In re F.M. CA6

Filed 9/7/23 In re F.M. CA6 Opinion on remand from the Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 F.M., a Person Coming Under the H048693 Juvenile Court Law. (Santa Cruz County Super. Ct. No. 19JU00191A, B, C)

THE PEOPLE,

Plaintiff and Respondent,

v.

F.M.,

Defendant and Appellant.

We decide this juvenile case regarding Welfare and Institutions Code section 702 error by applying the principles described in In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy W.) following the reversal of our judgment by the California Supreme Court. While on probation for misdemeanor assault (Pen. Code, § 242),1 the minor, F.M., admitted allegations in two separate juvenile petitions that he committed two assaults with force likely to produce great bodily injury (§ 245, subd. (a)(4)), and recklessly evaded police (Veh. Code, § 2800.2). He also admitted as a misdemeanor that he was an active participant in a criminal street gang (§ 186.22, subd. (a)). The juvenile court continued F.M. as a ward of the court pursuant to Welfare and Institutions Code section 602 and found him suitable for placement at a ranch camp.

1 Unspecified statutory references are to the Penal Code.

F.M. admitted three wobbler offenses, punishable either as misdemeanors or as felonies at the discretion of the court. It is undisputed that the juvenile court failed to declare whether the two assaults and the reckless evasion allegations were felonies or misdemeanors as required by Welfare and Institutions Code section 702 (section 702) and Manzy W. On appeal, F.M. contended that the matter must be remanded so that the juvenile court could correct this error. Citing In re G.C. (2020) 8 Cal.5th 1119 (G.C.), the Attorney General asserted that by failing to object below, F.M. forfeited his claim that the juvenile court did not comply with section 702. In the alternative, the Attorney General argued that remand was unnecessary because the record shows the juvenile court exercised its discretion and sustained the three wobbler allegations as felonies. In a unanimous opinion, this court concluded that F.M. did not forfeit his claim of error and that although the juvenile court did not expressly designate the offenses as misdemeanors or felonies, the record demonstrates that the juvenile court was aware of and exercised its discretion to treat the sustained allegations as felonies such that its failure to comply with section 702’s express declaration requirement did not require remand to the juvenile court. (People v. F.M. (In re F.M.) (July 26, 2021, H048693) [nonpub. opn.].) We affirmed the dispositional order as modified.2 The California Supreme Court reversed this court’s decision. (In re F.M. (2023) 14 Cal.5th 701 (F.M.).) Finding that the Attorney General’s reliance on G.C. was misplaced, the high court agreed with our holding that F.M. did not forfeit his right to challenge the juvenile court’s failure to comply with section 702. However, applying