NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. 81109)
Joseph M. (appellant) appeals after the juvenile court sustained one count of felony receiving stolen property in a juvenile wardship proceeding (Welf. & Inst. Code, § 602). Appellant's sole contention on appeal is that the court failed to designate the receiving stolen property offense—a "wobbler"—as either a misdemeanor or a felony. We conclude the matter must be remanded for the juvenile court to exercise its discretion and expressly declare the offense a misdemeanor or felony as required by section 702. We shall otherwise affirm the juvenile court's orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On January 13, 2011, a juvenile wardship petition was filed alleging appellant, then age 17, had committed felony receiving stolen property (Pen. Code, § 496, subd. (a)).
On August 23, 2011, following a contested jurisdiction hearing, the juvenile court sustained the petition. At the November 10, 2011 disposition hearing, the court declared appellant a ward of the court, placed him on probation in his mother's home, and, inter alia, ordered him to serve eight days in the Community Care Program.
On November 21, 2011, appellant filed a notice of appeal.
Because the underlying facts are not relevant to the issue raised on appeal, we will not recount them in any detail in this opinion. Briefly, the facts involve a friend of appellant stealing a bicycle, the friend giving the bicycle to appellant to store in his garage, and appellant subsequently selling the bicycle to another friend for $10.
Appellant contends the juvenile court improperly failed to designate the receiving stolen property offense, which is a "wobbler," as either a misdemeanor or a felony.
I. Juvenile Court Background
The petition filed in this matter alleged a "violation of section 496(a) [P]enal [C]ode, CA (felony)."
At the start of the jurisdiction hearing, the juvenile court stated that "the sole count before the court is a felony count of possession of stolen property." At the conclusion of the jurisdiction hearing, the court sustained the petition, finding that, "[b]ased on the evidence the court finds that the People have proven their case by proof beyond a reasonable doubt. In fact, the court finds that the evidence is rather overwhelming that the minor has committed the offense in count 1, a felony violation of 496(a). [¶] The court finds specifically that Joseph was not credible on the witness stand as it relates to his knowledge of the bicycle being stolen. [¶] . . . [¶] . . . So the court is convinced that the People have proven their case beyond a reasonable doubt."
The following colloquy then took place between defense counsel and the court:
"MS. MILLER [defense counsel]: Your Honor, based upon the value of the property and 17—Penal Code section 17(b), we are requesting that this be reduced to a misdemeanor.
"THE COURT: I know nothing about the minor's background. I know nothing about the case because I don't read anything. So I need more information on that. I think you could file a motion at the time of disposition for that.
"MS. MILLER: All right.
"THE COURT: And if he has no prior record, it may be appropriate. [¶] On the other hand, I found that your client was less than candid. He took an oath to tell the truth in a court of law . . . . And he chose to testify. And the court has found your client to not be credible. [¶] So if you want to file a motion under section 17, I will look at what you have. But I've made some certain findings here on the record."
Subsequently, in the detention report, the probation officer described the offense solely as a felony. In his evaluation, the probation officer described appellant and his situation, noting that he had "admitted to the offense and expressed remorse for his actions." The probation officer also noted that appellant was well-behaved at home and, although he struggled with school work, he was enrolled and completing all work. He was also gainfully employed and appeared to have no problems with his employment. He had admitted occasional marijuana use, but denied the use of alcohol or other illegal drugs. The probation officer described appellant as having "used poor judgment" when he kept a stolen bicycle at his residence and then sold it for $10. But the probation officer also stated that there were "very few risk factors" in appellant's life, other than peer influences and his use of poor judgment. He also noted that a risk assessment tool had indicated that appellant's risk to reoffend was "low."
The probation officer also reported that appellant had, some five years previously, been referred for making an annoying telephone call, a misdemeanor, and that a reprimand letter was sent to him as a consequence.
The probation officer then discussed his recommendation, explaining: "In determining an appropriate recommendation for the current matter, all factors in the Subject's life were considered. As the Subject had a prior referral in 2006 for a misdemeanor annoying telephone call, and was sent a reprimand letter as a consequence, it appeared he may have still be [sic] a good candidate for a term of informal probation. However, because the felony allegation was found true at the last Court hearing, the Subject is statutorily ineligible for a term of informal probation." The probation officer therefore recommended, inter alia, that appellant be adjudged a ward of the Court with all standard conditions of probation.
At the subsequent disposition hearing, the juvenile court stated that it had read and considered the detention report. With some minor changes to appellant's curfew and the striking of any drug or alcohol related requirements, the court then adopted the probation officer's recommendations in their entirety. Defense counsel apparently made no motion under Penal Code section 17 to reduce the offense to a misdemeanor and did not argue for such a reduction at the disposition hearing.
Finally, although the written disposition order included a preprinted section in which the court can note the counts that "may be considered a misdemeanor or a felony" and can check a box showing whether it is treating such counts as misdemeanors or felonies, this part of the order was left completely blank.
II. Legal Analysis
The offense alleged and found true in this case, receiving stolen property (Pen. Code, § 496, subd. (a)), is a "wobbler," punishable either as a felony or a misdemeanor. Under section 702, when a 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." (See also Cal. Rules of Court, rule 5.780(e)(5) ["If any offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such a consideration, and must state its determination as to whether the offense is a misdemeanor or a felony. These determinations may be deferred until the disposition hearing"].) This requirement serves the 'administrative purpose of providing a record from which the maximum term of physical confinement for an offense can be determined, particularly in the event of future adjudications," and "also 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, 1205, 1207 (Manzy W.).)
All further rule references are to the California Rules of Court.
The requirement that the court declare the offense to be a felony or a misdemeanor has been strictly enforced. It is not sufficient that the petition alleged the offense as a felony and the court found the allegation true (Manzy W., supra, 14 Cal.4th at p. 1207; In re Kenneth H. (1983) 33 Cal.3d 616, 619-620), or that the court imposed a felony length sentence. (Manzy W., at p. 1207.) Rather, only when "the record in a given case [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," can the court's failure to comply with section 702 be deemed harmless. (Id. at p. 1209.) As Manzy W. stated, 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.)
In the present case, there is no indication in the record that the juvenile court understood its obligation to exercise its discretion as to this wobbler offense or that it actually did exercise that discretion. The petition charged appellant with a felony violation of Penal Code section 496, subdivision (a). At the jurisdiction hearing, the court noted that the sole count at issue was "a felony count of possession of stolen property" and, in sustaining the petition, found beyond a reasonable doubt that appellant had "committed the offense in count 1, a felony violation of 496(a)." Thus the court merely found the count true as alleged. Although the court explained that it found the evidence overwhelming and did not find appellant credible, this only shows that it believed the charged felony offense had been proved.
In addition, neither the prosecutor nor defense counsel ever brought to the court's attention its obligation. At the jurisdiction hearing, defense counsel did ask the court to consider reducing the offense to a misdemeanor. The court responded that it knew nothing about appellant's background and that treating the offense as a misdemeanor "may be appropriate" if appellant had no prior record. It then told counsel she could file a motion under Penal Code section 17 at disposition and the court would "look at what you have." In responding this way, the court inappropriately placed the burden on counsel to file a motion. Counsel filed no such motion, but it was not her responsibility to again call the court's attention to this question at disposition. It was the court's responsibility alone to exercise its discretion. Furthermore, nothing in this interaction demonstrates that the court understood its obligation under section 702. On the contrary, the court seemed to believe that a defense motion was necessary before it would consider treating the offense as a misdemeanor.
Nor did the detention report provide any guidance to the court regarding its duty to declare the offense a misdemeanor or felony. The report described the offense solely as a felony. In fact, the probation officer wrote in his evaluation that appellant might have been "a good candidate for a term of informal probation," but "because the felony allegation was found true at the last Court hearing," appellant was "statutorily ineligible" for informal probation. This statement merely added to the impression that the offense was a felony and that the court had no discretion to find otherwise.
In light of all of the circumstances and, in particular, the court's statement that it knew nothing about appellant's background and its direction to counsel to file a motion at disposition if she wanted the court to consider treating the offense as a misdemeanor, we will not speculate and assume that the court independently considered this question and exercised its discretion. (See In re Jeffery M. (1980) 110 Cal.App.3d 983, 985 ["Nothing should be subject to surmise. To affirm these orders is to encourage sloppy performance of duty"], cited in Manzy W., supra, 14 Cal.4th at p. 1208.) We therefore cannot find the court's failure to make the required declaration harmless in this case. (See Manzy M., at p. 1209.)
We shall remand this matter to the juvenile court so that it can exercise its discretion and declare appellant's offense to be a felony or a misdemeanor. (See § 702; see also Rule 5.780(e)(5); In re Curt W. (1982) 131 Cal.App.3d 169, 186 [remanding "[t]o remove that nagging doubt that [the juvenile court] gave consideration to possible misdemeanor disposition"], cited inManzy W., supra, 14 Cal.4th at p. 1208.)
We presume that, in exercising its discretion, the court will take into account the information presented in the disposition report, including the fact that appellant had only one prior misdemeanor referral from 2006, shortly before his 13th birthday—for an annoying phone call—which resulted in a letter of reprimand. In addition, the probation officer found that appellant's behavior at home, at school, and in his employment was good, and that he was at low risk to reoffend. Finally, it is notable that the probation officer considered appellant a good candidate for informal probation, but believed he could not recommend such a disposition because of the felony nature of the offense.
The matter is remanded to the juvenile court to exercise its discretion, pursuant to section 702, and expressly declare whether the Penal Code section 496, subdivision (a), violation should be treated as a felony or misdemeanor offense, and to calculate the maximum period of confinement accordingly. In all other respects, the juvenile court's orders are affirmed.