Opinion
F061972 Super. Ct. No. 511801
12-21-2011
In re ANGEL M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANGEL M., Defendant and Appellant.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Gomes, Acting P.J., Kane, J. and Poochigian, J.
APPEAL from a judgment of the Superior Court of Stanislaus County. Nan Cohan Jacobs, Judge.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General for Plaintiff and Respondent.
Appellant, Angel M., a minor, has been the subject of three juvenile wardship proceedings. In the first, in December 2009, the juvenile court placed appellant on non-wardship probation after appellant admitted an allegation that he committed misdemeanor vandalism (Pen. Code, § 594, subd. (b)(1)). He was subsequently adjudged a ward of the court after violating his probation. In the second wardship proceeding, in July 2010, the court adjudged appellant a ward of the court, following his admission of an allegation that he possessed a firearm capable of being concealed upon one's person, in violation of Penal Code section 12101, subdivision (a)(1) (section 12101(a)(1)). And in February 2011, in appellant's third and most recent wardship proceeding, appellant admitted allegations that he committed violations of Health and Safety Code section 11350, subdivision (a) (possession of cocaine) and Penal Code section 166, subdivision (a)(4) (willful disobedience of a court order). At the subsequent disposition hearing, the court continued appellant as a ward of the court; ordered that he serve 120 days in juvenile hall, with credit for 48 days served; and, based on the instant offense and offenses adjudicated in previous wardship proceedings, declared his maximum term of physical confinement to be 50 months. The instant appeal followed.
We refer to this proceeding as the 2010 proceeding.
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On appeal, appellant's sole contention is that the juvenile court failed to comply with Welfare and Institutions Code section 702 (section 702) in the 2010 proceeding, and therefore the judgment must be reversed and the matter remanded to allow the court to declare whether the offense adjudicated in that proceeding was a felony or a misdemeanor. We affirm.
DISCUSSION
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." Such an offense is commonly called a "wobbler." (In re Manzy W. (1997) 14 Cal.4th 1199, 1201 (Manzy W.).) The purpose of section 702 is two-fold: (1) to "provid[e] a record from which the maximum term of physical confinement for an offense can be determined, particularly in the event of future adjudications" (Manzy W., supra, 14 Cal.4th at p. 1205), and (2) to "ensur[e] that the juvenile court is aware of, and actually exercises, its discretion under . . . section 702" (id. at p. 1207).
"The language of [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." (Manzy W., supra, 14 Cal.4th at p. 1204, emphasis added; accord, In re Kenneth H. (1983) 33 Cal.3rd 616, 619 ["section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor"].)
As the parties agree, a violation of section 12021(a)(1) is a wobbler, and therefore under section 702, the court in the 2010 proceeding was required to declare the offense--a violation of section 12101(a)(1)--to be a misdemeanor or a felony. Appellant argues that "the record fails to reflect that the court was aware of its discretion to treat it as a misdemeanor." He asserts that "from the filing of the petition [in the 2010 proceeding] to the disposition, no one referred to the offense as anything other than a felony."
The People first argue that the matter is not cognizable on appeal because the claimed error occurred in the 2010 proceeding and appellant did not appeal from the disposition order in that proceeding within the prescribed time. Appellant argues that his claim of "Manzy W. error" is properly before us. He bases this contention on In re Ramon M. (2009) 178 Cal.App.4th 665 (Ramon M.), where the court accepted the minor's argument that "a dispositional order that fails to state whether [a wobbler] is a felony or a misdemeanor is tantamount to an unauthorized sentence" (id. at p. 675), and held that the claim of failure to comply with section 702 in an earlier proceeding was cognizable on appeal, even though appeal from the judgment in that proceeding was otherwise time barred. The People counter that Ramon M. is wrongly decided. However, we need not resolve this dispute. Assuming for the sake of argument that appellant's claim is properly before us, it is without merit.
In the instant case, the record contains a written disposition order from the 2010 proceeding, signed by the court and filed July 29, 2010. The order is on a pre-printed form, and consists of a series of statements, some of which contain a blank to be filled in as appropriate, and all of which are preceded by a box in which it can be indicated by a check mark or some other notation that the statement is part of the order. There is an "x" in the box preceding the statement, "The following counts may be considered a misdemeanor or a felony. The court finds the child's violations ...." There follows a list of two offenses, one of which is identified with the notation, "PC 12101(A)(1)." This notation is followed by two boxes, one labeled "Misdemeanor" and one labeled "Felony." There is an "x" in the box labeled "Felony."
The forgoing (1) demonstrates the court was aware that a violation of section 12101 by an adult can be a misdemeanor or a felony, and (2) constitutes an explicit declaration, on the record, that appellant's violation of section 12101(a)(1) was a felony. Therefore, the court complied with section 702. There was no error.
DISPOSITION
The judgment is affirmed.