IN RE: T.R. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

After a contested jurisdictional hearing, the juvenile court found the following allegations against appellant, T.R., in the first amended petition true:  1) second degree robbery (Pen.Code, § 211); ¹  2) possession of a deadly weapon (brass knuckles) (§ 12020, subd. (a)(1));  and 3) battery (§ 242).   The court also found true a special allegation that T.R. personally used a deadly and dangerous weapon (a knife) in the commission of the robbery. (§ 12022, subd. (b)(1).)   At the dispositional hearing, the juvenile court adjudged T.R. a ward of the court, placed him on probation, and committed him to the Tulare County Youth Facility Boot Camp Program.   The court set a maximum confinement period of six years and 10 months calculated as follows:  five years for the robbery, plus one year for the special allegation;  eight months for the deadly weapon possession;  and two months for the battery.

On appeal, T.R. contends the juvenile court erred by failing to declare the character of his deadly weapon possession offense pursuant to Welfare and Institutions Code section 702.   Respondent concedes and we agree.   We will remand the matter to the juvenile court for compliance with Welfare and Institutions Code section 702.   In all other respects, we will affirm.

Factual Background

On January 10, 2010, appellant held a knife to a vendor at a Visalia swap meet while he and several other young men stole merchandise from a display case.   They left the scene, but were apprehended a short time later.   Brass knuckles, the basis for the deadly weapon possession count, were found on appellant at that time.

The battery underlying count 3 occurred on October 16, 2009, when, following a fight between two minors, appellant struck one of them in the head.

Discussion

Appellant contends the court erred in failing to declare whether the possession of brass knuckles was a felony or misdemeanor and the case must be remanded because the record fails to show the court was aware of its discretion to treat his offense as a misdemeanor.   Respondent concedes and we agree.

Welfare and Institutions Code section 702 provides in pertinent part:  “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.”   The word “shall” as used in this section is mandatory.  (Welf. & Inst.Code, § 15.)

Possession of a deadly weapon under section 12020, subdivision (a)(1) is punishable as a misdemeanor or felony.² (§ 17, subd. (a).)

In In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy W.), our Supreme Court noted that Welfare and Institutions Code section 702 served not only an administrative purpose, but also ensured the juvenile court is aware of, and actually exercises, its discretion under the section.  (Id. at p. 1207.)   The finding required by this section also carries further implications for the minor's future, given that prior felony convictions may be used for purposes of impeachment or sentence enhancement in any criminal proceeding.  (Id. at p. 1209;  Cal. Const., art.   I, § 28, subd. (f), par. (4);  Pen.Code, § 667, subd. (d)(3);  Welf. & Inst.Code, § 707, subd. (b)(18).)   Thus, the Manzy W. court held that the failure to expressly declare the character of an offense subject to Welfare and Institutions Code section 702 requires remand to the juvenile court for strict compliance with this section.  (Manzy W., supra, 14 Cal.4th at p. 1204.)   Unless, however, the record shows that, despite its failure to comply with the statute, the court was aware of, and exercised its discretion to determine the felony or misdemeanor nature of the offense and remand would therefore be redundant.  (Id. 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.  [Citation.]  Instead, ‘the crucial fact is that the court did not state at any of the hearings that it found the [offense] to be a felony.’  [Citation.]  [Fn. omitted.]”  (Manzy W., supra, 14 Cal.4th at p. 1208.)   Here, the court failed to declare the character of the weapons charge at either T.R.'s jurisdictional or dispositional hearing.   Further, our review of the record fails to disclose any circumstances from which it can be inferred the court was aware of its discretion to determine the character of the offense or that it exercised its discretion.   In accord with Manzy W., we conclude Welfare and Institutions Code section 702 requires remand to the juvenile court for determination of the character of the offense.

Disposition

The matter is remanded to the juvenile court for exercise of its discretion to determine whether the deadly weapon possession was a misdemeanor or a felony and to make the express declaration required by Welfare and Institutions Code section 702.   In all other respects, the judgment is affirmed.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Section 12020, subdivision (a)(1) states in pertinent part:  “(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison:  [¶] (1) ․ gives, lends, or possesses ․ any metal knuckles․”.  FN2. Section 12020, subdivision (a)(1) states in pertinent part:  “(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison:  [¶] (1) ․ gives, lends, or possesses ․ any metal knuckles․”