In re Mario P.
Filed 4/3/07 In re Mario P. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re MARIO P., a Person Coming Under the Juvenile Court Law. | B192560 (Los Angeles County Super. Ct. No. FJ38376) |
THE PEOPLE, Plaintiff and Respondent, v. MARIO P., Defendant and Appellant. |
APPEAL from an order of the Superior Court of Los Angeles County.
Rudolph A. Diaz, Judge. Affirmed and remanded with directions.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
Mario P. appeals from the order of wardship after the juvenile court found he had inflicted corporal injury to his childs mother in violation of Penal Code section 273.5, subdivision (a). The only issue on appeal is whether the juvenile court erred in failing to declare on the record whether the offense was a misdemeanor or a felony. We remand for the juvenile court to exercise its discretion to declare the offense a misdemeanor or a felony as required by Welfare and Institutions Code section 702.
FACTUAL AND PROCEDURAL BACKGROUND
Mario P. encountered June S. at a bus stop. An argument ensued between them because June S. had left their five-month-old baby in her mothers care without Mario P.s knowledge. Mario P. grabbed June S. by the neck and pushed her to the pavement after she had grabbed his hands. June S. suffered a head contusion and bruises as a result of the fall.
In a petition filed pursuant to Welfare and Institutions Code section 602, it was alleged then 16-year-old Mario P. committed the crime of corporal injury to the parent of ones child in violation of Penal Code section 273.5, subdivision (a), a felony.
After the jurisdiction hearing, the juvenile court sustained the allegation. The disposition hearing immediately followed. At the outset of the hearing, Mario P. asked to be placed on probation without being adjudged a ward of the court pursuant to Welfare and Institutions Code section 725. The court responded: You cant. Its a felony.[1] The court declared Mario P. a ward of the court and ordered him placed home on probation, subject to numerous terms and conditions.[2]
DISCUSSION
Mario P. complains the juvenile court did not actually exercise its discretion to declare whether his offense, inflicting injury on the parent of ones child, is a felony or misdemeanor because it made no such oral pronouncement. He contends the matter must be remanded for the juvenile court to correct its error. We agree.
A violation of Penal Code section 273.5, subdivision (a) is a wobbler because it is punishable by incarceration in state prison or county jail.[3]Welfare and Institutions Code section 702 requires the juvenile court to declare a wobbler to be either a misdemeanor or a felony.[4]This statutory requirement serves two purposes: the administrative purpose of providing a record from which the maximum term of physical confinement for an offense can be determined, particularly in the event of future adjudications and the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under . . . section 702.[5]As the California Supreme Court has determined, if a juvenile court does not characterize the nature of a wobbler offense and the record as a whole fails to establish the court was aware of its discretion then an appellate court must remand the matter to the juvenile court to declare the offense to be a misdemeanor or a felony.[6] The juvenile courts declaration is mandatory; section 702 means what it says.[7]
The People argue the juvenile court complied with the statutory requirement. They maintain the court orally designated the offense a felony when it denied Mario P.s request to be granted probation without wardship under Welfare and Institutions Code section 725. However, the courts exact response, You cant. Its a felony, is ambiguous; it fails to convey whether the court knew of its discretion to treat the offense as a misdemeanor, but chose not to do so. Nor does the record as a whole establish the courts awareness of its discretion to treat the offense as a misdemeanor. During the proceedings, neither the court nor counsel referred to the misdemeanor or felony nature of the offense or to the courts exercise of discretion under Welfare and Institutions Code section 702. Accordingly, we remand the matter for the court to make an express finding as to whether the offense is a misdemeanor or a felony under Welfare and Institutions Code section 702.[8]
DISPOSITION
The matter is remanded for the juvenile court to comply with Welfare and Institutions Code section 702. In all other respects the order under review is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
JOHNSON, Acting P. J.
We concur:
WOODS, J. ZELON, J.
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[1][DEFENSE COUNSEL]: With all these things in mind, your honor, I would ask the court to, first of all, terminate C.D.P., follow the probation officers recommendation of 725. [] [THE COURT]: You cant. Its a felony.
[2]At the disposition hearing, the juvenile court did not set a maximum confinement term. However, the minute order reflects a maximum confinement term of four years for a felony violation of Penal Code section 273.5, subdivision (a). Upon remand, if the juvenile court determines the offense to be a misdemeanor, then the four-year maximum confinement term is incorrect. However, because Mario P.s disposition was home on probation, there is no requirement for the court to set a maximum confinement term. (Welf. & Inst. Code 726, subds. (a)-(c), see In re Ali A. (2006) 139 Cal.App.4th 569, 573-574; In re Danny H. (2002) 104 Cal.App.4th 92, 106.) Only when the minor is removed from the custody of his or her parent or guardian must the court specify the maximum term the minor can be held in physical confinement. (Welf. & Inst. Code 726, subd. (c), In re Ali A., supra, 139 Cal.App.4th at pp. 573-574.)
[3] Penal Code section 273.5 provides: (a) Any person who willfully inflicts upon a person who is . . . the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.
[4] See Penal Code section 17, subdivision (b); In re Manzy W. (1997) 14 Cal.4th 1199, 1201.
[5]In re Manzy W., supra, 14 Cal.4th at pages 1205, 1207.
[6]In re Manzy W., supra, 14 Cal.4th at page 1209.
[7]In re Kenneth H. (1983) 33 Cal.3d 616, 619.
[8]In re Manzy W., supra, 14 Cal.4th at pages 1208-1209.
