In re D.C. CA3

Filed 3/16/23 In re D.C. CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

In re D.C., a Person Coming Under the Juvenile Court C096295 Law.

THE PEOPLE, (Super. Ct. No. JV141360)

Plaintiff and Respondent,

v.

D.C.,

Defendant and Appellant.

In July 2021, the minor D.C. and others kicked and punched a boy at a local fair. The juvenile court found true that the minor had assaulted the boy. The minor’s sole contention on appeal is that the matter must be remanded because the juvenile court erroneously failed to state on the record whether the assault was a felony or

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misdemeanor, as required by Welfare and Institutions Code section 702. The Attorney General concedes the error and agrees that remand is required. We agree with the parties, and shall remand with directions. FACTUAL AND PROCEDURAL BACKGROUND In July 2021, a petition under Welfare and Institutions Code section 602 was filed alleging the minor committed second degree felony robbery (Pen. Code, § 211; count one)1 and assault likely to produce great bodily injury (§ 245, subd. (a)(4); count two). It was further alleged that the minor personally inflicted great bodily injury on the victim. (§ 12022.7.) After holding a contested hearing in April 2022, the juvenile court dismissed count one, sustained count two, and found the section 12022.7 enhancement not true. The court did not indicate whether it found the assault charge to be a felony or a misdemeanor. At the May 2022 disposition hearing, the juvenile court adjudged the minor a ward of the court and granted him probation. During the hearing, the court stated it had received the probation report and was imposing the recommended terms. The probation officer’s report twice referred to the assault charge as a felony, but the court did not classify the offense. DISCUSSION Citing In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy W.), the minor argues the juvenile court erroneously failed to declare whether the minor’s assault offense was a misdemeanor or a felony. The Attorney General concedes the error, and we agree. The assault offense is a “wobbler”; it can be either a misdemeanor or a felony. (§ 245, subd. (a)(4) [wobbler offense punishable by imprisonment or county jail].) 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