Filed 4/1/22 In re A.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Samah Shouka, Judge. Affirmed and remanded with directions.

Larenda R. Delaini, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Daniel Rogers, Acting Assistant Attorney General, Arlene A. Sevidal and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On April 12, 2021, a petition under Welfare and Institutions Code section 602 alleged that minor and appellant A.M. (Minor) unlawfully possessed a firearm under Penal Code[1] section 29610 (paragraph 1), and unlawfully possessed a loaded firearm while in a vehicle under Penal Code section 25850, subdivision (c)(6) (paragraph 2).

On May 6, 2021, the juvenile court denied Minor’s motion to suppress evidence under Welfare and Institutions Code section 700.1. Thereafter, Minor admitted the truth of the allegation as to paragraph 1; the court dismissed the allegation in paragraph 2 pursuant to the prosecution’s motion. The court then continued the matter for the preparation of a probation report.

On May 11, 2021, the juvenile court adjudged Minor a ward and ordered him to serve between 32 to 64 days in juvenile hall; and awarded Minor credit for 32 days served. The court also imposed various terms and conditions of probation.

On May 19, 2021, Minor filed a timely notice of appeal; on May 28, 2021, Minor filed an amended notice of appeal.

On appeal, Minor contends that the case must be remanded for the juvenile court to determine whether the possession of a firearm offense should be a misdemeanor or felony. For the reasons set forth post, we agree with Minor and remand this case to the juvenile court to exercise its discretion to clarify whether the unlawful possession of a firearm offense, a violation of section 29610, is a felony or a misdemeanor.

B. FACTUAL HISTORY[2]

April 9, 2021, Officers Oliveras and Gooselaw conducted a traffic stop of a vehicle in Riverside. The driver pulled to the side of the street. As Officer Oliveras was preparing to exit his patrol car, a passenger, later identified as Minor, exited the rear passenger door and starting running; as Minor was running, Officer Oliveras saw Minor “reaching and manipulating his right shorts pocket.”

After a brief pursuit and despite Minor resisting their efforts, the officers were able to detain Minor; he was taken down to the ground by Officer Gooselaw and Officer Oliveras saw a “large bulge” in Minor’s pocket. During the struggle, Minor tried reaching into his pocket. After the officers had control of both of Minor’s arms Minor admitted he had a gun. When the officers searched Minor, they found a nine-millimeter pistol referred to as a “ghost” gun. Officer Oliveras described a “ghost” gun as one that could not be traced. When other officers arrived to assist, they noticed that the vehicle was no longer in the area.

DISCUSSION

Minor’s sole contention on appeal is that “the matter must be remanded because the juvenile court failed to determine whether possession of a firearm should be a misdemeanor or felony.” In response, the People argue that the juvenile court designated Minor’s offense as a felony, and even if the court failed to do so, any error is harmless. We agree with Minor and remand this case to the trial court.

When a minor unlawfully possesses a firearm, the offense is normally punished as a misdemeanor. (§ 29700, subd. (b).) However, because Minor had a prior sustained petition for assault with a deadly weapon, his offense was punishable as a misdemeanor or as a felony. (§§ 29700, subd. (a)(2), 29905, subd. (a)(24).)

Welfare and Institutions Code section 702 provides that “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.”

These requirements provided under the rules of court ensure that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702. ([i]In re Manzy W. (1997) 14 Cal.4th 1199, 1207 (Manzy W.).) Strict compliance is the rule. (Id. at p. 1208.)

Here, just as in Manzy W., “[w]hat is not at issue is what the juvenile court must do. The language of the provision is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult.” (Manzy W., supra, 14 Cal.4th at p. 1204.) However, “[w]hat is at issue is what happens if the juvenile court does not do what it must. That is, we must determine whether failure to make the mandatory express declaration requires remand of this matter for strict compliance with Welfare and Institutions Code section 702.” (Ibid.)

When there is nothing in the record to indicate that a court has considered whether to deem a wobbler offense as a felony or misdemeanor, the reviewing court will not presume that the juvenile court property exercised its discretion under Welfare and Institutions Code section 702. (Manzy W., supra, 14 Cal.4th at p. 1209.) Nevertheless, “the record in a given case may show 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. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error.” (Ibid.) “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 this case, there is nothing in the record to indicate the juvenile court was aware that Minor’s offense could be either a misdemeanor or a felony. The petition charged the offense in paragraph 1 exclusively as a felony; the detention hearing report dated April 12, 2021, designated the minor in possession of a firearm under section 20610 as a felony; and the “Memorandum to the Juvenile Court Information Memorandum Regarding Education Status and Detention” reported that a reactivated petition was filed alleging a section 29610 (minor in possession of a firearm) violation, a felony. Moreover, when Minor admitted paragraph 1 of the petition, the juvenile court asked Minor specifically about the waiver of rights he signed: “And your decision to waive these rights and admit to violating the law, in this case a violation of Penal Code section 29610, a felony, which is unlawfully possessing a firearm, your decision to admit to this violation, is that something that you’re doing voluntarily.” Thereafter, the court indicated that the maximum potential confinement time was three years. In the “Waiver of Rights—Juvenile Justice” form, Minor admitted pleading no contest to a felony. The court went on to confirm that Minor understood that the offense Minor was admitting to carried up to three years of confinement time. Furthermore, the minute order dated May 5, 2021, referred to the offense as a felony: “On Original Delinquency Petition (602) filed 04/12/2021 of PEOPLE OF THE STATE[]OF CALIF., Minor [] admits allegations in paragraph(s) 1, PC 29610, felony.”

Although the record is replete with references to the violation of section 26010 as being a felony, there is nothing in the record to indicate that the juvenile court was aware that Minor’s offense could be either a felony or a misdemeanor. Moreover, the probation report referred exclusively to the unlawful possession of a firearm by a minor as a felony allegation. The probation report never mentioned that the charge against Minor was either a felony or misdemeanor. The word “misdemeanor” does not appear anywhere in the record in reference to the minor in possession of a firearm offense.

Additionally, neither the prosecutor, probation department, defense counsel nor the court mentioned that the section 26010 offense could be deemed as a misdemeanor instead of a felony during the proceedings below. There is nothing in the record that indicates the juvenile court knew that it had the discretion to deem the offense as a misdemeanor, not as a felony. Therefore under Manzy W., we must remand the case to the juvenile court for it to exercise its discretion and declare as to whether the offense should be deemed a misdemeanor or felony.

Notwithstanding the above, the People contend that the court’s statements indicating the offense to be a felony indicates that the court was aware the offense was a wobbler. The People state, “[w]ere [the court] truly unaware that Penal Code section 29610 was a wobbler offense, then it would merely have sustained the allegation in the petition—sustaining the allegation as a ‘felony’ would be duplicative in that instance.” We disagree. The juvenile court recited the charge as made in the petition, and referred to by the probation department. The statement by the court gave no indication as to whether the court was aware of the fact the offense was a wobbler.

Furthermore, the People contend that even if we “were to find that the juvenile court failed to comply with the statute, the error is harmless and remand would be ‘redundant’ given the juvenile court’s clear expression of its intent.’ ” In support, the People discuss the reasons why the court would have found defendant’s offense to be a felony: the court was concerned that Minor would revert to committing violent offenses without the threat of additional confinement and “the court would want to preserve its options and maintain as much leverage over appellant as it could in order to promote his ongoing rehabilitation.” As discussed in detail ante, the Supreme Court in Manzy W. stated that a remand is redundant and noncompliance with Penal Code section 702 constitutes harmless error when the record demonstrates that the court was aware of such discretion and properly exercised it. (Manzy W., supra, 14 Cal.4th at p. 1209.) We already discussed that nothing in the record indicates the juvenile court was aware it had discretion to declare Minor’s offense as a felony or misdemeanor. Therefore, we cannot fairly conclude that it would be a merely redundant exercise, in the face of this record, to send this matter back to the lower court to make a finding under Welfare and Institutions Code section 702. (See Manzy W., at p. 1211.)

In sum, notwithstanding the gravity of Minor’s circumstances, the juvenile court retained discretion under section 702 to declare whether the offense of unlawful possession of a firearm was a misdemeanor or felony. Nothing in the appellate record indicates the juvenile court was aware of its discretion to declare that violation a misdemeanor, or that the court exercised that discretion. Hence, out of an abundance of caution, we remand this case to the juvenile court so that it may comply with Manzy W.’s requirement of an “explicit declaration by the juvenile court whether [the] offense would be a felony or misdemeanor in the case of an adult.” (Manzy W., supra, 14 Cal.4th at p. 1204.)

DISPOSITION

The matter is remanded to the juvenile court with directions to clarify whether the unlawful possession of a firearm offense, a violation of Penal Code section 29610, is a felony or a misdemeanor, and to adjust the disposition if necessary. The juvenile court’s orders are otherwise affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

CODRINGTON

J.

[1] All further statutory references will be to the Penal Code unless otherwise specified.

[2] The factual history is taken from the evidence presented at the motion to suppress, which served as the factual basis for Minor’s admission.