy W. explained, a declaration that a minor has committed a felony, as opposed to a misdemeanor, “may... have substantial ramifications in future criminal adjudications of the minor, including under Penal Code section 667, subdivision (d)(3)(A)—the ‘Three Strikes’ law.” (Manzy W., supra, 14 Cal.4th at p. 1209.) Moreover, “‘“[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.]”’” (Ibid.) A reviewing court cannot take lightly the juvenile court’s obligation to declare an offense either a felony or misdemeanor.
We have carefully reviewed the entire record and find nothing that gives any assurance that the juvenile court was aware of its obligations under Welfare and Institutions Code section 702. During the disposition hearing, the juvenile court said nothing reflecting such awareness. 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 p. 1209.) Consequently, this matter must be remanded for the court to exercise its discretion pursuant to Welfare and Institutions Code section 702.
In addition, the court never determined whether the period of confinement on Count 2 was “stayed” pursuant to Penal Code section 654 or whether it was to run concurrent with Count 1. Even though it appears that the maximum term of confinement will not be affected either way, on remand the court should clarify its intent on the matter.
II. Omission in the Minute Order
Appellant also contends, and the Attorney General concedes, that the minute order of June 15, 2010, the dispositional hearing, failed to reflect the juvenile court’s oral pronouncement of her maximum period of confinement on the sustained petitions. Appellant is correct.
The minute order is intended to record the oral pronouncement of the court. Although the oral pronouncement by the court of its order will control over an inconsistent minute order, the order is nonetheless important in that it serves “to furnish a concise record showing the crime of which the defendant has been convicted and the punishment imposed, which will protect him [or her] against subsequent prosecution for the same offense.” (People v. Blackman (1963) 223 Cal.App.2d 303, 306.)
As set forth herein, this matter will be returned to the juvenile delinquency court for an additional proceeding with respect to Count 2 of the April 2010 Petition. Consequently, it is unnecessary to correct the June 15, 2010 minute order because it will be superseded by a subsequent dispositional order. We anticipate the juvenile court will ensure that the subsequent minute order will contain an accurate and complete record of the court’s oral pronouncement of its order.
DISPOSITION
The matter is remanded. The juvenile delinquency court is directed to conduct proceedings consistent with the views expressed in this opinion. In all other respects, the wardship order is affirmed.
We concur: PERLUSS, P. J., ZELON, J.