IN RE: T.J. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant T.J., a minor, appeals a determination that he is a ward of the court under Welfare and Institutions Code section 602 for committing grand theft from a person.   His principal contention on appeal is that the juvenile court did not orally state whether his conviction was a felony or misdemeanor.   Respondent agrees the trial court erred and the case should be remanded.   We agree as well.

Because of the procedural nature of the point raised by appellant, we need not set out the underlying facts in detail.   The District Attorney filed an amended delinquency petition based on charges that appellant had committed a robbery under Penal Code section 211 or a grand theft person under section 487, subdivision (c).  The incident involved the taking of a cell phone.   The trial court dismissed the robbery count, found true the grand theft count, and sustained the petition.

According to the court's minute order, the grand theft person was a felony, and appellant was ordered home on probation on various terms and conditions.

Both sides agree the law is clear that when delinquency charges are based on a statute which for an adult would make the crime a wobbler, i.e., either a felony or misdemeanor, the juvenile court must expressly declare the offense to be a felony or a misdemeanor based on the circumstances of the case.   (Welf. & Inst.Code, § 702;  In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).)   Grand theft person is such a crime.  (Pen.Code, § 489.)   Although the minute order purports to declare the offense a felony, our Supreme Court has held “neither 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.”   (Manzy W., at p. 1208.) ¹

The appropriate remedy in this situation is to remand the matter to the juvenile court for an express declaration of whether the grand theft person here was a misdemeanor or felony.

Appellant also argues the court erred in requiring body samples because none is required for a misdemeanor.   Respondent agrees that if the offense is determined to be a misdemeanor, samples would not be required.   Appellant asks us to direct the juvenile court, if it determines the offense to be a misdemeanor, to rescind its order and destroy any samples actually taken.   We believe the better course is to let the juvenile court make its felony/misdemeanor determination and then decide what, if any, additional orders it should make.  (See Pen.Code, §§ 296, 296.1, 299.)

DISPOSITION

The juvenile court order is reversed and remanded for the sole purpose of allowing the juvenile court to make a determination of whether the offense is a misdemeanor or a felony and any additional orders appropriate after that determination.   In all other respects, the juvenile court order is affirmed.

WE CONCUR:

FOOTNOTES

FN1. The minute order actually says that count 1 is declared to be a felony.   We assume this is a typographical error as count 1, the robbery, was dismissed.   Even if we treat the minute order as declaring count 2, the grand theft charge, a felony, Manzy W. tells us that a minute order on its own without an express declaration by the court is insufficient.   No maximum period of confinement was stated because appellant was ordered home on probation.  (Welf. & Inst.Code, § 726, subd. (c).).  FN1. The minute order actually says that count 1 is declared to be a felony.   We assume this is a typographical error as count 1, the robbery, was dismissed.   Even if we treat the minute order as declaring count 2, the grand theft charge, a felony, Manzy W. tells us that a minute order on its own without an express declaration by the court is insufficient.   No maximum period of confinement was stated because appellant was ordered home on probation.  (Welf. & Inst.Code, § 726, subd. (c).)

BIGELOW, P. J. FLIER, J.