Opinion
F061877 Super. Ct. No. 511315
10-18-2011
In re MICHAEL J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL J., 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 Peter W. Thompson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Dawson, Acting P.J., Kane, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Stanislaus County. Nan Cohen 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 Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
In his third appearance before the juvenile court, 14-year-old Michael J. admitted allegations in a juvenile wardship petition that he committed felony assault likely to produce great bodily injury with a gang enhancement (Pen. Code, §§ 245, subd. (a)(1) & 186.22, subd. (b)(1)), and misdemeanor disobeying a do-not-associate court order (Pen. Code, § 166, subd. (a)(4)). On appeal, Michael contends the juvenile court failed to declare whether the assault was a felony or misdemeanor as required by Welfare and Institutions Code section 702. We disagree and will affirm.
FACTS AND PROCEDURAL HISTORY
On October 16, 2009, Michael and some friends were "hanging out" in front of a deli in Modesto. As a man and woman approached the store, Michael and his friends gave them "dirty looks" and yelled, "Wuz up homie, Norte" and "What the fuck you doing here this is North 14." One of Michael's friends attempted to stab the man with a knife and others began to beat him while asking for his money. Michael threw a beer bottle at the man as he ran away. The bottle struck the back of the man's head, causing a two-inch bump.
On December 4, 2009, a first amended juvenile wardship petition filed pursuant to Welfare and Institutions Code section 602, charged Michael with seven criminal counts and two enhancements. Michael admitted two counts, assault likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and willful disobedience of a court order (Pen. Code, § 166, subd. (a)(4)), and the gang enhancement (Pen. Code, § 186.22). The remaining counts and enhancements were dismissed in the interest of justice. At the disposition hearing on June 30, 2010, the court noted that although "it was not clear who did what other than you were all there," it had sustained the violation of Penal Code section 245, subdivision (a)(1), "as a felony," and the other offense "as a misdemeanor." The court continued Michael as a ward of the court and placed him on probation. A few months later, Michael admitted violating his probation, and the court committed him to the Division of Juvenile Justice with a maximum period of confinement on the aggregated petitions of eight years ten months, with credit for time served.
DISCUSSION
On appeal, Michael argues the juvenile court violated Welfare and Institutions Code section 702 by failing to declare his assault offense a misdemeanor or a felony and the record does not demonstrate the court was aware of its discretion to treat the offense as a misdemeanor.
Welfare and Institutions Code 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 a felony." (See In re Manzy W. (1997) 14 Cal.4th 1199, 1205; Cal. Rules of Court, rule 5.778(f)(9).) Because assault in violation of Penal Code section 245, subdivision (a)(1) may be punished as either a misdemeanor or a felony in the case of an adult, the juvenile court was required to make an explicit declaration that the offense would be a felony or misdemeanor in the case of an adult. Section 702 is mandatory and requires strict compliance. (Manzy W., supra, 14 Cal.4th at p. 1204.) Neither the pleading, nor the minute order that merely reiterates the pleading, nor the setting of a felony-level period of physical confinement, substitute for a declaration by the juvenile court as to whether the offense is a misdemeanor or a felony. (Id. at p. 1208.)
Michael argues the juvenile court did not expressly find his assault offense to be a felony. It merely sustained the felony allegation in the petition. The People respond the court concluded the assault was a felony in the disposition order.
The minutes of the dispositional hearing, which the juvenile court judge signed, state: "The following counts may be considered a misdemeanor or a felony. The court finds the child's violations...." Under this text are the headings "Misdemeanor" and "Felony." An "x" is marked in the felony box next to the assault offense. An "x" is marked in the misdemeanor box next to the violation of a court order offense. Further, the corresponding transcript provides:
"THE COURT: [The] Court has previously sustained petitions for a violation of this particular case, a violation of Penal Code Section 245(a)(1) as a felony. The enhancement, gang enhancement, Penal Code Section 186.22(b)(1) and a violation of Penal Code Section 166(a)(4) as a misdemeanor." (Italics added.)
The signed written minutes and the corresponding reporter's transcript, read together, constitute an explicit declaration by the court that the assault offense is a felony. Further, the court's statements at the dispositional hearing indicate the court was aware of its discretion to sentence the assault either as a felony or a misdemeanor. (In re Robert V. (1982) 132 Cal.App.3d 815, 823.) Michael submits that the felony/misdemeanor declarations in the minutes are meaningless because a different judge made the misdemeanor findings. Not so; while the counts listed as "a" and "b" (violations of Pen. Code, §§ 12020, subd. (a)(1) & 496d, subd. (a)), were designated as misdemeanors by a different court on an earlier petition, the offenses listed as "c" and "e" (the felony assault and the misdemeanor violation of a court order), were designated as such by the same juvenile court. Accordingly, the record reflects the juvenile court was aware of and exercised its discretion in determining to treat Michael's assault offense as a felony.
DISPOSITION
The judgment is affirmed.