California Court of Appeal Jul 14, 2022 No. E077119Unpublished
Filed 7/14/22 In re B.V. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re B.V., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, E077119
Plaintiff and Respondent, (Super. Ct. No. RIJ113801)
v. OPINION
B.V.,
Defendant and Respondent.
In re B.V., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT E077119 OF PUBLIC SOCIAL SERVICES, (Super. Ct. No. SWJ2000339) Plaintiff and Respondent,
v.
J.L. et al.,
Defendants and Respondents;
B.V., Appellant.
1
APPEAL from the Superior Court of Riverside County. Mark Petersen, Judge.
Remand with directions.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Acting Assistant Attorney General, Steve Oetting and
Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
No appearance for Plaintiff and Respondent, Riverside County Department of
B.V. (Minor) took and drove her grandmother’s vehicle without permission.
About two weeks later, Minor again took and drove the vehicle without permission. She
was charged with two misdemeanors for the first incident and two felonies for the second
incident. As part of a stipulation, Minor admitted that one of the offenses from the first
incident was a misdemeanor and one of the offenses from the second incident was a
felony. The juvenile court accepted Minor’s concession and deferred entry of judgment
for one year. The juvenile court later lifted the deferral, adjudged Minor a ward of the
court, and ordered her to the maximum confinement period of three years, four months.
Minor argues, among other things, that the matter must be remanded because it is
unclear from the record whether the trial court exercised its discretion under Welfare and
2
Institutions Code section 702 (section 702) to treat Minor’s offense from the second
incident as a felony instead of a misdemeanor. We agree and remand the matter with
directions.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Minor was removed from her parents’ care and placed with her grandmother. On
July 2, 2020, Minor snuck out of her grandmother’s house around 2:00 a.m. and stole her
car. Minor was apprehended the next day while driving the vehicle. Minor’s uncle, the
car’s registered owner, wanted Minor prosecuted.
On July 16, 2020, Minor again snuck out of her house in the middle of the night
and stole her grandmother’s car. The police apprehended Minor after she drove the car
into a tree. Minor was removed from her grandmother’s care shortly afterward.
On August 7, 2020, the People filed a first amended juvenile wardship petition
(Welf. & Inst. Code, § 602), each with two allegations that Minor committed vehicle theft
(Veh. Code, § 10851, subd. (a); paragraphs 1 (felony) and 3 (misdemeanor)), and
possessed a stolen vehicle (Pen. Code, § 496d, subd. (a); paragraphs 2 (felony) and 4
(misdemeanor)). The misdemeanor allegations arose from the July 2 incident while the
felony allegations arose from the July 16 incident.
At a hearing on December 7, 2020, the parties told the juvenile court they had
reached an agreement to stipulate to probation and deferred entry of judgment on the
recommendation of the Riverside County Department of Social Services (DPSS) and the
3
Juvenile Probation Department. The parties also reported that Minor would admit the
allegations in paragraphs 1 and 3 of the petition in exchange for dismissing paragraphs 2
and 4. Minor then admitted that paragraphs 1 and 3 were true as alleged (respectively, a
felony and misdemeanor charge under Vehicle Code section 10851, subdivision (a)). The
juvenile court “accept[ed]” her admissions and found the allegations in paragraphs 1 and
3 to be true. The juvenile court advised Minor that the maximum period of confinement
would be three years and four months, deferred the entry of judgment for one year, and
placed Minor on probation.
About three months later, however, DPSS and Probation filed a joint report
explaining that Minor was caught with a cell phone at her group home in violation of the
home’s policies and had sent sexually explicit videos to unknown persons. Two weeks
later, Minor fled the group home with another resident. DPSS and Probation
recommended that the juvenile court lift the deferred entry of judgment, proceed to
disposition, and declare Minor a ward of the juvenile court and a dual status youth under
Welfare and Institutions Code section 241.1, subdivision (e).
The juvenile court revoked the deferred entry of judgment and set the matter for a
contested dispositional hearing in May 2021. At the hearing, the juvenile court lifted the
deferred entry of judgment, adjudged Minor a ward of the juvenile court and a dual status
youth, and ordered her placed in a residential treatment program. Minor timely appealed.
4
III.
DISCUSSION
Minor contends (1) her maximum term of confinement of three years and four
months should be reduced under recently-enacted Senate Bill No. 92; (2) the matter
should be remanded because the juvenile court did not expressly state that it found
paragraph 1, a “wobbler,” to be a felony as opposed to a misdemeanor in violation of
section 702; and (3) her counsel was ineffective for failing to argue that paragraph 1
should be reduced from a felony to a misdemeanor. Because we agree with Minor’s
second argument that the matter must be remanded, we need not address Minor’s
remaining arguments.
We agree with the parties that the vehicle theft offense in paragraph 1 is a wobbler
that can be a misdemeanor or a felony. (Veh. Code, § 10851, subd. (a); People v.
Gutierrez (2018) 20 Cal.App.5th 847, 853 [“[b]y its terms, section 10851 is a ‘wobbler’
offense that may be punished as either a felony or misdemeanor”].) When, as here, “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.” (Welf. & Inst. Code, § 702.) This “unambiguous”
language creates an “obligatory” requirement that “mandates the juvenile court to declare
the offense a felony or misdemeanor.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204
(Manzy W.).)
5
This requirement serves two purposes. It provides “a record from which the
maximum term of physical confinement for an offense can be determined, particularly in
the event of future adjudications.” (Manzy W., supra, 17 Cal.4th at p. 1205.) It “also
serves the purpose of ensuring that the juvenile court is aware of, and actually exercises,
its [statutory] discretion.” (Id. at p. 1207.) The juvenile court thus may make the
declaration at the contested jurisdictional hearing or at the dispositional hearing. (Cal.
Rules of Court, rules 5.780(e)(5), 5.790(a)(1), 5.795(a).)
When there is nothing in the record indicating that the juvenile court considered
whether to deem the wobbler offense a felony or misdemeanor, we will not presume the
juvenile court properly exercised its discretion under section 702. (Manzy W., supra, 14
Cal.4th at p. 1209.) “[N]either the pleading, the minute order, nor the setting of a felony-
level period of physical confinement may substitute for a declaration by the juvenile
court as to whether an offense is a misdemeanor or felony.” (Id. at p. 1208.)
Generally, “remand [is] required where the juvenile court ha[s] failed to make an
express declaration as to whether the offense was a felony or a misdemeanor” under
section 702. (In re Cesar V. (2011) 192 Cal.App.4th 989, 1000.) However, “the record
in a given case may show that the juvenile court, despite its failure to comply with the
statute, was aware of, and exercised its discretion to determine the felony or
misdemeanor nature of a wobbler. In such case, when remand would be merely
redundant, failure to comply with the statute would amount to harmless error. . . . The
key issue is whether the record as a whole establishes that the juvenile court was aware of
6
its discretion to treat the offense as a misdemeanor . . . .” (Manzy W., supra, 14 Cal.4th at
p. 1209.)
The People concede that the juvenile court did not comply with section 702. The
People argue that remand is not required, however, because the record shows that the trial
court knowingly exercised its discretion under section 702 and found paragraph 1 to be a
felony instead of a misdemeanor. We disagree.
The juvenile court never “refer[red] to its discretion to declare the offense a
misdemeanor” during the proceedings. (Manzy W., supra, 14 Cal.4th at p. 1210.) DPSS,
Probation, the People, and Minor’s counsel likewise did not “point out to the juvenile
court that it had such discretion” at any time. (Ibid.) At the December 2020 hearing, the
juvenile court only accepted Minor’s admission to the allegations in paragraph 1 and
found them true without any mention of its discretion to find that the offense was a
misdemeanor. At the May 2021 disposition hearing, no one discussed the court’s
discretion under section 702.
The People argue that, because deferred entry of judgment requires a felony
offense (Welf. & Inst. Code, § 790, subd. (a)), the trial court “implicitly found” that
paragraph 1 should be treated as a felony in order to grant Minor deferred entry of
judgment. We disagree.
“The crucial fact” here is that the juvenile court “did not state at any of the
hearings that it found [the July 16 vehicle theft] to be a felony.” (In re Kenneth H. (1983)
33 Cal.3d 616, 620.) The juvenile court simply accepted Minor’s admission that she
7
committed a felony as alleged in paragraph 1 as a term of the parties’ stipulation and
found that the allegation was true. But the juvenile court could have done the same thing
while unaware of its discretion to find that paragraph 1 was a misdemeanor. (See id. at
pp. 619-620 [juvenile court’s finding true a pleading allegation that offense is a felony
does not show the court exercised its discretion under section 702]; see also In re Nancy
C. (2005) 133 Cal.App.4th 508, 512 [“a minor’s admission of a wobbler offense charged
as a felony is not an ‘adjudication’ of the misdemeanor or felony status of that offense”].)
The juvenile court likewise could have found paragraph 1 was a felony and that deferred
entry of judgment was appropriate without knowing that it had the discretion to find the
offense to be a misdemeanor.
In short, the juvenile court’s accepting Minor’s admission that paragraph 1 was a
felony and finding that its underlying allegations were true does not mean that the court
exercised its discretion under section 702 to treat the offense as a felony instead of a
misdemeanor. (See Manzy W., supra, 14 Cal.4th at p. 1207 [remanding for finding under
section 702 even though petition deemed offense a felony and minor admitted the truth of
the charge].) “Nothing in the record establishes that the juvenile court was aware of its
discretion to sentence the offense as a misdemeanor rather than a felony.” (Id. at p.
1210.) The record shows only that the juvenile court agreed that Minor’s vehicle theft
offense was a felony, as alleged in the petition and as admitted by Minor. But there is no
indication in the record that the juvenile court considered deeming the offense a
misdemeanor or that the court was even aware it had the discretion to do so. Instead, “‘it
8
is entirely possible that the judge simply sentenced [Minor] as a felon without
considering the possibility of sentencing [her] as a misdemeanant.” (Id. at p. 1208.)
As a result, we must remand the case to the juvenile court for the court’s to
exercise its discretion to determine whether the court finds the vehicle theft offense to be
a felony or a misdemeanor and, if appropriate, recalculate the maximum term of
confinement. (Manzy W., supra, 14 Cal.4th at pp. 1210-1211.) Because remand is
mandatory, we need not address Minor’s arguments that her term of confinement must be
reduced under Senate Bill No. 92 or that her trial counsel was ineffective. Minor may
raise these issues in the trial court on remand.
IV.
DISPOSITION
The matter is remanded to the juvenile court for an express declaration under
section 702 as to whether paragraph 1 of the petition is a felony or a misdemeanor and, if
necessary, to modify the maximum possible term of confinement.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
RAMIREZ P. J.
MILLER J.
9
AI Brief
AI-generated · verify before citing
Holding. The juvenile court failed to comply with Welfare and Institutions Code section 702 by not expressly declaring whether a "wobbler" offense was a felony or a misdemeanor, necessitating a remand for the court to exercise its discretion.
Issues
Whether the juvenile court failed to comply with the mandatory requirement of Welfare and Institutions Code section 702 to declare a wobbler offense as either a felony or a misdemeanor.
Disposition. remanded
Quotations verified verbatim against the opinion
“the juvenile court did not expressly state that it found paragraph 1, a “wobbler,” to be a felony as opposed to a misdemeanor in violation of section 702”
““Nothing in the record establishes that the juvenile court was aware of its discretion to sentence the offense as a misdemeanor rather than a felony.””
“The matter is remanded to the juvenile court for an express declaration under section 702 as to whether paragraph 1 of the petition is a felony or a misdemeanor”