In re E.Y. CA2/2 ( 2024 )

Filed 2/28/24 In re E.Y. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re E.Y., a Person Coming B325891
Under the Juvenile Court Law.
(Los Angeles County
Superior Ct. No. MJ25112)
THE PEOPLE,
Plaintiff and Respondent,
v.
E.Y.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David Yaroslavsky, Judge. Affirmed.
Mary Bernstein, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Ryan M. Smith,
Deputy Attorneys General.
******
Minor E.Y. (minor) appeals from an order of the juvenile
court that he committed a felony, claiming it was error by the
court not to make an explicit declaration that the offense would
be characterized as a felony rather than as a misdemeanor. We
find any error harmless and affirm.
FACTUAL BACKGROUND
While performing his duties, a maintenance worker was
approached and followed by minor in a manner that concerned
the worker. Eventually, the worker asked minor to leave and
warned the police would be called. In response, minor grabbed a
box cutter from the worker’s golf cart-type vehicle, extended the
blade, and threatened the worker by lunging at him and chasing
him around the cart. Minor ran off, the worker contacted police
and identified minor as the person who attacked him.
A petition was filed under Welfare and Institutions Code
section 602,1 alleging minor, a 15-year-old, committed assault
1 Welfare and Institutions Code section 602, subdivision (a),
states: “[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 or
of the United States or any ordinance of any city or county of this
state defining crime other than an ordinance establishing a
curfew based solely on age, is within the jurisdiction of the
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with a deadly weapon, a box cutter, in violation of Penal Code
section 245, subdivision (a)(1).2 At the jurisdictional hearing, the
juvenile court sustained the petition and declared minor a ward
of the court, finding the offense was a felony.
Minor filed a timely notice of appeal.
CONTENTIONS ON APPEAL
Minor contends the juvenile court erred by failing to make
a formal declaration under section 702 that his offense was a
felony.
DISCUSSION
I. Applicable law
“If 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.” (§ 702.) The court is required to make
an “explicit declaration” whether a so-called wobbler offense is a
felony or a misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199,
juvenile court, which may adjudge the minor to be a ward of the
court.”
Undesignated statutory references are to the Welfare and
Institutions Code, unless otherwise noted.
2 Penal Code section 245, subdivision (a)(1), states: “Any
person who commits an assault upon the person of another with a
deadly weapon or instrument other than a firearm shall be
punished by imprisonment in the state prison for two, three, or
four years, or in a county jail for not exceeding one year, or by a
fine not exceeding ten thousand dollars ($10,000), or by both the
fine and imprisonment.”
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1204 (Manzy W.).) “[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.)
Remand, however, is not automatic when the court fails to
make the formal declaration under section 702. (Manzy W.,
supra, 14 Cal.4th at p. 1209.) When the record in a given case
shows 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 the wobbler, failure to
literally comply with the statute is harmless error and remand
would be redundant. (Ibid.)
II. Any error was harmless
Minor was charged with violating Penal Code section 245,
subdivision (a), punishable as either a felony or a misdemeanor,
and was thus subject to Welfare and Institutions Code section
702. (In re Brandon T. (2011) 191 Cal.App.4th 1491, 1495, fn. 4.)
Here the trial court declared the offense to be a felony at the
conclusion of the hearing when it sustained the petition, saying,
“In count 1, a felony, the evidence does establish beyond a
reasonable doubt . . . that the minor did act with a deadly weapon
other than a firearm . . . ,” and adding that minor’s act of chasing
the worker with the box cutter “by nature would directly and
probably result in the application of force to someone.” Defense
counsel then asked the court to reduce minor’s offense to a
misdemeanor under Penal Code section 17, subdivision (b).3 The
3 Penal Code section 17, subdivision (b)(5) authorizes a court,
at or before the preliminary hearing, to determine that a wobbler
is a misdemeanor.
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court considered and denied the request “based on the nature of
the assault in this case.”
When the court considers reducing an offense from a felony
to a misdemeanor, it reflects the court’s understanding that the
offense is a wobbler (In re Raymundo M. (2020) 52 Cal.App.5th
78, 93), as courts do not have the authority to reduce straight
felonies to misdemeanors. Only wobblers can be reduced.
(Sannmann v. Department of Justice (2020) 47 Cal.App.5th 676,
683.)
In re Raymundo M. illustrates that addressing the issue of
a wobbler in a motion to reduce the offense under Penal Code
section 17 suffices to demonstrate the court’s awareness of and
exercise of discretion on the issue. (In re Raymundo M., supra, 52
Cal.App.5th at p. 93.) Here, as in Raymundo M., and unlike in
Manzy W., the record demonstrates the juvenile court complied
with the declaration requirement under section 702. (In re
Raymundo M., supra, 52 Cal.App.5th at p. 90.) First, the petition
alleged minor committed assault with a deadly weapon, which
was listed as a “felony.” In addition, at the jurisdictional hearing,
the court acknowledged on the record that the true finding was a
“felony.”
Moreover, as Raymundo M. provided, “[e]ven more
fundamentally, the fact the court was considering reducing the
assault count to a misdemeanor at all reflects the court’s
understanding that the offense was a wobbler.” (In re
Raymundo M., supra, 52 Cal.App.5th at p. 93.) Here, defense
counsel asked the court to reduce the count to a misdemeanor.
The court indicated that it “considered” the request, but denied it
based upon minor’s actions during the assault. Thus, the court
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was aware the offense was a wobbler and properly exercised its
discretion when it declared the offense a felony.
Accordingly, the juvenile court here did declare the offense
to be a felony. Because the court complied with the declaration
requirement under section 702, remand is unnecessary.
It is noteworthy that the May 31, 2019 minute order states:
“The offense is declared to be a felony.”
Even if the juvenile court’s statements were insufficient to
meet the declaration requirement of section 702, remand is not
required because the record as a whole establishes that the
juvenile court was aware of its discretion to treat the offense in
count 1 as a misdemeanor and declined to exercise that
discretion. (See Manzy W., supra, 14 Cal.4th at p. 1209.)
Because the court was aware of its sentencing discretion,
any error in failing to explicitly state its finding that the offense
was a felony is harmless and remand is unnecessary.
DISPOSITION
The juvenile court’s order is affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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