Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Super.Ct.No. RIJ111506
Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner-Sobeck, Supervising Deputy Attorney General, and Deana L. Bohenek, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant and appellant Raymond R., a minor, appeals from a juvenile court judgment finding he made a terrorist threat in violation of Penal Code section 422 and committed the offense for the benefit, at the direction of, and in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1). He claims there is insufficient evidence to support the judgment. Defendant also argues his case must be remanded because the juvenile court did not (1) declare the section 422 offense either a felony or a misdemeanor as required by Welfare and Institutions Code section 702; and (2) did not establish a maximum period of confinement as required by Welfare and Institutions Code section 726, subdivision (c).
All further statutory references will be to the Penal Code unless otherwise indicated.
Factual and Procedural Background
On February 6, 2006, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging defendant made a terrorist threat against two separate victims, Ricky B. and Aaron J., and made the threat for the benefit of a criminal street gang. Ricky B. and Aaron J. live in an apartment with Dianne Bradford (Bradford), who is Ricky’s aunt and Aaron’s mother. Bradford considers both boys to be her children. At a jurisdictional hearing held March 14, 2006, the court heard testimony from Bradford and Ricky, who was an 18-year-old victim at the time. However, Bradford testified her son Aaron, a minor, was too afraid to appear in court. The court also heard testimony from an arresting officer and a gang expert.
Ricky testified that on the afternoon of February 5, 2006, he was talking on a cordless telephone and sitting outside on the front steps of his apartment building with his cousin Aaron. Two Mexican boys walking together approached them. According to Ricky, one of the boys who approached was wearing a black hooded jacket (a “black hoodie”) with the hood over his head, and the other one was baldheaded and was wearing glasses. Defendant was later identified as the boy wearing the black hoodie, and the baldheaded boy was later identified as Angel Barraza (Barraza). Ricky testified defendant and Barraza stopped in front of him and Aaron, and Barraza started “gangbanging” by flashing hand gestures to make gang signs, stating his affiliation with the street gang known as “Eastside Riva,” asking “where you from,” and stating “[t]his is my neighborhood . . . you better know where you at.” Barraza also put his hand in his pocket like he was grabbing a gun, and told Ricky to “come over here.” While this exchange was occurring, Ricky testified defendant was “just standing there” relatively close to Barraza. Defendant and Barraza then walked away together. Ricky testified he was “scared” and “was gonna run” if something happened. He had not seen either of these individuals before.
While the boys were walking away, Ricky and Aaron went up the stairs to their apartment to tell Bradford what had happened. At that time, Bradford was on her way outside to ask the boys if they had the cordless telephone. Although she stated she did not see the two Mexican boys arrive, Bradford did testify she saw them standing together at the bottom of the stairs near some cars when she was on the way out of her apartment to find her telephone. However, contrary to Ricky’s testimony that defendant just stood there, Bradford testified she heard him yelling “Eastside Riva” and saw him making a gang sign. Her testimony also conflicted with Ricky’s in that she said defendant was not wearing the black hood over his head at this time. Corroborating Ricky’s testimony, she also stated she saw Barraza reaching into his pocket with his right hand “like he was going to get his gun or something out.” Although not discrediting all of her testimony in the case, the trial court found unbelievable Bradford’s testimony she actually saw and heard the whole incident from her apartment. Noting inconsistencies in the testimony and recognizing Bradford was there “on a mission to support her kids,” the trial court indicated it agreed with the defense’s concern that Bradford was “merely trying to help the case because her son [was] not [t]here to testify.”
Bradford, Ricky, and Aaron did not call the police immediately after the incident. However, about two hours later, Ricky and Aaron told Bradford the boy wearing the black hoodie came “back around the corner.” Bradford then told the boys to telephone the police, and she got in her car by herself and followed defendant, who was riding a dirt bike and wearing the black hoodie with the hood over his head, toward a nearby park. Bradford was able to point defendant out when police arrived and was also able to identify him in the courtroom. After Bradford pointed defendant out to police, Ricky joined her in the car and was able to identify and help police locate Barraza who was also in or near the park. After they were in custody at the scene, Bradford and Ricky both identified defendant and Barraza to the police. Although Ricky recalled speaking with a police officer that day and pointing out two people, he was unable to identify defendant in the courtroom.
A police officer and detective from the gang unit (gang expert) testified the gang known as Eastside Riva has about 500 documented members, and gang members “believe that they can come and go and do what they want to within their area as they please without fear of prosecution. . . .” Primary activities of Eastside Riva are “violent assaults [including “numerous shootings”], methamphetamine sales, and thefts.” The gang expert identified Barraza as an admitted member of the Eastside Riva gang and indicated Barraza had a criminal history as a gang member.
The gang expert also reviewed the available reports in this case and gave an opinion about defendant’s role in the charged offenses. He explained there are different levels of participation within gangs, ranging from “soldiers” who want to become gang members and have to “put in work” in order to “move up” or “rise in the ranks,” to “shot callers,” who are older gang members, and then to others who are actually in charge. He said “gangs survive on fear,” and members gain respect and status within the gang by committing violent crimes. Fear is used to make witnesses and victims “very reluctant to come forward” so gang members can “continue to commit their criminal activity” without being held responsible for their actions in court. According to the expert, gang members often commit crimes together “because they want a witness to go back to the gang” so the witness can say “you shoulda seen what this guy did.” In his opinion, the purpose of the incident in this case was to spread the message that Eastside Riva is “a fierce and intimidating gang,” thereby promoting and gaining respect for gang members.
Based on the testimony, the trial court found true the allegation that defendant made a terrorist threat against Ricky in violation of section 422 and that the threat was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). Because Aaron did not testify, the court found the identical charges made against defendant as to Aaron, as the other victim, were not true.
In its decision on the record, the trial court stated as follows: “I just want to say factually for the record, I don’t believe this minor actually did anything. I think Ricky’s testimony about that is true. It rings true to me. He’s basically standing together supporting the activity. [¶] [A]lthough it was clear to me he was mitigating and trying to mitigate his involvement, they are standing together, they are both obviously using the power of two to intimidate. So I don’t think I need him to have said anything. I think it’s quite enough that he is there. He doesn’t back away. He doesn’t turn away. He doesn’t distance himself from it. [¶ ] . . . [¶] I’m not making any finding about whether there was or was not a gun. I don’t think it matters. They are pretending a gun is enough for the allegation. The boys believed they were at risk of being shot. Whether they had a gun or not becomes immaterial to the 422. [¶] . . . Ricky’s testimony is quite enough to convince me that this -- this boy is the right boy. [¶] He was involved with Barraza. He was there to intimidate. He’s only 15, so I think he’s too new to, you know, to be as assertive as the other guy who is much older. But he was there for that purpose, and he accomplished that purpose.” The court adjudged appellant a ward of the court and placed him in the care, custody, and control of the Department of Probation. In addition, the court ordered probation and placement in a suitable foster or group home.
Discussion
1. Sufficiency of the Evidence.
Defendant argues the trial court’s true findings should be reversed because there is insufficient evidence to: (1) support the theory he is liable as an aider and abettor for Barraza’s actions and words; (2) establish Barraza’s words and actions actually constituted a threat within the meaning of section 422; (3) show Ricky suffered sustained fear as a result of the incident as required by section 422; and (4) prove his participation in the incident benefited a criminal street gang under section 186.22, subdivision (b)(1).
“The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials.” (In re Jose R. (1982) 137 Cal.App.3d 269, 275.) In considering the sufficiency of the evidence, “[a]n appellate court must review the whole record in the light most favorable to the judgment in order to determine whether it discloses substantial evidence that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136.) “We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence.” (In re Jose, supra, 137 Cal.App.3d at p. 275.) In addition, “we must make all reasonable inferences that support the finding of the juvenile court.” (Ibid.) “The testimony of just one witness is enough to sustain a conviction, so long as that testimony is not inherently incredible.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) “The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witness’s testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment.” (Ibid.)
“In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat-which may be ‘made verbally, in writing, or by means of an electronic communication device’ was ‘on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances. [Citation.]” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
a. Aiding and Abetting a Terrorist Threat.
Defendant argues the trial court’s finding of guilt under section 422 is based on the theory he aided and abetted Barraza, but the evidence merely shows he was present at the scene which is insufficient to support a finding under this theory. To support the argument, defendant cites Ricky’s testimony stating defendant “was just standing there” and “didn’t say nothing.”
“[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.) When, as here, a specific intent crime is alleged, “the aider and abettor must share the specific intent of the perpetrator.” (Ibid.) An aider and abettor shares the specific intent of the perpetrator “when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” (Id. at p. 560.) As defendant contends, factors other than mere presence at the scene of a crime must be shown to support an aiding and abetting theory of liability. (People v. Campbell (1994) 25 Cal.App.4th 402, 409-410.) Other factors which may be considered to determine whether a defendant shared the perpetrator’s specific intent include “companionship and conduct before and after the offense.” (Ibid.)
Here, contrary to defendant’s argument, the evidence shows more than mere presence at the scene. Defendant was not at the scene by mere chance. Ricky testified defendant and Barraza were walking together when they arrived. They stood together while Barraza spoke in a threatening manner and made threatening hand gestures at Ricky and Aaron. Defendant and Barraza also walked together when they left the scene. As the trial court noted, defendant did nothing whatsoever to distance himself from what was taking place, and by all appearances, both were “using the power of two to intimidate.” Ricky’s testimony was also supported by the gang expert’s opinion indicating defendant’s role in the crime was essentially that of a “soldier” putting in work to gain acceptance within the gang by acting as a witness.
In sum, based on the evidence, a trier of fact could reasonably infer defendant was not simply an innocent, passive and unwilling participant but was aware of Barraza’s unlawful purpose, intended to encourage it, and shared Barraza’s specific intent to threaten and intimidate Ricky and Aaron. In other words, there is substantial evidence in the record to support the trial court’s apparent finding defendant aided and abetted Barraza.
b. Actual Threat to Commit a Crime Involving Death or Great Bodily Injury.
Defendant argues the evidence indicates Barraza’s actions and words were too ambiguous to constitute a threat within the meaning of section 422. He claims making gang signs, saying “where you from,” “Eastside Rivas” and “come over here” are not threats. According to defendant, these words and actions are not threats within the meaning of section 422, because they do not express intent to commit a crime resulting in death or great bodily injury. Defendant also contends the evidence is insufficient because the record lacks testimony indicating whether Ricky understood Barraza’s statements to be a threat.
Threats are judged in their context and not solely on the specific words that were spoken. “[A]ll of the circumstances can and should be considered in determining whether a terrorist threat has been made.” (People v. Solis (2001) 90 Cal.App.4th 1002, 1014.) “A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication’s meaning. [Citation.]” (In re George T. (2004) 33 Cal.4th 620, 635.) Although nonverbal conduct alone is insufficient, a combination of words and gestures may constitute a terrorist threat under section 422. (People v. Franz (2001) 88 Cal.App.4th 1426, 1442-1446.) In Franz, for example, the combination of a “shushing” sound and a throat slashing gesture made to witnesses by the defendant while police were present to investigate a report of domestic violence was found sufficient to constitute a threat under section 422 to inflict great bodily injury or death on witnesses if they talked to the police. (Ibid.)
Along with his testimony that Barraza was making gang signs, saying “where you from,” “Eastside Rivas” and “come over here,” Ricky also testified Barraza said “[t]his is my neighborhood . . . you better know where you at.” Most tellingly, however, Ricky testified Barraza was putting his hand in his pocket like he was “grabbing a gun or something.” Although Ricky said he did not actually see a gun, he said it appeared Barraza had something in his pocket that he was grabbing as if it were a gun, and he assumed it was a gun. Thus, Ricky clearly indicated in his testimony he understood Barraza’s words and actions to be a threat, and we discern no ambiguity in that threat. Ricky’s testimony was also supported by the gang expert’s opinion about the violent nature of gangs and their proclivity for threatening and intimidating others who might challenge their ability to continue criminal activity in their territory.
Based on this combination of evidence, a trier of fact could reasonably infer Barraza intended to threaten Ricky with great bodily injury or death if he dared to get in the way of members of the Eastside Rivas who viewed the area as their territory. As a result, we are unconvinced by defendant’s argument Barraza’s words and actions did not specifically threaten Ricky and Aaron with a crime resulting in death or great bodily injury as required by section 422.
c. State of Sustained Fear.
Defendant claims the record lacks evidence to establish Barraza’s actions and words caused Ricky to be in a state of sustained fear. Defendant believes Ricky’s testimony about his state of mind during the incident demonstrates he was really angry, incredulous, and exasperated rather than fearful. In support of this contention, defendant cites Ricky’s testimony that he “can’t believe this,” and his statement that “I’m looking, like, I’m not gonna go over there. Why would I go over there.” Although he concedes Ricky testified he was afraid during the incident, defendant argues this is not enough because the evidence indicates any fear was transitory and dissipated as soon as the incident was over. To support his argument, defendant cites testimony indicating the police were not called until about two hours after the incident, as well as other testimony he believes is enough to establish “life went on pretty much as normal” for Ricky after defendant and Barraza walked away.
For a threat to be a crime under section 422, it must cause the victim “reasonably to be in sustained fear for his or her own safety.” This requirement in section 422 “has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.” (In re Ricky T., supra, 87 Cal.App.4th at p. 1140.) There is no precise definition of or limitation on the amount of time a victim must experience fear in order to satisfy this element of section 422. However, “sustained fear” has been described as “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) In Allen, the appellate court concluded the “sustained fear” requirement in section 422 was satisfied where the defendant threatened the victim with a gun but was arrested by police only 15 minutes later. (Id. at p. 1151.) The court stated that “[f]ifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute ‘sustained’ fear for purposes of this element of section 422.” (Id. at p. 1156.) One factor which may be relevant to the issue of “sustained fear” is the victim’s knowledge of the defendant’s prior conduct. (Ibid.)
In our view, the record amply demonstrates “sustained fear” which was reasonable under the circumstances. As defendant concedes, Ricky testified he was scared and “was gonna run” if something happened. The basis for Ricky’s fear can be inferred from the record. He saw Barraza putting his hand in his pocket as if he had a gun, and Ricky assumed Barraza had a gun even though he did not actually see one. Although he testified he had never seen either defendant or Barraza before, it is obvious by his use of the term “gangbanging” to describe Barraza’s words and conduct that Ricky knew enough about gangs and gang culture to be afraid. It is also apparent he understood he was being threatened with violence if he dared to get in the way of members of the Eastside Rivas who viewed the area as their territory. In this regard, we give due deference to the trial court’s credibility determinations, which were that Ricky appeared “quite uncomfortable” and “afraid” during the hearing, and, as a result, was reluctant to testify and to identify defendant in the courtroom. Under the circumstances, a reasonable person would be fearful, and this fear would not be diminished in any way simply because it may have been accompanied by exasperation and disbelief at what was happening.
Additionally, we note Bradford testified Ricky and Aaron were both scared to testify. While Ricky decided to testify despite his fear, Bradford said Aaron was just too scared. Although the trial court found other aspects of Bradford’s testimony were not credible, the trial court did not indicate her testimony should be rejected in its entirety.
We also disagree with defendant’s argument the evidence shows an absence of fear because “life went on pretty much as normal” after defendant and Barraza walked away and because police were not called until two hours later. Ricky was not asked why the police were not called immediately. Nor was he asked how he felt immediately following the incident until police arrived about two hours later. Evidence about this time period is sparse and unclear. At one point Bradford said she allowed the boys to stay outside afterwards and at another she stated “[t]hey came up in the house” and “they didn’t go back out.” In other words, we do not know why police were not called immediately or how Ricky felt after the incident but before police were called. This, however, is not enough to render the evidence supporting the element of sustained fear insufficient. Ricky clearly found the incident serious enough to tell Bradford, his aunt, who was obviously the adult in charge of his household, what happened as soon as defendant and Barraza walked away. It could reasonably be inferred it was then Bradford’s decision not to call the police until two hours later when Ricky and Aaron saw defendant come back near their apartment on the bicycle. In addition, disbelief about the seriousness of the threat and fear of calling police would both be understandable reactions to the incident. In any event, from the evidence in the record, it also could reasonably be inferred defendant’s return to the area on the bicycle about two hours later is what eliminated any doubts there may have been about the gravity of the threat or the need to call police.
Based on the evidence and the totality of circumstances presented, we conclude Ricky reasonably experienced “sustained fear” as a result of the threat. The evidence demonstrates he was fearful at the time of the incident and was still afraid some time later when called upon to testify about the incident. As a result, we conclude there is substantial evidence in the record to satisfy the “sustained fear” requirement in section 422.
d. Gang Affiliation Enhancement.
Section 186.22, subdivision (b)(1), provides for enhanced penalties when offenses are committed “for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further and assist in any criminal conduct by gang members. . . . ” Defendant believes the trial court imposed the enhancement in his case because Bradford testified he and Barraza were both yelling “Eastside Rivas,” and because the expert then relied on Bradford’s testimony to opine that defendant’s participation in the offense benefited the gang. Because the trial court rejected this portion of Bradford’s testimony as not credible, defendant argues the enhancement is not supported by substantial evidence.
Defendant is mistaken about the trial court’s basis for the enhancement. The trial court stated as follows: “And I further find that the gang enhancement 186.22, subdivision (b), is definitely true. [¶] Throwing -- at least Barraza is throwing gang signs, yelling out [Eastside Rivas], making it clear that that’s why they are there, that they are there to intimidate. This is our neighborhood. And so I find that that allegation is true.” Thus, in finding the enhancement was appropriate, the trial court did not rely on Bradford’s testimony that defendant was also yelling Eastside Rivas, or the expert’s supporting opinion about the significance of this particular testimony. Rather, the trial court relied on other aspects of the expert’s testimony which support the ruling and assumed in its decision only Barraza was throwing gang signs and yelling Eastside Rivas. The trial court then imposed the enhancement because the evidence as a whole showed defendant was present for the specific purpose of assisting Barraza in threatening and intimidating the victims in order to promote the reputation of the gang. Accordingly, we conclude it was appropriate for the trial court to impose the enhancement.
2. Juvenile Court’s Duty to Declare a Felony or Misdemeanor.
Defendant argues his case must be remanded because the court failed to declare whether the section 422 offense was a felony or a misdemeanor pursuant to Welfare and Institutions Code section 702. Section 702 states as follows: “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.” The parties agree that a violation of section 422 can be treated either as a felony or a misdemeanor, because it is punishable “by imprisonment in the county jail not to exceed one year, or by imprisonment in state prison.” As a result, the juvenile court was required to make a declaration pursuant to Welfare and Institutions Code section 702.
Referring to the trial court’s single reference to the offense as a “felony,” respondent argues the court made the required declaration under Welfare and Institutions Code section 702, and even if it did not, remand would be futile because there are no facts to justify treating the offense as a misdemeanor. Defendant argues, however, that the juvenile court’s reference to the offense as a felony is too ambiguous and there is nothing else to indicate the trial court exercised its discretion or even acknowledged it had such discretion under Welfare and Institutions Code section 702. Defendant contends the court’s discretion might have been exercised in his favor because of his young age at the time of the offense, his lack of prior contacts with the juvenile system, and his passive participation in the crime.
Welfare and Institutions Code section 702 “requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) Although not “automatic,” remand is required for “strict compliance” with this section if the juvenile court fails to expressly make a formal declaration. (Id. at pp. 1204, 1209.) Remand is unnecessary if the record shows “that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion. . . .” (Id. at p. 1209.) “The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion . . . .” (Ibid.) We cannot substitute pleadings, minute orders, or even the imposition of a felony-term of confinement for an express declaration by the juvenile court. (Id. at p. 1208.)
Viewing the record as a whole, we are unable to determine whether the court properly exercised its discretion under Welfare and Institutions Code section 702. After hearing the testimony offered during the jurisdictional hearing, the court did state its finding as follows: “[T]he court does find that the allegations in paragraph 1, the actual charge in paragraph 1, 422, a felony , is true. . . .” (Emphasis added.) However, it appears the court was simply reciting what was in paragraph 1 of the petition without regard to its duty to exercise discretion under Welfare and Institutions Code section 702. Although the probation officer’s report refers to the offense as a felony, there is no specific recommendation which mentions Welfare and Institutions Code section 702. Neither the prosecutor nor the defense attorney directed the court’s attention to the need for making a finding under section 702. Nor do the minutes from the jurisdictional hearing indicate a Welfare and Institutions Code section 702 finding was made. A remand is therefore necessary to clarify the record.
The court also had a brief conversation with defendant’s mother on the record after making its findings on the petition. During this conversation, the court expressed concern about the path defendant was taking and stated defendant “was on his way to state prison bound [sic] because of his involvement in a gang.” Respondent argues this was another indication the court declared the offense a felony. However, read in context, the remark was really directed at the mother’s alleged failure to supervise her son. It was not in any way intended to act as a declaration under section 702.
3. Juvenile Court’s Duty to Set a Maximum Period of Confinement.
The parties agree the trial court failed to set the maximum period of confinement as required by Welfare and Institutions Code section 726, subdivision (c). Welfare and Institutions Code section 726, subdivision (c), states as follows: “If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.”
Defendant argues remand is necessary, and respondent requests we simply calculate and modify the judgment accordingly. However, we find a remand is necessary because the trial court must first exercise its discretion to declare the section 422 offense a felony or a misdemeanor before the maximum term of imprisonment can be specified.
Disposition
The matter is reversed and remanded to allow the juvenile court to clarify whether the Penal Code section 422 offense is a felony or misdemeanor pursuant to Welfare and Institutions Code section 726, subdivision (c), and to then specify the maximum term of confinement pursuant to Welfare and Institutions Code section 726. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, J., KING, J.