In re G.A. CA6

Filed 3/19/15 In re G.A. CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re G.A., a Person Coming Under the H041172 Juvenile Court Law. (Santa Clara County Super. Ct. No. 312-JV39682 C&D)

THE PEOPLE,

Plaintiff and Respondent,

v.

G.A.,

Defendant and Appellant.

G.A. appeals from a dispositional order continuing him as a ward after he admitted a burglary count and the court found true a methamphetamine possession count. His sole contention on appeal is that a remand is required because the juvenile court failed to exercise its discretion to declare the burglary count to be either a felony or a misdemeanor. We conclude that, because the record contains the court’s express oral statement that it was aware of its discretion, the court’s written declaration in the dispositional order that the burglary count was a felony was sufficient to obviate a remand for an oral declaration to the same effect.

I. Background G.A. was declared a ward and placed on probation in January 2013 after he admitted that he had committed felony battery with serious bodily injury (Pen. Code, §§ 242, 243, subd. (d)). In October 2013, G.A. admitted that he had violated his probation and was continued on probation. In January 2014, a petition was filed alleging that G.A. had possessed methamphetamine (former Health & Saf. Code, § 11377, subd. (a)). In February 2014, a petition was filed alleging that G.A. had committed second degree burglary (Pen. Code, §§ 459, 460, subd. (b)). On April 10, 2014, a contested jurisdictional hearing was held on the methamphetamine allegation, and the court found it true. The court also explicitly found the methamphetamine count to be a felony. “The court is mindful of its discretion to consider whether or not this should be sustained as a misdemeanor or whether or not it’s a wobbler. Having exercised that discretion, the court will sustain the charge as a felony.” G.A. admitted the burglary allegation at the April 10, 2014 hearing and submitted a waiver form. The court accepted G.A.’s admission of the burglary count, and G.A.’s trial counsel said: “I would like to be heard as to whether the court is going to be sustaining as a felony or misdemeanor when the time comes.” The court responded: “It is charged as a felony. It could also be sustained as a misdemeanor. [G.A.’s trial counsel] has indicated he wishes to address the court on that issue, and I’ll give him the opportunity at this time.” G.A.’s trial counsel argued that the court “should sustain this petition as a misdemeanor” based on the circumstances of the offense. The prosecutor argued that there were facts supporting treating the burglary offense as a felony. The court did not make an express declaration at the jurisdictional hearing but instead deferred the issue to be resolved at disposition. It declared: “The court will take the point under submission and make formal findings on whether the count will be sustained as a felony or misdemeanor at the time of disposition which is the court’s