IN RE: MANZY W. (1995)

The minor, who was on probation to the juvenile court, admitted possessing methamphetamine (Health & Saf.Code, § 11377, subd. (a) and joyriding (Pen.Code, § 499b).   He was committed to the Youth Authority for a maximum period of three years for the drug offense, plus a consecutive one month for the joyriding.

On appeal, the minor contends remand is necessary because (1) the trial court failed to designate whether the possession of methamphetamine charge was a felony or misdemeanor, and (2) the court abused its discretion in committing him to the Youth Authority.   While we conclude remand is necessary for the court to determine the status of the drug possession charge, we find no abuse of discretion in the Youth Authority commitment.

 Welfare and Institutions Code section 702 ¹ states 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.”   A violation of Health and Safety Code section 11377, subdivision (a) is punishable by either imprisonment in the county jail for not more than one year or in state prison.   Consequently, the offense may be either a misdemeanor or felony, and the court should have, but did not, determine its status.

Relying on In re Andres M. (1993) 18 Cal.App.4th 1092, 23 Cal.Rptr.2d 170, the People urge that remand is unnecessary notwithstanding the juvenile court's failure to expressly comply with section 702.   For reasons to follow, we disagree with In re Andres M. and shall remand the matter for the necessary finding.

In In re Ricky H. (1981) 30 Cal.3d 176, 178 Cal.Rptr. 324, 636 P.2d 13, the minor was committed to the Youth Authority having committed an assault pursuant to Penal Code section 245, which was a misdemeanor or felony depending upon the punishment assessed.   The juvenile court failed to expressly declare the status of the offense in committing the minor to the Youth Authority.   In ordering remand, the court observed that neither specification in the petition that the offense was a felony nor the minor's admission of the truth of the charge was sufficient to constitute compliance with section 702 (citing in rE jeffeRY M. (1980) 110 caL.app.3d 983, 985, 168 caL.rptr. 337);  nor was the setting of the felony-level maximum period of confinement sufficient compliance (citing In re Dennis C. (1980) 104 Cal.App.3d 16, 23, 163 Cal.Rptr. 496);  nor were the minutes of the dispositional hearing describing the offense as a felony sufficient compliance where the transcript of the proceedings did not support the notation in the minutes (again citing In re Dennis C., supra, at p. 23, 163 Cal.Rptr. 496).

In In re Kenneth H. (1983) 33 Cal.3d 616, 189 Cal.Rptr. 867, 659 P.2d 1156, the minor was committed to a camp placement based upon a finding he committed second degree burglary, as alleged in both section 602 and section 777 petitions.   Second degree burglary is an offense punishable as either a misdemeanor or a felony.   The court failed to declare the status of the burglary.   On appeal, the People argued section 702 had been complied with because the accusatory pleading described the offense as a felony;  at the jurisdictional hearing the court found the allegations of the petition true;  the finding of truth was referred to at the disposition hearing;  and the court would not have found the allegations of the supplemental petition true if it had not found the burglary to be true.  (At p. 619, 189 Cal.Rptr. 867, 659 P.2d 1156.)

The Kenneth H. court, citing Ricky H., supra, 30 Cal.3d 176, 178 Cal.Rptr. 324, 636 P.2d 13, rejected these arguments, observing “section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor,” and ordered remand for compliance.  (Id. at p. 619, 189 Cal.Rptr. 867, 659 P.2d 1156.)

In Andres M., supra, 18 Cal.App.4th 1092, 23 Cal.Rptr.2d 170, the juvenile court failed to expressly declare whether two auto theft offenses (Veh.Code, § 10851) admitted by the minor were felonies or misdemeanors, and the appellate court refused to remand for such a declaration.   The appellate court reasoned it was clear from the record that neither the minor nor his counsel expected misdemeanor treatment of the auto theft offenses—the theft charges admitted by the minor included, in both petitions, allegations the thefts were felonies;  in exchange for his plea to the charges, the district attorney had agreed to dismiss the remaining allegations of the initial petition, including felony drunk driving charges;  the minor had agreed that for disposition purposes the remaining charges could be considered;  while awaiting disposition of the auto theft findings, the minor confessed to participating in a residential burglary, a straight felony;  and the juvenile court had before it the minor's juvenile record which disclosed he had two prior auto thefts for which he spent nearly a year at the county camp facility.  (At p. 1096, 23 Cal.Rptr.2d 170.)

The Andres M. court recognized that in refusing to remand the matter it was departing from the cases which had uniformly held that section 702 requires an express and unambiguous declaration from the trial court as to the felony or misdemeanor status of an offense.   However, the court justified this departure based upon the recent holding of In re Richard S. (1991) 54 Cal.3d 857, 2 Cal.Rptr.2d 2, 819 P.2d 843, as well as People v. McGee (1977) 19 Cal.3d 948, 140 Cal.Rptr. 657, 568 P.2d 382.

Insofar as is relevant to the reasoning of Andres M., Richard S. and McGee essentially stand for the proposition that a rule or statute's use of the term “shall” is not determinative of whether the rule or statute is “directory” or “mandatory.”   Instead, that determination turns upon whether the rule or statute is meant for the benefit of one or more of the litigants.   If meant for the benefit of a litigant, the rule or statute's use of “shall” renders it mandatory;  if the statute is for some collateral administrative purpose unrelated to any benefit to any litigant, the rule or statute is directory notwithstanding its use of the term “shall.”  (In re Richard S., supra, at pp. 865–866, 2 Cal.Rptr.2d 2, 819 P.2d 843;  People v. McGee, supra, at pp. 962–963, 140 Cal.Rptr. 657, 568 P.2d 382.)

Applying these rules of construction, Andres M., supra, 18 Cal.App.4th 1092, 23 Cal.Rptr.2d 170 found no substantial interest of the juvenile was implicated in section 702 because there was no requirement the trial court set forth reasons for treating an offense as a felony rather than a misdemeanor and because section 702's “most important” purpose—determination of the maximum theoretical period of confinement—was entirely satisfied when, in accepting the minor's plea, the trial court determined the maximum period of confinement on the offenses.  (At p. 1099, 23 Cal.Rptr.2d 170.)  Andres M. concluded, “Thus we believe the declaration required by Welfare and Institutions Code section 702 ․ was designed to serve principally administrative purposes and may therefore be treated as directory rather than mandatory.”  (Id. at p. 1100, 23 Cal.Rptr.2d 170.)

Not only is the Andres M. court's conclusion that section 702 is directory contrary to the California Supreme Court's observation that “section 702 ․ mandates the juvenile court to declare the offense a felony or misdemeanor,” but, we believe, the Andres M. court erred when it found no substantial interest of a minor is implicated in section 702.

In In re Kenneth H., supra, 33 Cal.3d 616, 189 Cal.Rptr. 867, 659 P.2d 1156, the court observed with respect to the significance of a finding under section 702, “Most important, the finding determines the maximum period of physical confinement.”  (At p. 619, fn. 3, 189 Cal.Rptr. 867, 659 P.2d 1156.)   While that finding is necessary for administrative purposes, such a finding is of at least equal concern and benefit to the minor—such a finding insures he is not held in custody longer than the law permits.   Moreover, a declaration the offense is a felony or is a misdemeanor insures the court is aware of its sentencing discretion in determining the maximum period of confinement.   For these reasons, we decline to follow Andres M. and shall remand the matter for the required section 702 finding.

 The minor contends the juvenile court abused its discretion in committing him to the Youth Authority because it did not give adequate consideration to less restrictive placements.   The record is to the contrary.

The probation officer's report disclosed the minor had been “considered by the department placement committee, but because of [his] age and his history of running away, placement [was] not an option.”   He was under consideration for the Phoenix program “should a vacancy arise.”

At the disposition hearing, the court, which had read the probation officer's report, informed the minor's mother it was considering committing him to the Youth Authority and recommending he be placed in the LEADS program.   When the minor's mother asked if the program was like “boot camp,” the court responded, “No, it's—CYA is a secure facility, it's jail.   But it's—the program is a four-month—explain the program Miss Greer (probation officer).   You know it better than I do.”   Miss Greer then went on to explain the program in detail.

From this dialogue the minor argues the court failed to consider less restrictive alternatives to the Youth Authority and was recommending a program “the court did not even understand.”   However, the court expressly noted it had “considered lesser restrictive placements but [did] not feel that they would be adequate to provide [the minor] the kind of stability and security he needs, especially evidenced by the fact that he's been completely beyond his mom's control for many years now and has engaged in the sales of narcotics for most of that period of time.”

The mere fact the court deferred to the probation officer in explaining the LEADS program does not show the court was unfamiliar with the program.   At most it shows the probation officer, whose specialty it is to investigate and know such programs, knew more of the details than did the court.   Clearly the court considered, but rejected, less restrictive alternatives than a Youth Authority commitment.

Moreover, the rest of the record essentially compels such a commitment.   The probation officer's report shows a very troubled minor.   The minor was 17 years old at the time of the disposition;  he had been expelled from school for selling drugs;  his grades were “average to poor”;  he had behavior and truancy problems;  he was on probation for receiving stolen property and battery;  according to his mother, he had broken every condition of his probation;  he ran away to Los Angeles where he was arrested for purse snatching;  he admitted to using marijuana and methamphetamine;  and he threatened his family with physical violence when he was under the influence of drugs or could not obtain them.   Given the minor's history, the court's choices were quite limited.   The Phoenix program was unavailable to the minor and placement was not a realistic option.   Consequently, the Youth Authority commitment was appropriate.

The matter is remanded to the juvenile court for compliance with section 702 and possible recalculation of the minor's maximum period of confinement.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   All undesignated statutory references are to the Welfare and Institutions Code.

RAYE, Associate Justice.

PUGLIA, P.J., and BLEASE, J., concur.