Filed 3/16/23 In re D.C. CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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In re D.C., a Person Coming Under the Juvenile Court C096295
Law.
THE PEOPLE, (Super. Ct. No. JV141360)
Plaintiff and Respondent,
v.
D.C.,
Defendant and Appellant.
In July 2021, the minor D.C. and others kicked and punched a boy at a local fair.
The juvenile court found true that the minor had assaulted the boy. The minor’s sole
contention on appeal is that the matter must be remanded because the juvenile court
erroneously failed to state on the record whether the assault was a felony or
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misdemeanor, as required by Welfare and Institutions Code section 702. The Attorney
General concedes the error and agrees that remand is required. We agree with the parties,
and shall remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2021, a petition under Welfare and Institutions Code section 602 was filed
alleging the minor committed second degree felony robbery (Pen. Code, § 211; count
one)1 and assault likely to produce great bodily injury (§ 245, subd. (a)(4); count two). It
was further alleged that the minor personally inflicted great bodily injury on the victim.
(§ 12022.7.)
After holding a contested hearing in April 2022, the juvenile court dismissed count
one, sustained count two, and found the section 12022.7 enhancement not true. The court
did not indicate whether it found the assault charge to be a felony or a misdemeanor.
At the May 2022 disposition hearing, the juvenile court adjudged the minor a ward
of the court and granted him probation. During the hearing, the court stated it had
received the probation report and was imposing the recommended terms. The probation
officer’s report twice referred to the assault charge as a felony, but the court did not
classify the offense.
DISCUSSION
Citing In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy W.), the minor argues the
juvenile court erroneously failed to declare whether the minor’s assault offense was a
misdemeanor or a felony. The Attorney General concedes the error, and we agree.
The assault offense is a “wobbler”; it can be either a misdemeanor or a felony.
(§ 245, subd. (a)(4) [wobbler offense punishable by imprisonment or county jail].)
When, as here, “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
1 Undesignated statutory references are to the Penal Code.
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declare the offense to be a misdemeanor or felony.” (Welf. & Inst. Code, § 702.) This
“unambiguous” language creates an “obligatory” requirement that “mandates the juvenile
court to declare the offense a felony or misdemeanor.” (Manzy W., supra, 14 Cal.4th at
p. 1204.)
This requirement serves two purposes. First, it provides “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.) Second, it
“serves the purpose of ensuring that the juvenile court is aware of, and actually exercises,
its [statutory] discretion.” (Id. at p. 1207.) The juvenile court may make the declaration
at the contested jurisdictional hearing or at the dispositional hearing. (Cal. Rules of
Court, rules 5.780(e)(5), 5.790(a)(1), 5.795(a).)
Where there is nothing in the record indicating the juvenile court considered
whether to deem the wobbler offense a felony or a misdemeanor, we will not presume the
court properly exercised its discretion under Welfare and Institutions Code section 702.
(Manzy W., supra, 14 Cal.4th at p. 1209.) “[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.)
Here, the juvenile court neither stated whether the offense was a misdemeanor or a
felony, nor “refer[red] to its discretion to declare the offense a misdemeanor during the
proceedings.” (Manzy W., supra, 14 Cal.4th at p. 1210.) And neither probation nor any
counsel pointed out at any point that the court had such discretion. (Ibid.) Under the
circumstances, there is no indication in the record that the juvenile court considered
deeming the offense a misdemeanor or that the court was even aware that it had the
discretion to do so. We must remand the case to the juvenile court with directions to
exercise its discretion to classify the assault offense. (Id. at pp. 1210-1211.)
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DISPOSITION
The matter is remanded to the juvenile court with directions to declare whether
count two of the petition is a felony or a misdemeanor, in accordance with Welfare and
Institutions Code section 702.
/s/
Duarte, J.
We concur:
/s/
Robie, Acting P. J.
/s/
Earl, J.
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