Opinion
C081151
02-09-2017
In re J.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.M., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV137256)
The now 16-year-old minor, J.M., appeals the order of the superior court declaring him to be a ward of the juvenile court under Welfare and Institutions Code section 602. His sole contention on appeal is that the matter must be remanded because the juvenile court failed to declare whether the sustained offense, vehicle theft in violation of Vehicle Code section 10851, subdivision (a), was a felony or misdemeanor. We shall remand for clarification of the amount of time the minor was ordered to perform in the juvenile work project and otherwise affirm the judgment.
PROCEDURAL BACKGROUND
We do not recite the facts underlying the minor's offenses as they are not pertinent to the resolution of the issue on appeal. Instead, we set forth the relevant procedural background.
On September 17, 2015, the Sacramento County District Attorney filed a subsequent juvenile wardship petition alleging, inter alia, that the minor had committed the following offenses: count one, felony taking or driving a motor vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)); count two, misdemeanor hit-and-run with property damage (Veh. Code, § 20002, subd. (a)); and count three, misdemeanor driving without a valid driver's license (Veh. Code, § 12500, subd. (a)). At the time the petition was filed, the minor was already on Welfare and Institutions Code section 725, subdivision (a) probation based on his admissions on August 19, 2015, that he had violated Penal Code section 417, subdivision (a)(1) (brandishing a deadly weapon, a misdemeanor) and Penal Code section 148.9, subdivision (a) (providing false identification to a peace officer, a misdemeanor).
A contested jurisdictional hearing on the subsequent petition commenced on October 30, 2015. On November 4, 2015, the juvenile court sustained the entire petition beyond a reasonable doubt. The dispositional hearing immediately followed. At that time, the following exchange took place:
"MR. RICHARDSON [(public defender)]: I'm sorry, Your Honor, to interrupt. Obviously I had argued for the Court to not sustain this at all but it may not be the best timing but I would ask that the Court [Penal Code section] 17[, subdivision] (b) the [Vehicle Code section] 10851 charge in light he obviously had the prior on a case that has now been adjudged a ward on as well but this wasn't stealing a car, actually breaking into it and hot wiring or using an actual auto theft tool. It was using the actual keys that seem to have been provided in one way from the owner's daughter.
"THE COURT: Okay.
"MR. RICHARDSON: So I think it's a little less severe [Vehicle Code section] 10851.
"THE COURT: I'll deny that motion today. I don't think—it's appropriate based on everything I've heard. It might be appropriate down the road and/or a [Welfare and Institutions Code section] 782 might be appropriate depending on how he does over the next year but today I'll deny it without prejudice."
The juvenile court adjudged the minor a ward of the court, placed him on juvenile probation, and committed him to the custody and care of his parents. The minor was also ordered to complete 16 days of juvenile work project and pay a restitution fine. The juvenile court also ordered the minor to provide a DNA sample because "[t]his is a felony."
There is a conflict in the record which the juvenile court needs to clarify. The reporter's transcript indicates the court ordered the minor to do "16 hours juvenile work project." (Italics added.) The clerk's transcript reflects "16 days in the Juvenile Work Project program." (Italics added.) The opening brief recites "16 hours" while the respondent's brief states "16 days." The subsequent probation report (from Dec. 2015 after the minor reoffended) recommends the addition of "[four] days" to the previously imposed "16 days" of work project. We will remand to the juvenile court for it to clarify this issue. --------
DISCUSSION
The minor contends the case must be remanded because the juvenile court did not declare whether the sustained offense of vehicle theft in violation of Vehicle Code section 10851, subdivision (a) was a felony or misdemeanor and the record does not indicate that the court was aware of, and exercised, its discretion. We disagree.
Vehicle Code section 10851, subdivision (a) is a "wobbler" offense which can, in the case of an adult, be punished either as a felony or a misdemeanor. Under Welfare and Institutions Code section 702, "[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." This requirement "serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702." (In re Manzy W. (1997) 14 Cal.4th 1199, 1207 (Manzy W.).) The minor contends the juvenile court did not make such an express finding.
"[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." (Manzy W., supra, 14 Cal.4th at p. 1208.) Further, when the juvenile court violates its duty under Welfare and Institutions Code section 702, it is inappropriate to apply the presumption of Evidence Code section 664 "that the juvenile court performed its official duty." (Manzy W., at p. 1209.) However, a failure to make the formal declaration under Welfare and Institutions Code section 702 does not require " 'automatic' " remand. (Manzy W., at p. 1209.) If the record shows "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[,] . . . remand would be merely redundant [and] failure to comply with the statute would amount to harmless error. . . . 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." (Ibid.)
Here, it is clear from the record that the juvenile court knew the vehicle theft count was a wobbler and knew it had the discretion to treat the offense as a misdemeanor. (Manzy Z., supra, 14 Cal.4th at p. 1209.) It had just considered and denied the minor's request to reduce the offense to a misdemeanor in connection with his Penal Code section 17, subdivision (b) motion and concluded that it was "not appropriate." It would, therefore, be redundant to remand the matter for the juvenile court to repeat its determination that it had decided to declare the offense a felony in express connection with Welfare and Institutions Code section 702. (Manzy Z., at p. 1209.)
The minor asserts that there is some difference between the discretion the court has to reduce a wobbler to a misdemeanor under Penal Code section 17, subdivision (b) and the discretion the court has to treat a wobbler as a misdemeanor offense under Welfare and Institutions Code section 702. (But Welfare and Institutions Code section 702 does not provide for any additional, special, or different exercise of judicial discretion. It simply provides that the court must declare the offense to be a felony or misdemeanor. The juvenile court did so here.
Since the record indicates the juvenile court was aware of its discretion to treat the Vehicle Code section 10851, subdivision (a) vehicle theft as a misdemeanor, and decided to treat the offense as a felony, remand on this issue is not required.
DISPOSITION
The matter is remanded for clarification of the amount of time the minor was ordered to perform in the juvenile work project. The jurisdictional and dispositional orders are otherwise affirmed.
BUTZ, Acting P. J. We concur: DUARTE, J. RENNER, J.