In re Tony T.

Filed 9/27/07 In re Tony T. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Tony T. (appellant) appeals from jurisdictional and dispositional orders sustaining vandalism and arson allegations. He contends the juvenile court erred by failing to declare his vandalism offense a felony or misdemeanor. We conclude the matter must be remanded for the juvenile court to exercise its discretion to declare the offense a misdemeanor or felony as required by Welfare and Institutions Code section 702.[1] We affirm the juvenile courts orders in all other respects.

Factual and Procedural History

On September 25, 2004, appellant and a number of other minors were involved in vandalizing school property and setting fire to a classroom at an elementary school in San Pablo. The damage to the school structures totaled almost $100,000. Appellant admitted responsibility for some of the vandalism.

In a section 602 juvenile delinquency petition filed December 6, 2004, appellant was charged with felony arson of a structure ( 451, subd. (c); count one) and felony vandalism ( 594, subd. (b)(1); count two). Beginning on June 20, 2005, the juvenile court conducted a jurisdictional hearing at which it considered appellants petition as well as the delinquency petitions of six other minors who were allegedly involved in the school vandalism and arsonS.S., Bobby C., C.N., Lisa S., Molly S., and Kevin V. On the afternoon of the first day of the jurisdictional hearing, C.N., Lisa, and Molly each agreed to a negotiated plea. The hearing proceeded as to the remaining four minors.

Art J. testified under a grant of immunity. He claimed to have witnessed appellant knock over boxes of books, break a window, enter a classroom, knock over student desks, and flip over a teachers desk. Art also testified that he saw appellant kick a railing off of a water fountain outside the classroom. According to Art, appellant and another minor told everyone to run because the classroom had been set on fire. Art did not see who set the fire, although S.S. later admitted to Art that he threw a fireball into the classroom. An insurance adjuster testified that the damage to the water fountain railing totaled over $600. The adjuster estimated the damage to the classroom at over $95,000.

At the conclusion of the jurisdictional hearing, the juvenile court sustained the allegations as charged in count one and count two of the petition, finding that the arson and vandalism charges had been proved beyond a reasonable doubt. The court conducted a dispositional hearing on July 12, 2005, at which it declared appellant a ward of the court, removed him from the custody of his parents, and ordered him placed at the Boys Ranch for six months, with custody credit given for 19 days. The court acknowledged that appellants maximum custodial time was six years eight months.

Appellant filed a timely notice of appeal.

Discussion

Section 702 provides that 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 rules 5.780(e)(5), 5.790(a)(1), 5.795(a) (former rules 1488, 1493, 1494).) In part, the statute serves an administrative purpose, providing a record from which the maximum term of physical confinement may be determined in the event of future adjudications. (In re Manzy W. (1997) 14 Cal.4th 1199, 1205.) The statute also serves the key purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702. (Id. at p. 1207.)

By its plain terms, section 702 requires an express declaration of whether a so-called wobbler offense is a misdemeanor or felony. (In re Manzy W., supra, 14 Cal.4th at p. 1204.) [N]either the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.] (Id. at p. 1208.) It is also not enough that a petition describes an offense as a felony and the juvenile court finds the allegations of the petition to be true. (In re Kenneth H. (1983) 33 Cal.3d 616, 619-620.) When a juvenile court fails to comply with section 702, the cause may be remanded with directions to determine the character of a sustained offense. (See In re Kenneth H., supra, 33 Cal.3d at p. 620.)

Rule 5.780(e) specifies what findings a court must make at a contested jurisdictional hearing when the juvenile court determines beyond a reasonable doubt that allegations in a section 602 petition are true. Rule 5.790(a) addresses required findings to be made at a dispositional hearing. Rule 5.780(e)(5) provides in relevant part: 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 consideration and must state its determination as to whether the offense is a misdemeanor or felony.[2] Nearly identical language appears in rule 5.790(a)(1). Thus, the applicable rules impose two requirements: (1) the court must state its determination whether a wobbler is a misdemeanor or a felony, and (2) the court must expressly declare on the record that it has considered which description applies.

Here, the vandalism offense appellant was found to have committed is a wobbler punishable either as a felony or a misdemeanor. (See Pen. Code,  594, subd. (b)(1).) In the section 602 petition, the offense was charged as a felony. The offense was also described as a felony in the probation officers report and in the minute order from the jurisdictional hearing. At the jurisdictional hearing, the court stated that the offense was charged as a felony. At the dispositional hearing, the court confirmed that the maximum custodial time associated with the sustained charges was six years eight months, which is consistent with treating the vandalism offense as a felony. Without more, these facts do not satisfy the requirement that a court expressly declare whether a sustained offense is a misdemeanor or felony. (See In re Manzy W., supra, 14 Cal.4th at p. 1208; In re Kenneth H., supra, 33 Cal.3d at pp. 619-620.)

The People point out that the juvenile court signed the minute order for the jurisdictional hearing. The minute order reflects that the court sustained the petition as to count two, which is described in a handwritten notation at the bottom of the first page of the minute order as 594(b)(1) felony. In addition, at the dispositional hearing, the juvenile court referred to the charges for disposition as felony arson and felony vandalism. Both the signed minute order and the courts statement at the dispositional hearing would appear to constitute explicit statements by the court declaring the sustained vandalism offense to be a felony. Neither statement, however, fully complies with rules 5.780(e)(5) and 5.790(a)(1), which also require the court to make an express declaration on the record that it has considered whether a wobbler offense should be classified as a misdemeanor or felony. The People do not claim the record contains such a declaration, and we have found none.

We are aware that in In re Robert V. (1982) 132 Cal.App.3d 815, 823, the court held that a reference in a signed order to the adjudicated offense as a VC10851 felony fully complied with the requirements of section 702. That case does not establish, however, that it is unnecessary to comply with the requirement that a court expressly declare it has considered whether to classify a wobbler as a misdemeanor or a felony. In re Robert V. was decided before rules 5.780 and 5.790 (formerly rules 1488 and 1493) were adopted, at a time when former rules 1355 and 1372 specified what a court must do to comply with section 702. Neither former rule 1355 nor former rule 1372 contained a requirement that the court expressly declare it had considered whether the offense in question was a felony or a misdemeanor.[3] That requirement was added to former rules 1488 and 1493 as of January 1, 1998 (renumbered as rules 5.780 and 5.790 in 2007). Because In re Robert V. was decided before such a requirement was added to the applicable rules, the decision necessarily does not address whether a juvenile court errs when it fails to comply with that requirement. Under a plain reading of the rules, a court errs when, as here, it fails to expressly declare on the record that it has considered whether to classify a wobbler as a misdemeanor or felony.

We now turn to the question of whether the courts error can be considered harmless. Remand is not automatic when a juvenile court fails to comply with section 702. (In re Manzy W., supra, 14 Cal.4th at p. 1209.) [S]peaking 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 case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. (Ibid.) In Manzy W., the Supreme Court determined that the failure to comply with section 702 was not harmless where nothing in the record established the juvenile court was aware of its discretion to sentence an offense as a misdemeanor rather than a felony. (Id. at p. 1210.)

The People contend that remand is unnecessary here because the record discloses the juvenile court was aware of and exercised its discretion to find the vandalism offense a felony. As support for this contention, the People rely on statements made in closing arguments by defense counsel for two of the other minors who were tried along with appellant. One of those counsel reminded the court that even if it found that her client, S.S., committed a technical violation of section 451, subdivision (d) (felony arson of property), the court should exercise its discretion to treat the offense as a misdemeanor.[4] She urged the court to do the same with the vandalism charge. Defense counsel for another minor, Bobby C., asked the court to find that her client committed less than $400 in vandalism, which would support a misdemeanor offense under section 594, subdivision (b)(2)(A). She further argued that even if the court found a violation of section 594, subdivision (b)(1) because the vandalism damage exceeded $400, then the court should exercise its discretion to treat the wobbler as a misdemeanor pursuant to counsels request under section 17, subdivision (b).[5] The People point out that, in making its jurisdictional findings as to Bobby C., the juvenile court reduced the vandalism count to a misdemeanor violation of section 594, subdivision (b)(2), in light of its finding that the vandalism damage did not exceed $400. By contrast, with regard to the other three minorsKevin V., S.S., and appellantthe court sustained the felony vandalism counts as charged.

Contrary to the Peoples contention, the statements of counsel and the actions of the court do not demonstrate that the court was aware of and exercised its discretion to determine the felony or misdemeanor nature of the vandalism charge. While it is true that certain defense counsel discussed the courts discretion at the jurisdictional hearing, at no time did the court acknowledge it had discretion to treat any or all the charges under section 594, subdivision (b)(1) as misdemeanors instead of felonies. In the case of Bobby C., the court sustained a misdemeanor violation because it found the minor had committed the lesser included offense described in section 594, subdivision (b)(2)(A), not because it exercised its discretion to determine whether a violation of section 594, subdivision (b)(1) should be considered a misdemeanor or felony. The courts actions suggest it treated a vandalism offense as a felony if the damage was equal to or greater than $400; otherwise, the offense was a misdemeanor. These actions do not demonstrate the courts awareness of its discretion to treat a vandalism offense in which the damage was $400 or more as either a misdemeanor or a felony.

Furthermore, the juvenile court sentenced appellant to serve six months at the Boys Ranch, stating appellant could very well be out in approximately three months if he stayed out of trouble. Given the misdemeanor-length term of physical confinement, there remains a question of whether the juvenile court would have treated appellants vandalism offense as a misdemeanor if it had been aware of its discretion to do so.

Under the circumstances, we are compelled to remand the matter to the juvenile court so that it may determine the character of the vandalism offense as well as declare that it considered whether to treat the offense as a misdemeanor or felony, as required by rules 5.780 and 5.790. We do so reluctantly, cognizant of the general rule of appellate review that we presume the trial court was aware of and exercised its discretion to act, absent evidence to the contrary. (Cf. People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430.) In a case such as this one, however, the California Rules of Court appear to turn that presumption on its head, specifying that a juvenile court must expressly acknowledge its discretion by declaring that it considered whether to treat a wobbler as either a misdemeanor or a felony. (See rules 5.778(f)(9), 5.780(e)(5), 5.790(a)(1), 5.795(a).) We have no choice but to conclude the juvenile court erred by failing to make the required declaration. We suspect the court was fully aware of its discretion to treat appellants vandalism offense as a misdemeanor, but the record is too equivocal for us to reach such a conclusion.

Disposition

The matter is remanded to the juvenile court to declare whether appellants vandalism offense ( 594, subd. (b)(1)) is a misdemeanor or felony, as required by section 702 and rules 5.780(e)(5) and 5.790(a)(1). If, upon remand, the court declares the offense to be a misdemeanor, then it shall recalculate the maximum term of confinement under section 726, subdivision (c). In all other respects, the jurisdictional and dispositional orders are affirmed.

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McGuiness, P.J.

We concur:

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Siggins, J.

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Horner, J.*

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[1] Unless otherwise specified, all statutory references are to the Welfare and Institutions Code and all rule references are to the California Rules of Court.

[2] The quoted sentence is found in two other rules that address what the court must do when it declares a wobbler offense to be a misdemeanor or felony. (See rules 5.778(f)(9), 5.795(a).)

[3] Former rule 1355(f) provided that after a contested jurisdiction hearing, the juvenile court was required to make certain findings, noted in the minutes of the court, including the following: (5) If the minor is found to be a person described in section 602, the degree of the offense and whether the offense would be a misdemeanor or felony had the offense been committed by an adult. These determinations may be deferred until the disposition hearing. Former rule 1372 contained no reference to any such findings.

[4] Section 451, subdivision (d) is not a wobbler, and the court would have had no discretion to treat a violation of that statute as a misdemeanor. We assume counsel was urging the court to characterize the offense as misdemeanor causing a fire of property, a violation of section 452, subdivision (d).

[5] Section 17, subdivision (b) provides in relevant part that a crime that may be punished as a felony or misdemeanor at the discretion of the court is considered a misdemeanor for all purposes under specified conditions, including when the court designates the offense to be a misdemeanor following commitment of the defendant to the Youth Authority. ( 17, subd. (b)(2).)

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.