In re V.O. CA6

Filed 7/15/15 In re V.O. CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 V.O., a Person Coming Under the H041109 Juvenile Court Law. (Santa Clara County Super. Ct. No. 3-12-JV39271A)

THE PEOPLE,

Plaintiff and Respondent,

v.

V.O.,

Defendant and Appellant.

V.O. (minor) appeals from a dispositional order committing her to the county Juvenile Rehabilitation Facilities, Enhanced Ranch Program for six to eight months. She argues that the juvenile court failed to make an express finding as to whether her offense of theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)) was a felony or a misdemeanor as required under Welfare and Institutions Code section 702. The Attorney General concedes. We accept the concession and reverse and remand the dispositional order. FACTUAL AND PROCEDURAL BACKGROUND The “A” Petition On June 6, 2012, a petition was filed against minor alleging theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)), vandalism of $400 or more (Pen. Code, § 594, subds. (a), (b)(1)), and hit and run driving causing property damage (Veh. Code, §

20002, subd. (a)). A violation of Vehicle Code section 10851, subdivision (a) can either be a misdemeanor or a felony. However, the petition alleged it as a felony. Pursuant to a negotiated disposition, minor admitted all of the allegations. During the jurisdictional hearing, the court stated that the violation of Vehicle Code section 10851, subdivision (a) was being sustained as a felony. However, it did not indicate it was exercising its discretion to determine whether the offense was a felony or a misdemeanor. Minor was declared a ward of the court and placed on probation. In the minute order entered after the jurisdictional hearing, the court listed the violation of Vehicle Code section 10851, subdivision (a) under the section stating that “[t]he following allegations are admitted and found to be true,” and checked the box indicating the allegation was a felony. On the same page of the minute order, the court did not check the box indicating that it had “considered whether the above offense(s) should be felonies or misdemeanors.” On the preprinted plea form, there is a section with the heading, “the court finds.” Included in this section is a statement reading, “For setting max time: The felonies to the left would have been wobblers if filed against the minor in adult court. The Court is aware of, and actually exercises it’s [sic] wobbler discretion in this case. A check in box F is a finding of a felony. A check in box M is a finding of a misdemeanor. W&I 702.” The court did not check either of these boxes. The “E” Petition On February 25, 2014, another petition was filed against minor, alleging grand theft (Pen. Code, §§ 484, 487, subd. (c)) and resisting arrest (id., § 148, subd. (a)(1)). Following a jurisdictional hearing, the allegations were sustained and minor was declared a ward of the court. The juvenile court placed her in a six to eight month ranch commitment. Minor appealed.