Opinion
A153515
10-31-2018
In re A.O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.O., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J17-00885)
Now 18-year-old A.O. appeals from the juvenile court's orders in part placing him on probation for unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and evading a peace officer-reckless driving (Veh. Code, § 2800.2, subd. (a)). A.O. contends the juvenile court failed to exercise its discretion to determine whether his offenses, which are "wobblers," were felonies or misdemeanors. The Attorney General concedes the court erred, and we agree. Accordingly, we remand the matter for the court to exercise its discretion to make that determination.
FACTUAL AND PROCEDURAL BACKGROUND
A juvenile wardship petition was filed on August 8, 2017, alleging A.O. committed: (1) felony unlawful driving or taking of a vehicle, a Husqvarna TE 250 dirt bike (Veh. Code, § 10851, subd. (a); count one); and (2) felony evasion of a peace officer-reckless driving (Veh. Code, § 2800.2, subd. (a); count two).
At a contested jurisdiction hearing, Antioch Police Officer Jonathan Downie testified he was on patrol in a marked vehicle at about 3:00 p.m. on July 6, 2017, when he saw a dirt bike speeding down a public street at about 50 to 60 miles per hour while performing wheelies. Traffic was fairly heavy at the time, and the posted speed limit was 35 miles per hour.
As the dirt bike sped by, the driver turned his head around as if to see whether Downie was following him. Downie followed the dirt bike and turned on his vehicle's siren and overhead lights to initiate a traffic stop. The driver did not stop, and instead ran a red light and sped off, performing three more wheelies and running a stop sign. Downie chased the dirt bike but eventually lost sight of it. During the chase, the driver of the dirt bike ran a total of three red lights and one stop sign.
Deputy Michael Ireland of Contra Costa County Sheriff's Office's Air Support Unit was on duty on a helicopter on July 6, 2017. At about 3:06 p.m., he received notification about a dirt bike chase. He located the dirt bike and followed it from above for about 20 to 30 minutes, and watched as the driver "was using all lanes, going through stop signs, driving over the median, driving over sidewalks, going the wrong way, [and] using residential walkways." The driver did wheelies and went through red lights. At some points, the driver appeared to be trying to hide by going under a canopy of trees, making U-turns, and staying under an overpass for several minutes. Ireland did not see anyone succeed in performing a traffic stop of the dirt bike.
Contra Costa County Sheriff's Deputy Kevin Neller was on patrol that afternoon when he learned about law enforcement's pursuit of a dirt bike. Neller spotted the dirt bike near an intersection in Pittsburg. Neller activated his vehicle's siren and emergency lights, but the driver looked back at Neller and accelerated away at speeds ranging from 40 to 60 miles per hour. There was a decent amount of traffic on the road, and there were people, including "kids after school," walking around. Neller saw the dirt bike make several traffic code violations, including speeding, going through at least three red lights, and forcing other drivers to brake or swerve to avoid colliding with the dirt bike. Neller pursued A.O. for over two miles before he decided to stop because it was becoming dangerous and because he knew there was a helicopter overhead.
Neller later learned that other officers eventually detained the dirt bike in Antioch. Neller traveled to the scene and observed that the dirt bike driver—later identified as A.O.—was wearing the same shirt and pants and had the same long, black hair as the driver Neller had chased earlier. Neller read A.O. his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), and A.O. said he understood those rights. A.O. said he believed the dirt bike had been stolen. He said he had been riding the dirt bike for a couple of days and had been avoiding law enforcement. He said someone named J.R. had given the dirt bike to him on July 6, 2017, but that he had also been in possession of it before that day.
Witness G.D. testified that he owned multiple dirt bikes. On or about May 11, 2017, one of his bikes—a 2016 Husqvarna TE 250, worth approximately $7,500—was stolen from his garage while he was away on a business trip. On or about July 6, 2017, he received a call from law enforcement that they had recovered his bike. He went to Antioch to look at the bike, and after checking the vehicle identification number and some other distinguishing marks he had placed on the bike, he identified the bike as the one that had been stolen from him. He did not know or recognize A.O. and had not given him permission to possess or drive the bike.
The juvenile court sustained both allegations. At disposition, the court declared wardship with no termination date and committed A.O. to the Orin Allen Youth Rehabilitation Facility for a six-month regular program. The court ordered A.O. to serve an additional 180 days on conditional release, with the first 60 days of that to be served on home supervision. The court also imposed various probation conditions, including that A.O. obey all laws, abstain from marijuana use, and write an apology letter to his victim. The court set A.O.'s remaining maximum confinement time at 3 years 7 months and 25 days.
DISCUSSION
A.O. contends the juvenile court failed to exercise its discretion to determine whether his offenses, which are "wobblers," were felonies or misdemeanors. The Attorney General concedes the court erred, and we agree.
As noted, the petition charged A.O. with felony unlawful driving or taking of a vehicle, a Husqvarna TE 250 dirt bike (Veh. Code, § 10851, subd. (a); count one), and felony evasion of a peace officer-reckless driving (Veh. Code, § 2800.2, subd. (a); count two). Both of these offenses, known as "wobblers," are punishable in the court's discretion as either a felony or a misdemeanor. (E.g., People v. Douglas (1999) 20 Cal.4th 85, 88; People v. James (1984) 157 Cal.App.3d 381, 389.)
When a minor is found to have committed an offense that "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 [a] felony." (Welf. & Inst. Code, § 702.) The court is required to make an "explicit declaration" whether a wobbler offense is a felony or a misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204; In re Jacob M. (1989) 210 Cal.App.3d 1178, 1182.) This requirement is "obligatory." (In re Manzy W., supra, 14 Cal.4th at p. 1204; Cal. Rules of Court, rule 5.780(e)(5) ["the court must . . . 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"].) The purpose of this rule is to ensure the juvenile court is aware of—and actually exercises—its discretion to treat the offense as a felony or misdemeanor. (In re Manzy W., supra, 14 Cal.4th at p. 1207.) "[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." (Id. at p. 1208.)
Where the juvenile court fails to make a formal declaration, remand for the court to make that determination is not automatic. (In re Manzy W., supra, 14 Cal.4th at p. 1209.) Rather, the question for the reviewing court is whether the record shows "the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit." (Ibid.) If the court did not make an express determination but the record shows it was aware of—and exercised—its discretion, the matter need not be remanded. (Ibid.) If, on the other hand, the record does not show such an exercise of discretion, the matter must be remanded for the court to do so. (Ibid.)
Here, the juvenile court did not make an express declaration of whether A.O.'s wobbler offenses should be treated as felonies or misdemeanors. There is also nothing in the record that shows the court was aware of its discretion to make that determination. The probation officer's report, which the court read and considered, simply referred to the offenses as felonies and provided felony aggregate custody time. Neither party informed the court at any time that the offenses were wobblers. At the end of the jurisdiction hearing, the court stated, "I do find that the People have met their burden of proof in this matter, which is proof beyond a reasonable doubt. I hereby sustain and find proven true both Counts 1 and 2." The court said nothing to indicate it was aware the offenses were wobblers. On this record, we cannot conclude the court understood the offenses were wobblers or that it exercised its discretion in determining they were felonies.
DISPOSITION
The matter is remanded to the juvenile court to exercise its discretion to determine whether the two offenses are felonies or misdemeanors.
/s/_________
Jenkins, J. We concur: /s/_________
Pollak, Acting P. J. /s/_________
Ross, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------