In re Onassis P.

Filed 3/20/07 In re Onassis P. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Onassis P. appeals from a dispositional order of probation upon his admission of felony possession of marijuana for sale (Health & Saf. Code,  11359) and felony battery causing serious bodily injury (Pen. Code,  243, subd. (d)). He contends that the trial court erred in failing to exercise its discretion to designate the battery offense as either a felony or a misdemeanor as required by Welfare and Institutions Code[1] section 702. We affirm.

I. FACTUAL BACKGROUND

In a third amended section 602 petition, defendant was charged with three feloniespossessing marijuana for sale, second degree robbery, and assault with a deadly weaponand two misdemeanor battery offenses. The charges stemmed from a series of incidents over a several-month period in which defendant engaged in criminal activity. On June 16, 2006, the district attorney moved to amend the petition to add a felony count of battery causing serious bodily injury. Defendant admitted the felony battery offense and the count charging possessing marijuana for sale. The court dismissed the remaining counts of the petition.

On July 12, 2006, the court placed defendant on probation on conditions including a one-year commitment to the Orin Allen Youth Rehabilitation Facility.

II. DISCUSSION

Defendant contends that the juvenile court failed to make the requisite finding of whether his battery offense was a felony or a misdemeanor. We disagree.

Section 702 provides in pertinent part, [i]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. (2d par.) In In re Manzy W. (1997) 14 Cal.4th 1199, 1204, our Supreme Court ruled that the obligation under section 702 is mandatory. Further, due to the possible ramifications of a felony conviction, the court ruled that a remand to the juvenile court is required unless the record shows that the court was aware of and actually exercised its discretion under section 702. (Manzy W., at pp. 1204, 1209.)

A remand to the trial court is unnecessary here. While defendants battery offense is a wobbler (Pen. Code,  243, subd. (d)), the record demonstrates not only that defendant admitted committing the felony offense of battery, but that the court made a specific finding on the charges at the dispositional hearing: The court finds that the charges for disposition are a violation of Health and Safety Code Section 11359, possession of marijuana for sale, a felony. And a violation of Penal Code Section 243(d), battery with serious bodily injury, another felony. (Italics added.) The trial courts explicit finding complied with the mandate of section 702. (In re Kenneth H. (1983) 33 Cal.3d 616, 620, fn. 6.) Moreover, in sentencing defendant, the court noted that the case was a close call for me as to a CYA^[[2]] commitment and rejected the probation departments recommendation of only a nine-month commitment, and instead ordered a one-year program. Remanding this case to the juvenile court for an additional finding would be merely a redundant exercise, in the face of this record . . . . (In re Manzy W., supra, 14 Cal.4th at p. 1211.)

III. DISPOSITION

The order is affirmed.

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RIVERA, J.

We concur:

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REARDON, Acting P. J.

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SEPULVEDA, J.

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[1] Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

[2] Formerly the California Youth Authority, now the Department of Corrections, Juvenile Justice.