Filed 12/22/17 In re R.M. CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re R.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

R.M.,

Defendant and Appellant.

G054108

(Super. Ct. No. DL050577-001)

ORDER MODIFYING OPINION AND
DENYING PETITION FOR
REHEARING; NO CHANGE IN
JUDGMENT

It is ordered the opinion filed November 30, 2017, be modified as follows:
On page six, in the second full paragraph, delete the words “completely ignore” and replace them with “deemphasizes.”
On page six, in the fourth paragraph, delete the second and third sentences and replace them with the following:
“Although the court’s true finding did not necessarily mean the assault was a felony (People v. Feyrer (2010) 48 Cal.4th 426, 442-444.), the enhancement cannot be applied to a misdemeanor. If the court intended to treat the assault as a misdemeanor, it would have to strike the enhancement upon a proper statement of reasons.”
These modifications do not change the judgment.
The petition for rehearing is DENIED.



THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.

Filed 11/30/17 In re R.M. CA4/3 (unmodified opinion)



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re R.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

R.M.,

Minor and Appellant.


G054108

(Super. Ct. No. DL050577-001)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Douglas Hatchimonji, Judge. Affirmed.
Tanya Dellaca, under appointment by the Court of Appeal, for Minor and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court found true allegations R.M. (minor) committed assault with force likely to produce great bodily injury (Pen. Code, § 245, sub. (a)(4); count 1; all further statutory references are to the Penal Code unless otherwise stated), with an enhancement for inflicting great bodily injury (§ 12022.7, subd. (a)), and battery (§ 242; count 2).
The court declared the assault a felony and the battery a misdemeanor, and placed minor on supervised probation under various terms and conditions, including that minor spend 100 days in juvenile hall. The court set minor’s maximum period of confinement at seven years and two months.
Minor argues the court did not understand its discretion to declare count 1 a misdemeanor, and the matter must be remanded for a proper exercise of the juvenile court’s sentencing discretion. We conclude the court complied with Welfare and Institutions Code section 702, and properly declared the assault a felony.
Therefore, we affirm the judgment.
FACTS
1. Jurisdiction Hearing
On November 10, 2014, a resident of San Clemente hosted a birthday party for her teenage children. Minor, who was 16 years old at the time, attended the party with a soft cast on his right arm. Minor drank three shots of vodka before the party and another five to seven shots at the party. Witnesses also said he smoked marijuana, although minor denied it.
The party quickly grew to about 100 people, mostly teenagers, and they spilled out of the house and into the street. Many of the teenagers consumed alcohol and marijuana. One of the host’s neighbors, Frank P. (Frank), heard a commotion outside his home as the party started to break up, and he went outside to investigate.
Once outside, Frank saw a group of five or six screaming teenagers surrounding his neighbor, Lazlo R. (Lazlo). Frank watched as minor kicked over some trash cans and hit Lazlo in the face with his cast.
Frank yelled, “You guys need to stop and leave. The police are on their way. You need to stop.” Another male teenager, Alec B. (Alec), taunted Frank by saying, “I’m a minor, you can’t touch us.” Alec jumped on Frank’s back, wrapped his arm around Frank’s throat, and hit Frank in the head. Frank threw his arms up and attempted to get Alec off his back. He screamed, “Get him off me, get him off me.”
A neighbor pulled Alec off of Frank, but Alec started swearing and menacing Frank’s wife, who was standing outside watching. Frank tried to reason with the crowd as he moved in front of his wife to protect her, but Alec and a large group of angry people, including minor, moved toward Frank.
Someone pushed Frank to the ground, but he got back up. Frank put up his hands to protect himself, but minor and another male teenager walked up, knocked him to the ground, and repeatedly hit and kicked him until he collapsed unconscious.
Frank sustained a concussion, a fractured nose, fractured cheekbone, several loose teeth, and significant swelling to his face. He continues to suffer from migraine headaches, dizziness, and nausea caused by the attack.
A police officer interviewed minor a day after the party. Minor waived his Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights and gave a statement. Minor had bruising to the right side of his check, a black eye, and an abrasion. He admitted being intoxicated.
Minor explained that as he and a friend were leaving the party, Frank started yelling at them. Frank pushed minor and hit him in the face with a flashlight. Minor fell to the ground. When he stood up, he saw Frank surrounded by a group of people. People in the group punched Frank, but minor said he did not see anyone kick Frank.
At the jurisdiction hearing, minor testified he went to the party with Alec and another young man. Minor saw Frank when he first arrived, and Frank had a flashlight. Minor became extremely intoxicated during the party, and he explained that he acted like an “ass” because he was drunk.
Minor said the party ended when the music stopped and a bunch of “parents” told everyone to leave. Minor said everyone was cooperating with these requests. As he walked out of the party, he got into an argument with Lazlo because Lazlo accused him of knocking over some trashcans. Minor did not recall hitting Lazlo.
After his argument with Lazlo, minor saw a group of five to seven people surrounding Frank. The group yelled, “We’re minors, you can’t touch us,” and Frank responded by saying, “Get the fuck out, get the fuck out.” Minor did not recognize any of the people in the group, but he started to yell, “You cannot touch us, we’re minors” According to minor, Frank looked “like he was ready to fight.”
Minor and Frank somehow came face-to-face as the crowd moved to leave the area. Minor was pushed into Frank, and Frank pushed minor to the ground in response. Minor tried to punch Frank with his cast, but he missed. Frank hit him on the head with a flashlight. The blow caused some bleeding and minor responded by throwing another punch. This punch, too, missed and minor fell down.
Dazed, minor walked over to a friend, Riley M. (Riley), and he told Riley Frank hit him. Minor tried to hit Frank a third time, but he fell again, and chipped a tooth. Although minor was “kind of knocked . . . out” after this fall, he saw Riley push Frank over a trash can and punch him. Riley told minor to get up, and they left together. Minor denied hitting or kicking Frank.
At the conclusion of the jurisdiction hearing, the court found the allegations of the petition true and declared, “the offense in count 1 as a felony,” and “the offense in count 2 as a misdemeanor.”

2. Disposition Hearing
According to the probation report, minor had no prior criminal history, but the probation officer believed the severity of the victim’s injuries, and minor’s part in causing those injuries, indicated a “personal disregard for the laws of the community and safety of others.” In addition, minor had an established problem with substance abuse.
On the basis of these factors, and the fact the court had declared the assault to be a felony at the conclusion of the jurisdiction hearing, the probation officer recommended minor be declared a ward of the court, and that he serve 150 days in “an appropriate facility.”
At the disposition hearing, the court noted its receipt and consideration of the probation report, minor’s school records, and several letters on minor’s behalf. The court commented on the seriousness of the offenses: “They are strike offenses. The infliction of great bodily injury is an enhancement. In other words, the penalties for committing an assault of this nature is two, three, or four years in the state prison.” The court also noted that with the great bodily injury enhancement, an adult committing the same crime would “go away to the state prison for at least probably five years in the minimum . . . .”
The court listened to the arguments of counsel and took the matter under submission. When the disposition hearing resumed, the court stated, in pertinent part, “by operation of law, count 1, because of the true finding on the enhancement, count 1 is a felony . . . .” The court also declared, “count 2, a misdemeanor violation of . . . section 242, battery. That is a misdemeanor by operation of law.”
DISCUSSION
Welfare and Institutions Code section 702 states, “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.” (See Cal. Rules of Court, rule 5.780(e)(5).)
The required declaration may be made at the jurisdiction, or disposition, hearing (Cal. Rules of Court, rules 5.780(e)(5), 5.790(a)(1), 5.795(a).) Where the court fails to make an express declaration, the matter must be remanded unless the record shows the juvenile court was aware of and exercised its discretion, or where remand would be merely redundant. (In re Manzy W. (1997) 14 Cal.4th 1199, 1209 (Manzy).)
Assault by means of force likely to produce great bodily injury is a “wobbler,” and punishable as either a felony or misdemeanor. (§ 245, subd. (a)(4).) Although minor’s briefs completely ignore it, the juvenile court expressly declared the assault a felony at the conclusion of the jurisdiction hearing. The express declaration satisfied Welfare and Institution Code section 702. (Manzy, supra, 14 Cal.4th at p. 1207.)
Nevertheless, minor focuses on the court’s statement at the disposition hearing, “by operation of law, count 1, because of the true finding on the enhancement, count 1 is a felony,” and asserts the court’s statement reflects a misunderstanding of its discretion to treat count 1 as a misdemeanor. We disagree.
The juvenile court found true allegations minor inflicted great bodily injury, an enhancement under section 12022.7, subdivision (a). The court’s true finding necessarily meant the assault was a felony, because this enhancement cannot be applied to a misdemeanor. (See People v. Guzman (2000) 77 Cal.App.4th 761, 765.) If the court had intended to treat the assault as a misdemeanor, it would have had to strike the enhancement upon a proper statement of reasons.
Moreover, even assuming the court had not complied with Welfare and Institutions Code section 702, the record in this case does not require remand. (Manzy, supra, 14 Cal.4th at pp. 1209-1210.) The court’s express felony declaration was coupled with multiple statements about the severity of the crime, and the court emphasized the length of the sentence an adult in the same position would receive.

DISPOSITION
The judgment is affirmed.



THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.