In re Maximiliano S.

Filed 7/24/06 In re Maximiliano S. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

John H. Ing, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed with directions.

Jonathan B. Steiner, Executive Director, California Appellate Project, and Ronnie Duberstein, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, and Tasha G. Timbadia, Deputy Attorney General, for Plaintiff and Respondent.

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The juvenile court sustained a petition alleging that appellant Maximiliano S. committed the offense of possessing a weapon on school grounds in violation of Penal Code section 626.10, subdivision (a). The court found that appellant was a person described by Welfare and Institutions Code section 602 and adjudged him to be a ward of the court. The court ordered the matter transferred to Department 245 for disposition. Appellant was already on probation in that department on another matter.

The court in Department 245 aggregated the confinement time of appellant's two sustained petitions and ordered appellant to be placed home on probation for a maximum period of three years and two months.

Appellant appeals from the orders sustaining the petition and adjudging him to be a ward of the court, contending that the court failed to make an explicit declaration that the offense was a felony rather than a misdemeanor, and that the minute order does not reflect the full amount of his predisposition custody credits. We remand this matter for a declaration as to whether appellant's offense is a felony or a misdemeanor. On remand, the clerk of the court should correct all appropriate minute orders to show a total of 22 days of predisposition credit. We affirm the juvenile court's orders in all other respects.

Facts

On January 28, 2005, Andrew Dowdell, a member of a middle school's staff, asked appellant if he had anything on him that he should not have at school. Appellant pulled a hunting knife out of his pocket. Dowdell made a Xerox copy of the knife.

Los Angeles School District Police Officer Paul Mikos saw appellant in the custody of school staff. He later read appellant his constitutional rights. Appellant agreed to speak with Officer Mikos. Appellant told him that he had forgotten that the knife was in his pocket.

At the hearing, appellant testified that he found the knife in the bathroom and planned to turn it in later that day to his counselor. He told Dowdell and Officer Mikos that he brought the knife from home and forgot about it because he was very nervous.

Discussion

1. Welfare and Institutions Code section 702

Appellant contends that the juvenile court failed to make an express finding as to whether his offense of possessing a weapon on school grounds was a misdemeanor or a felony, and that this matter must be remanded to permit the trial court to make such a declaration. We agree.[1]

Welfare and Institutions Code section 702 provides in pertinent part that when a charged offense is punishable as a felony or a misdemeanor, "the court shall declare the felony to be a misdemeanor or felony." As the California Supreme Court has explained: "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." (In re Manzy W., supra, 14 Cal.4th at p. 1204.)

California Rules of Court, rule 1493, requires that if the court has not previously considered whether an offense was a felony or a misdemeanor, the court must do so at the disposition hearing. The court must not only consider whether an offense is a felony or a misdemeanor, it "must expressly declare on the record that it has made such consideration and must state its finding as to whether the offense is a misdemeanor or a felony." (CRC, rule 1493, subd. (a)(1).)

Here, the offense of possessing a weapon on school grounds in violation of Penal Code section 626.10, subdivision (a), is a wobber, an offense which may be punished as either a felony or a misdemeanor. The offense was alleged as a felony in the petition in this matter. Appellant moved the court in Department 241 to reduce the offense to a misdemeanor. The court declined to exercise its discretion, stating: "I will leave that for the court to deal with in Department 245 because [appellant's] been on probation there and I think it would be more appropriate for that court to use its discretion in how it sees fit."

When this matter was heard in Department 245, appellant was represented by a different attorney. The court in that department stated: "The current offense, I believe, is a felony." The attorney representing appellant replied: "I don't have my file here today because I did not have this on my calendar and I do not recall the underlying offense." He added: "Since I did not handle that case, I am just going to assume it is a felony." The court replied: "It is a felony." Appellant contends that the court's statement does not contain an express declaration that the court has considered whether the offense is a felony or a misdemeanor and, in context, does not amount to an explicit declaration that the court was finding that the offense to be a felony rather than a misdemeanor. We agree.

Since the juvenile court did not make the explicit declaration required by the Rules of Court at the disposition hearing, and the record does not show that such a declaration was made at any other time, we remand this matter to the court for such a declaration.

2. Predisposition credits

Appellant contends, and respondent agrees, that the clerk's minute order must be corrected to comply with the court's oral award of predisposition credit to appellant. We agree that appellant is entitled to and was awarded 22 days of predisposition credit.

The court aggregated the confinement time for appellant's two petitions. Appellant is therefore entitled to all days in custody for either petition. (In re Ricky H. (1981) 30 Cal.3d 176, 185, fn. 7.) The court stated that appellant was to get "one day additional credit" on the most recent sustained petition. Appellant had received 21 days credit on his earlier sustained petition. Thus, appellant should have received a total of 22 days of predisposition credit. The minute order of June 28, 2005, shows a total credit time of 1 day. The oral pronouncement of the court controls in this case. If the minute order does not reflect the trial court's oral pronouncement, it may be corrected at any time to reflect that pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Hartsell (1973) 34 Cal.App.3d 8, 13.) On remand, the clerk is instructed to correct all appropriate minute orders to show that appellant was awarded 22 total days of predisposition credit.

Disposition

This matter is remanded to the juvenile court for a determination of whether appellant's offense is a felony or a misdemeanor, and an express declaration of that determination. The clerk is instructed to correct all appropriate minute orders to show that appellant was awarded 22 total days of predisposition credit. The juvenile court's orders are affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, ACTING P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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[1] Respondent contends that appellant waived this claim by failing to object in the juvenile court because generally, complaints about the manner in which a court makes or articulates its discretionary sentencing choices cannot be raised for the first time on appeal. Respondent's statement of the law is correct. (People v. Scott (1994) 9 Cal.4th 331, 351-356.) In juvenile cases, however, the court's obligation to make a determination and declaration of whether a wobbler is a felony or misdemeanor is "obligatory" and "mandatory." (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) Under such circumstances, we see no waiver.