In re Carlos I.

Filed 7/18/07 In re Carlos I. CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Ronald P. Kreber, Judge. Affirmed in part, reversed in part and remanded.

Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.

Carlos I. appeals from a judgment rendering him a ward of the juvenile court. (Welf. & Inst. Code,  602.)^[1] He contends the court failed to declare whether one of his offenses was a misdemeanor or a felony and also miscalculated his maximum period of confinement. We find the matter must be remanded for the juvenile court to address these issues.

* * *

Carlos enticed a fellow eighth grader to his residence and assaulted her. First, he got on top of her, and then he pulled a knife and threatened to stab her if she did not have sex with him. She tried to get away, but he grabbed her and ripped off her shirt. At that point, there was a loud noise outside, and Carlos backed off, allowing her to leave.

The juvenile court found Carlos made a criminal threat against the victim and assaulted her with the intent to commit a sexual offense. It also found he personally used a deadly weapon during the attack. It did not expressly declare whether the criminal threat was a misdemeanor or a felony. However, the charging petition alleged it was a felony, and a minute order states, Court finds matters to be [] felonies with maximum term of confinement as 7 years, 8 months. At the disposition hearing, the court declared Carlos a ward of the court and placed him on probation.

I

Carlos contends the court neglected its duty to characterize his criminal threat as either a misdemeanor or a felony. The contention has merit.

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. ( 702.) Uttering a criminal threat is such an offense. (See Pen. Code,  422 [offense is punishable by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison].) Therefore, the court was required to make an explicit declaration as to whether the offense would be a misdemeanor or a felony in the case of an adult. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.)

The court did not comply with this requirement. Nevertheless, the Attorney General argues that no section 702 violation occurred because the trial court found that Carlos personally used a deadly weapon when he uttered his criminal threat. Relying on the fact this enhancement can only attach to a felony or attempted felony (Pen. Code,  12022, subd. (b)(1)), the Attorney General argues the court, as a matter of law, found [the criminal threat] to be a felony because reduction to a misdemeanor was not possible without also dismissing the enhancement.

The Attorney General fails to cite any authority in support of this novel argument. And our Supreme Court has indicated that the requirement of an explicit declaration as to whether the offense is a misdemeanor or a felony cannot be excused based on the fact the trial court made additional findings as to other allegations. (See, e.g., In re Kenneth H. (1983) 33 Cal.3d 616, 619-620.) In Kenneth H., the Supreme Court emphasized, [S]ection 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor. [Citations.] (In re Kenneth H., supra, 33 Cal.3d at p. 619.) Here, the juvenile court did not make such a declaration, and therefore it violated the terms of the statute.

Still, the Attorney General maintains a remand is not required because the record indicates the court was aware of its discretion to treat the criminal threat offense as a misdemeanor and nonetheless opted to treat it as a felony. (See In re Manzy W., supra, 14 Cal.4th at p. 1209 [the failure to explicitly characterize an offense as a misdemeanor or a felony will be deemed harmless if the record shows the court made an informed decision to treat it as a felony].) In so arguing, the Attorney General recognizes that such an informed exercise of discretion cannot be inferred from the charging petition or the minute order, both of which referred to the criminal threat as a felony. (Id. at pp. 1207-1208; In re Kenneth H., supra, 33 Cal.3d at pp. 619-620.) Nor can it be inferred from the fact that the trial court set a felony-length maximum period of confinement. (In re Manzy W., supra, 14 Cal.4th at pp. 1208-1209.) Yet, hearkening back to Carlos knife use, the Attorney General insists a remand would be redundant in this case because the courts true finding on the weapon enhancement necessarily rendered the underlying criminal threats offense a felony.

Again, we cannot agree. While the weapon enhancement can only attach to a felony, the courts true finding on the enhancement allegation does not prove it was aware that the criminal threats offense was punishable in the alternative as a felony or a misdemeanor. In fact, it could very well be that the judge found the allegation true without knowing this.

We also note that at one point during the proceedings, the prosecutor told the court that the sentencing range for the criminal threats offense was 16, 2, [and] 3, meaning 16 months, 2 years or 3 years in prison. The prosecutor did not mention that the offense is also punishable by imprisonment in the county jail not to exceed one year (Pen. Code  422), which would have alerted the court to the fact it had the discretion to treat the offense as a misdemeanor. For all these reasons, we conclude a remand for clarification is required.

II

While the court is at it, it can also take up Carlos claim that his maximum term of confinement was excessive because the court failed to apply Penal Code section 654 with respect to his sentence for making a criminal threat.^[2] The decision whether to apply that section in a given case is factually intensive (People v. Coleman (1989) 48 Cal.3d 112, 162), and because this case was decided pursuant to a bench trial, the juvenile court is in a unique position to pass on Carlos claim that his action of threatening [the victim] was done in order to facilitate his ultimate goal of assaulting her. If the court finds Carlos offenses were indeed incident to one objective, it shall apply Penal Code section 654 in setting his maximum term of confinement. (People v. Coleman, supra, 48 Cal.3d at p. 162; In re Asean D. (1993) 14 Cal.App.4th 467, 475.)

DISPOSITION

Carlos adjudications on the underlying counts and the attendant enhancement are affirmed. The disposition order is vacated and the matter is remanded for further proceedings to determine whether Carlos offense for making a criminal threat should be treated as a misdemeanor or a felony and whether Penal Code section 654 applies with respect to his maximum term of confinement.

BEDSWORTH, J.

WE CONCUR:

SILLS, P. J.

MOORE, J.

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^[1] All further statutory references are to this code unless noted otherwise.

^[2] Although Carlos did not raise this claim below, it has not been waived because the failure to apply Penal Code section 654 results in an illegal sentence that can be challenged at any time. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)