In re Trevor H.
Filed 4/25/07 In re Trevor H. CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re TREVOR H., a Person Coming Under the Juvenile Court Law. | H030650 (Santa Clara County Super. Ct. No. JV31172) |
THE PEOPLE, Plaintiff and Respondent, v. TREVOR H., Defendant and Appellant. |
On September 6, 2006, a wardship petition (Welf. & Inst. Code, 602) was sustained in the juvenile court by the true finding that minor Trevor H. had violated Penal Code section 626.10, subdivision (a) (hereafter, section 626.10(a)), by bringing and possessing a knife having a blade longer than two and a half inches upon the grounds of Milpitas High School. The trial court placed the minor on supervised probation without Wardship for six months, declared the maximum term of confinement to be three years, and returned him to the custody of his parents. On appeal, the minor requests remand to the juvenile court for a declaration whether the offense was a felony or a misdemeanor and for possible recalculation of the maximum term of commitment.
DISCUSSION
On the morning of January 13, 2006, a Milpitas High School security officer located the minor in a bathroom on campus smoking a cigarette. There was a dark-colored backpack on the minors shoulder and after the security officer escorted the minor to the assistant principals office, he obtained permission from the minor to search the backpack. The security officer found a locking blade knife with a blade a little over three and a half inches. The security officer testified that the minor reacted with surprise when the knife was located. A City of Milpitas police officer arrived and questioned the minor who admitted that the knife was his.
At trial, the minor testified that he placed the knife in his backpack on the evening before the knife was found at school. The knife was for protection from gang members during a trip to the market that he was asked to make for his grandmother. When he got home, he did not take the knife out of the backpack, and he did not remember that the knife was there when he went to school the next morning.
The petition charged the minor with the felony offense of violating section 626.10(a). That offense, however, may be punished alternatively as a felony (by 16 months, two years, or three years of incarceration) or a misdemeanor (up to a years incarceration). Welfare and Institutions Code section 702 provides that in a juvenile proceeding, [i]f 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 [(a wobbler)], the court shall declare the offense to be a misdemeanor or felony.
The dispositional report prepared for the court did not indicate that the offense was a wobbler or that the juvenile court could or should declare the offense to be a misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199, 1203.) It listed the offense as a felony on the first page, but recommended the disposition be six months probation without Wardship. The maximum term of physical confinement ordered by the court, three years, was recited to the court by the clerk at sentencing. The minute orders of the jurisdictional and dispositional hearings have an x marked on the second page of the orders in front of the statement, The Court finds the following count[s] to be felony allegations: Ct 01: (F) PC626.10(a) but the orders were not signed by the judge. Nor do the reporters transcripts of the jurisdictional or dispositional hearings contain statements showing that the court exercised its discretion to declare the offense to be a misdemeanor or a felony.
The People agree that remand is necessary for the court to comply with Welfare and Institutions Code section 702 and In re Manzy W., supra,14 Cal.4th at page 1204.
DISPOSITION
The matter is remanded for proceedings in compliance with this opinion. The judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
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