In re K.A. CA4/1 ( 2022 )

Filed 10/3/22 In re K.A. CA4/1
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re K.A., a Person Coming Under
the Juvenile Court Law.
D079992
THE PEOPLE,
Plaintiff and Respondent,
(Super. Ct. No. J243932)
v.
K.A.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard R. Monroy, Judge. Affirmed in part; reversed in part, with
instructions.
Christine M. Aros, 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, Assistant Attorney General, Eric A.
Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and
Respondent.
A juvenile wardship petition filed under Welfare and Institutions Code
section 6021 alleged defendant K.A. on or about March 30, 2021 committed a
felony hit and run injury (Veh. Code, § 20001, subd. (a)—count 1) and a
misdemeanor hit and run resulting in property damage (id., § 20002, subd.
(a)—count 2). The juvenile court made a true finding on both counts and
sustained the petition. At disposition, the court adjudged K.A. a ward of the
court, placed K.A. on formal probation, but allowed him to continue residing
at home.
On appeal, K.A. contends the juvenile court erred (1) in failing to
expressly declare whether it was treating count 1 as a felony or misdemeanor
because a violation of and punishment under Vehicle Code section 20001 is a
so-called “wobbler” if committed by an adult and (2) in stating during the
adjudication/jurisdiction hearing the “maximum term of confinement” K.A.
faced for his violation of counts 1 and 2.
We agree, as do the People, that K.A. is entitled to remand to allow the
juvenile court to expressly declare whether his violation of count 1 is a felony
or a misdemeanor. On the second issue, we conclude there is no error
because the court at disposition allowed K.A. to remain at home in the
physical custody of his parents. In all other respects, we affirm the
judgment.
FACTUAL AND PROCEDURAL OVERVIEW
On March 30, 2021 K.A. was driving his friend’s work van while his
friend sat in the front passenger seat. K.A. did not have a driver’s license or
the van owner’s permission to drive the vehicle. Two more of K.A.’s friends
were also inside the van.
1 Unless otherwise designated, all further section references are to the
Welfare and Institutions Code.
2
At some point on the drive, K.A. ran a red light. To avoid hitting a car
entering the intersection, K.A. swerved, lost control of the van, and collided
with a white Kia Optima that was stopped in the left turn lane. The force of
the impact caused the Optima to crash into a Ford Fusion behind it. K.A.
then drove away.
The driver of a white Jeep who saw the van run the red light and crash
into the other vehicle pursued after the van when he realized it was not
stopping. The Jeep’s driver pulled alongside the van, made eye contact with
its driver, and motioned for him to pull over. Shortly thereafter, the van
stopped in a dirt parking lot, about a quarter mile from the accident scene.
The Optima driver sustained personal injuries to his knee and back,
which prevented him from working his construction job of 22 years, as well as
damage to his vehicle. The Fusion driver was uninjured but her vehicle
sustained property damage of about $6,200.
In September 2021, K.A. filed a motion asking the juvenile court to
place him on informal probation. The court denied the motion, ruling K.A.
was presumptively ineligible for informal supervision and the interests of
justice did not dictate otherwise.
The case was tried in mid-November 2021. After witness testimony
and the argument of counsel, the juvenile court found beyond a reasonable
doubt that K.A. committed the offenses in counts 1 and 2. The court then
turned to the possible sentence on these counts, stating, “Count 1 carries with
it an overall maximum term of three years. I will deem it to be a felony. And
Count 2 carries with it a maximum term of six months. So the overall
maximum term on this petition will be three years and two months, given
Count 2 being subordinated to Count 1.” The court set disposition for
December 13.
3
At the disposition hearing, the juvenile court adjudged K.A. a ward of
the court pursuant to section 602,2 and placed him at home under the
supervision of probation.
DISCUSSION
I.
Designation of Count 1 as a Felony or Misdemeanor
A. Guiding Principles
Hit and run causing injury (count 1) is a “wobbler” that can be treated
in the court’s discretion as a felony or a misdemeanor. (See Veh. Code,
§ 20001, subd. (a) [providing in relevant part, “The driver of a vehicle
involved in an accident resulting in injury to a person . . . shall immediately
stop the vehicle at the scene of the accident”]; id, subd. (b)(1) [“a person who
violates subdivision (a) shall be punished by imprisonment in the state
prison, or in a county jail for not more than one year, or by a fine of not less
than one thousand dollars ($1,000) nor more than ten thousand dollars
($10,000), or by both that imprisonment and fine”]; see also People
v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 [noting “wobbler”
offenses are “crimes that, in the trial court’s discretion, may be sentenced
alternately as felonies or misdemeanors”]; Alvarez, at p. 974, fn. 4 [citing
Vehicle Code section 20001 as an example of a wobbler].)
When a minor is found to have committed a wobbler, the juvenile court
“shall declare the offense to be a misdemeanor or felony.” (§ 702.) The court
is required to make an “explicit declaration” whether such an offense is a
2 Section 602 provides in relevant part, “[A]ny minor who is between 12
years of age and 17 years of age, inclusive, when he or she violates any law of
this state . . . defining crime other than an ordinance establishing a curfew
based solely on age, is within the jurisdiction of the juvenile court, which may
adjudge the minor to be a ward of the court.” (§ 602, subd. (a).)
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felony or a misdemeanor. (In re Raymundo M. (2020) 52 Cal.App.5th 78, 92;
Cal. Rules of Court, rule 5.780(e)(5) [providing in part that “the court
must . . . expressly declare on the record that it has made such consideration,
and must state its determination as to whether the offense is a misdemeanor
or a felony”].)
This rule ensures that the juvenile court is aware of—and actually
exercises—its discretion to treat the offense as a felony or a misdemeanor.
(In re Manzy W. (1997) 14 Cal.4th 1199, 1207 (Manzy).) “This declaration
must be made at or before disposition.” (In re E.G. (2016) 6 Cal.App.5th 871,
881, fn. 9.) “Strict compliance” is the rule (Manzy, at p. 1208); if the record
does not show such an exercise of discretion, the matter must be remanded
(id., at 1209).
B. Analysis
Here, count 1 was charged as a felony. The probation report also
referred to count 1 exclusively as a felony; and at the conclusion of the
adjudication/jurisdiction hearing, the juvenile court expressly stated it was
treating count 1 as a felony.
But nowhere in the record does the juvenile court state it was aware
that a violation of Vehicle Code section 20001 could also be treated as a
misdemeanor. As the Supreme Court in Manzy made clear, section 702 is
“not solely administrative,” but “also serves the purpose of ensuring that the
juvenile court is aware of, and actually exercises, its discretion.” (Manzy,
supra, 14 Cal.4th at p. 1207, italics added.)
Because the juvenile court in this case failed to acknowledge that count
1 is a “wobbler” offense if committed by an adult; and because the court
therefore did not explicitly designate whether, as an exercise of its discretion,
it was treating K.A.’s violation of section 20001 as a felony or misdemeanor,
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we conclude that remand is warranted in “strict compliance” with section 702
(see Manzy, supra, 14 Cal.4th at p. 1204) and California Rules of Court, rule
5.780(e)(5).
II.
Potential Term of Confinement
K.A. contends the juvenile court erred when it specified at the
adjudication/jurisdiction hearing that the maximum term of confinement on
the petition was “three years and two months.” We disagree.
First, because K.A. was not removed from the “physical custody” of his
parents, the necessary predicate for specifying a “maximum” (former law)3 or
“middle” (current) “term of imprisonment” did not exist in this case. (See
§ 726, subd. (d)(1) [providing in relevant part, “If the minor is removed from
the physical custody of the minor’s parents or guardian as the result of an
order of wardship made pursuant to Section 602, the order shall specify that
the minor may not be held in physical confinement for a period in excess of
the middle term of imprisonment which could be imposed upon an adult”
convicted of such offense or offenses], italics added.)
Given the plain, “unambiguous” language of section 726 and the fact
K.A. was not removed from the “physical custody” of his parents, we conclude
no error was committed by the juvenile court when it stated a maximum (now
middle) term of confinement he potentially faced. (See People v. Toney (2004)
3 Effective May 14, 2021, subdivision (d) of section 726 was amended to
replace the word “maximum” with the word “middle” in describing the term
of confinement that could be imposed on a minor if he or she is removed from
the “physical custody” of a parent or guardian. (Former § 726, subd. (d)(1).)
Section 726 was again amended effective June 30, 2022. (Stats. 2022, ch. 58
(Assem. Bill No. 200), § 39.) This most recent amendment has no substantive
bearing on the issues in this case.
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32 Cal.4th 228, 232 [if the statutory language is unambiguous, the plain
meaning of the statute governs].)
Second, no error was committed because the juvenile court made the
statement regarding potential confinement at the adjudication/jurisdiction
hearing. “Significantly, the jurisdictional order is an intermediate,
nonappealable order. [Citation.] ‘In this sense, the order is analogous to a
criminal conviction, which is appealable not at the time rendered, but after
sentencing. The dispositional order is the final step in proceedings under
section 602. . . .’ [Citation.] Thus, at the disposition hearing the court
could . . . change [a minor’s] offense from a felony to a misdemeanor. It could
likewise decide . . . to allow [the minor] to continue in the custody of his
parents. It is at that time—when the disposition order is made—that the
court must either state the maximum term of confinement (if the minor is
removed from his parents’ custody) or decline to state any term of
confinement (if the minor is not removed from his parents’ custody). In short,
with respect to stating or not stating a maximum term of confinement, it is
what happens at the disposition hearing that matters.” (In re P.A. (2012)
211 Cal.App.4th 23, 32 (P.A.), second italics added.)
Accordingly, for this separate reason we conclude no error was
committed by the juvenile court in stating K.A.’s potential term of
confinement during the nonfinal adjudication/jurisdiction hearing. (See P.A.,
supra, 211 Cal.App.4th at p. 32.)
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DISPOSITION
The matter is remanded for the juvenile court to exercise its discretion
and explicitly designate whether K.A.’s conviction on count 1 is a felony or
misdemeanor. In all other respects the judgment is affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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