In re E.V.
Filed 4/26/13 In re E.V. CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
In re E.V., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff
and Respondent,
v.
E.V.,
Defendant
and Appellant.
A135773
(Solano County
Super. Ct.
No. J40326)
This
is an appeal from the juvenile court’s jurisdictional order of May 2, 2012 and disposition order of June 7, 2012. Pursuant to these orders, the juvenile court
found beyond a reasonable doubt that minor E.V. committed vehicle theft in
violation of Vehicle Code section 10851, which is a “wobbler†offense, as well
as several misdemeanor offenses. The
juvenile court then continued minor as a ward, and placed him on probation with
40 days of custody credits. For reasons
set forth below, we remand this matter to the juvenile court to consider and
declare whether minor’s vehicle theft offense is a felony or misdemeanor. In all other regards, the juvenile court
orders are affirmed.
FACTUAL AND
PROCEDURAL BACKGROUND
On
July 26, 2011, a juvenile wardship petition was filed in Santa Clara
County pursuant to Welfare and Institutions Code section 602 (section 602
petition), alleging that, on August 6, 2010, minor committed the felony
offense of vehicle theft (count one) (Veh. Code, § 10851, subd. (a)), and
the misdemeanor offenses of resisting, delaying or obstructing an officer
(count two) (Pen. Code, § 148, subd. (a)(1)), possessing burglary tools
(count three) (Pen. Code, § 466), and driving without a license (count
four) (Veh. Code, § 12500, subd. (a)).
On
January 17, 2012, in a separate case stemming from an earlier section 602 petition,
the Solano County Probation Department filed a notice of hearing alleging minor
violated the terms of his probation by using marijuana. At the subsequent March 22, 2012
probation violation hearing, minor admitted violating probation by “fail[ing]
to abstain from marijuana.â€
A
contested jurisdictional hearing with respect to the allegations in the section
602 petition filed in this case began April 23, 2012, at which the
following undisputed evidence was presented.
On
August 6, 2010 at about 3:15 a.m., two California Highway Patrol officers
saw a Honda Civic at a stop sign with no front license plate. After following the Civic for a few blocks to
a cul-de-sac, the officers attempted an enforcement stop by activating their
siren and overhead lights and blocking the cul-de-sac opening. However, rather than stopping, the Civic
turned around and passed the officers traveling in the opposite direction at a
speed of about 50 miles-per-hour, exiting the cul-de-sac in a gap between the
squad car and curb. One of the officers,
Officer Tesch, who had exited the squad car, was able to get a close look at
the driver as the Civic passed by.
The
officers returned to their vehicle and turned it around to follow the Civic,
finding it a few blocks away, abandoned but still running, despite the absence
of an ignition key. The officers did not
see any fleeing suspects, but could hear a rattling sound in a nearby
yard. Within the hour, other police
officers had arrived at the scene to assist in the search. One of these officers detained minor in a
nearby back yard about 150 feet from the abandoned Civic. Shortly thereafter, Officer Tesch identified
minor as the person he saw driving the Civic in the cul-de-sac. Officer Tesch then read minor his Miranda
rights and took him to the police station.
A
subsequent search of the Civic revealed a backpack containing various burglary
tools, including screwdrivers, wire cutters, a window punch, and an oil
dipstick altered to enable it to start a vehicle without a key. When questioned, minor, who had been reported
missing by his parents earlier that day after an altercation with his father,
admitted the Civic was not his, but claimed not to recall where he got it. Minor explained that, after running away from
home, he had gone to a party, although he could not recall its location. Minor declined to answer when asked whether
he had been driving the Civic, which DMV records showed belonged to someone
named Paul Koehler. Minor was thereafter
arrested and transported to juvenile hall.
Following
the contested jurisdictional hearing, the juvenile court sustained the
allegations that minor committed each of the alleged offenses, and then ordered
the case transferred to Solano County.
The Solano County Juvenile Court accepted transfer on May 10,
2012.
At
the disposition hearing on June 7, 2012, the juvenile court continued
minor as a ward of the court, placed him on probation in his parents’ custody
unless his probation officer were to permit him to live independently, and gave
him credit for 40 days served in custody.
This timely appeal followed.
DISCUSSION
Minor
raises one issue for our review: Did the
juvenile court err by failing to exercise its discretion to determine on the
record whether his vehicle theft offense, a so-called “wobbler†offense, was a
felony or a misdemeanor? For the reasons
set forth below, we conclude there was such an error, requiring remand of this
matter to the juvenile court for correction.
We
begin with the governing legal principles.
A “wobbler†offense is one that may be deemed either a felony or
misdemeanor offense. It is generally
within the trial court’s discretion to make this determination. (In re
Manzy W. (1997) 14 Cal.4th 1199, 1204.)
However, when a minor is found to have committed a wobbler offense, the
juvenile court has a mandatory duty to declare on the record whether the
offense is a misdemeanor or felony. (
Insts. Code § 702 [hereinafter, section 702]; Cal. Rules of Court, rule
5.795(a), rule 5.780(e)(5), rule 5.778(f)(9).)
As
the California Supreme Court teaches: “[S]ection 702, in relevant part, provides: ‘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 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.
. . . [¶] The requirement is obligatory:
‘section 702 means what it says and mandates the juvenile court to declare the
offense a felony or misdemeanor.’ (
[616,] 619; [citations].†(
Failure
to discharge this mandatory duty to declare the juvenile’s offense a felony or
misdemeanor does not, however, automatically result in remand. Rather,
“speaking generally, 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 a case, when remand
would be merely redundant, failure to comply with the statute would amount to
harmless error.†(
In
this case, the following facts are relevant to whether minor is correct that
remand is necessary based on the juvenile court’s failure to discharge its
mandatory duty under section 702 to declare his commission of vehicle theft a
felony or misdemeanor. First, we note
the section 602 petition filed July 26, 2011 alleged minor had committed
“THEFT OR UNAUTHORIZED USE OF A VEHICLE, in violation of VEHICLE CODE SECTION
10851(a), a Felony.†Following a contested jurisdictional hearing,
the Santa Clara County juvenile court agreed, sustaining a finding beyond a
reasonable doubt that minor committed “Count 1, the unauthorized use of a
vehicle,†and describing “Count 1 . . . []as a felony.†The juvenile court then set minor’s maximum
time of confinement at three years and eight months, the confinement period for
a felony offense. In rendering these
decisions, the juvenile court followed the recommendation set forth in the
Santa Clara County Probation Department’s report that the court find true the
allegation that minor had committed a violation of “Vehicle Code Section
10851(a), a Felony,†as well as three misdemeanor violations. Finally, both the minute orders from the
jurisdictional hearing and the subsequent disposition report in Santa Clara
County indicated the juvenile court had found true beyond a reasonable doubt
that minor committed one felony count pursuant to Vehicle Code section 10851,
subdivision (a), and three misdemeanor counts pursuant to section 148,
subdivision (a)(1), section 466 and Vehicle Code section 12500, subdivision
(a).
Minor’s
case was then transferred to Solano County for disposition. The Solano County Probation Department’s
report stated that “the minor sustained the following charges on 5/2/12: Count
1: 10851(a) VC, Vehicle Theft, felony.â€
Further, the report recommended minor’s maximum term of confinement be
set for five years, with the petition deemed a felony as to count one and misdemeanors
as to counts two, three and four.
At
the June 7, 2012 disposition hearing, the Solano County juvenile court
noted the charges sustained against minor in Santa Clara County were “for
felony 10851, resisting arrest, petty theft, driving without a license.†After acknowledging some positive events in
minor’s life, including that he was employed and starting a family of his own,
the court indicated its belief that minor would successfully complete his term
of probation. The court then signed a disposition
order indicating count one was “deemed†a felony while the remaining counts
were misdemeanors. In doing so, however,
the court left blank a section of the pre-printed order where it was directed
to indicate “[t]he court has considered
whether Count(s) __ should be a misdemeanor or a felony, and determines that
the offense(s) is/are a misdemeanor as to Count(s) __, and a felony as to
Count(s) ___, and an infraction as to Count(s) ___.†(Italics added.)
Having
reviewed this record, we conclude it fails to establish the juvenile court was
aware of or discharged its mandatory duty pursuant to section 702 to declare
minor’s commission of the vehicle theft offense a felony or a misdemeanor. While the People correctly note that the
juvenile court expressly stated that minor had committed an offense that was a
felony in both the jurisdictional and disposition orders, these statements,
without more, are insufficient to demonstrate the court’s compliance with
section 702 because they do not establish the court was aware of its discretion
to consider minor’s offense a felony or
a misdemeanor. (See Cal. Rules of Court,
rules 5.780(e)(5), 5.778(f)(9) [requiring the court to “consider which
description applies and expressly declare on the record that it has made such
consideration,†and to “state its determination as to whether the offense is a
misdemeanor or a felonyâ€].) Nothing in
the record indicates that the court was made aware that minor’s vehicle theft
offense was a wobbler offense. Neither
defense counsel, the prosecution nor the probation department appears to have
informed the court of this fact.
Moreover, had the juvenile court actually exercised its discretion to
consider and decide whether the wobbler in this case was a felony or
misdemeanor, as the law required, we conclude the most relevant portion of the
record – the space in the disposition order where the court was to indicate
that it had in fact done so – would not have been left blank.
Under
these circumstances, we agree with minor that this matter must be remanded to
the juvenile court to properly exercise its discretion under section 702 to
declare that it has considered and determined whether the vehicle theft offense
in count one is a felony or misdemeanor.
DISPOSITION
The
disposition order is set aside, and the matter is remanded to the juvenile
court for further proceedings in compliance with section 702 and California
Rules of Court, rules 5.795(a), 5.780(e)(5), and 5.778(f)(9). In all other regards, the juvenile court’s
orders are affirmed.
_________________________
Jenkins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Pollak, J.
name="_ftn1" title="">[1] Unless otherwise stated herein, all
statutory citations are to the Penal Code.
Minor stipulated to several
facts, including that he was not licensed to drive and that the Civic had been
reported stolen by Koehler, the registered owner, on the morning of
August 6, 2010.
