In re Clayton I.

 

 

 

 

 

 

 

 

 

 

Filed 7/11/13  In re Clayton I. 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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 CLAYTON I., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,                           Plaintiff and Respondent,               v.   CLAYTON I.,                           Defendant and Appellant.	C071894   (Super. Ct. No. JV133773)

 

 

 

 

            The minor,
Clayton I., appeals from a dispositional
order adjudicating him a ward of the court after he admitted allegations he
made criminal threats (Pen. Code,
§ 422).  He contends on appeal that
the matter must be remanded to the juvenile court to exercise its discretion to
declare whether the offense constituted a felony or a misdemeanor.  The People agree.  We reverse and remand for the trial court to
exercise its discretion and otherwise affirm the adjudication.

Facts and Proceedings

            According to the probation
report, the 12-year-old minor became angry with his mother, grabbed two butcher
knives, and came at her, yelling “I’m going to kill you, fucking bitch.”  After the mother fought off the minor and
escaped injury, the minor ran to his school, where he tried to assault the
school principal. 

            The minor
was charged in an amended wardship
petition with three felony counts of assault with a deadly weapon, one
felony count of making criminal threats, one felony count of possessing knifes
on school grounds and one misdemeanor vandalism charge. 

            Pursuant to
negotiations, the minor ultimately admitted the allegation he “did commit a
felony, a violation of Section 422 of the Penal Code in that said minor did
willfully and unlawfully threaten to commit a
crime . . . .”  Prior
to accepting the minor’s admission, the trial court informed him that the
maximum possible period of confinement was three years.  The juvenile court then dismissed the remaining
charges, and proceeded immediately to disposition.  The minor was made a ward of the court and
placed on probation subject to (among others) being put in a suitable
placement. 

Discussion

            The parties
agree that, because the juvenile court did not declare the minor’s offense to
be either a felony or a misdemeanor, and did not demonstrate that it knew it
was required to do so, the matter must be remanded.  We agree. 


            A criminal
threat in violation of Penal Code section 422 is a “wobbler” offense, i.e., one
that, if committed by an adult, is punishable alternatively as a misdemeanor or
a felony.  (Pen. Code, § 422, subd.
(a).)  Welfare and Institutions Code
section 702 requires the juvenile court to declare whether a so-called
“wobbler” offense is a felony or a misdemeanor. 
A minor’s admission of a wobbler offense charged as a felony does not
constitute an “adjudication” of the misdemeanor or felony status of that
offense; the juvenile court’s declaration of its status must be “express.”  (In re
Manzy W. (1997) 14 Cal.4th 1199, 1201, 1208 ; see also >In re Cesar V. (2011)
192 Cal.App.4th 989, 1000.)  The
reason for this requirement of explicitness is that such a declaration
determines the minor’s maximum period of confinement and much about his or her
future.  (See Manzy W., at pp. 1208-1209.)

            Remand is
required where the juvenile court does not make the requisite express
felony/misdemeanor declaration of a wobbler offense, and nothing in the record
indicates that the juvenile court considered whether the offense was a felony
or a misdemeanor.  (In re Manzy W., supra, 14 Cal.4th at p. 1209.)  Given the stakes at issue, the presumption
under Evidence Code section 664—in a silent record case, the juvenile court is
presumed to have performed its official duty—does not apply.  (Cf.
ibid. [the Manzy court
erroneously cited this presumption as Evidence Code section 665].)

            At no point
during the hearing in this case did the juvenile court orally indicate on the
record whether the threat offense is a felony or a misdemeanor.  Nor did the court indicate it was required to
make such a determination.  Although the
minute order memorializing the jurisdictional
proceeding notes that the offense is a felony, this is not sufficient.  We agree with the parties that remand for a
felony/misdemeanor determination by the juvenile court is necessary. 



 

Disposition

            The matter
is remanded to the juvenile court for compliance with Welfare and Institutions
Code section 702 and possible recalculation of the minor’s maximum period of
confinement.  In all other respects, the
judgment is affirmed.

 

 

 

                                                                                              HULL                           ,
J.

 

 

 

We concur:

 

 

 

          RAYE                           ,
P.J.

 

 

 

          BUTZ                            ,
J.