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Assault with Deadly Weapon Stopped

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image IN RE PEDRO E.

Student appeals an order declaring him a ward of the juvenile court following the findings he committed assault with a deadly weapon.

IN RE PEDRO E.

In re PEDRO E., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. PEDRO E., Defendant and Appellant.

No. B221694.

Court of Appeals of California, Second District, Division Three.

Filed August 11, 2010.

Gustavo T. Bermudez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Scott A. Taryle, Deputy Attorneys General for Plaintiff and Respondent.

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
Pedro E. appeals an order declaring him a ward of the juvenile court following the findings he committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1).) and possessed a weapon on school grounds (Pen. Code, § 626.10, subd. (a)). Both offenses are punishable alternatively as felonies or misdemeanors.
On appeal, Pedro E. contends the juvenile court erred by failing to declare whether the offenses were felonies or misdemeanors as required by Welfare and Institutions Code section 702. We remand the case to the juvenile court with directions to declare whether the offense in count one is a felony or a misdemeanor. In all other respects, we affirm the juvenile court's order.
FACTS AND PROCEDURAL BACKGROUND
1. Testimony of the school teacher.
On May 6, 2009, a middle school teaching assistant noticed Pedro E. and the victim, another student, wrestling in her classroom. She saw Pedro E. put the victim in a headlock and make stabbing motions with his hand toward the victim's midsection. She approached and saw Pedro E. holding a shiny object shaped like a knife in the same hand which had made the stabbing motion. She separated the students, checked the victim and saw he was uninjured. Pedro E. put the shiny object in his pocket and left the classroom.
The victim told the teaching assistant he was afraid of Pedro E. and did not wish to report the incident. She nonetheless reported the incident to a school safety officer.
2. Testimony of the school safety officer.
The school safety officer found Pedro E. in another classroom and saw Pedro E. attempt to pass a notebook to another student. The safety officer intercepted the notebook and found it contained a fold-out knife with a two inch blade. She detained Pedro E. until an officer for the Los Angeles School Police Department arrived.
3. Testimony of the arresting officer.
An officer from the Los Angeles School Police Department interviewed the victim then questioned Pedro E. about the incident. Pedro E. waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], then stated he placed the victim in a headlock, took out a knife and made motions toward the victim's stomach. Pedro E. claimed he was only "horse playing" and said he received the knife from another student at school.
4. The findings of the juvenile court.
The juvenile court found the allegations of the petition true beyond a reasonable doubt. When announcing its findings, the court stated "[a]s to the allegation in count 1, assault with a deadly weapon, to wit, a knife, the court finds that allegation to be true . . . . [¶] As to the allegation of a weapon on school grounds pursuant to Penal Code section 626.10 [subdivision] (a), a felony, the court finds that allegation to be true . . . ."
CONTENTION
Pedro E. contends the juvenile court erred by failing to declare whether his offenses were felonies or misdemeanors.
DISCUSSION
1. General principles.
Welfare and Institutions Code section 702 provides, in a juvenile proceeding, "[i]f 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 a felony." (Welf. & Inst. Code, § 702.) The statute "requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult." (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.)
2. The juvenile court erred by failing to declare the offense in count one a misdemeanor or a felony.
Both offenses at issue in this case are alternative felony-misdemeanors, or "wobblers." (See Robert L. v. Superior Court (2003) 30 Cal.4th 894, 907 [assault with a deadly weapon is a "wobbler"]; In re William V. (2003) 111 Cal.App.4th 1464, 1468, fn. 2 [possession of a weapon on school grounds in violation of Penal Code section 626.10, subdivision (a) is a "wobbler"].)
Pedro E. contends the juvenile court violated Welfare and Institutions Code section 702 by failing to declare whether the offense in count one was a misdemeanor or a felony. Although the minute order indicates both counts are felonies and the juvenile court set the maximum term of confinement at the upper term, suggesting the juvenile court had found both offenses to be felonies, "[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 a felony." (In re Manzy W., supra, 14 Cal.4th at p. 1208.)
The People agree the juvenile court failed to make the required finding and concede the case must be remanded for the juvenile court to declare whether the offense in count one was a misdemeanor or a felony. It appears the People's concession is well taken.
Remand is not necessarily required in every case in which the court fails to declare the offense a felony or a misdemeanor. As indicated in In re Manzy W., "the record in a given case may show that 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 a wobbler. In such a case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error." (In re Manzy W., supra, 14 Cal.4th at p. 1209.)
Remand would not be redundant in this case. Nothing in the present record establishes the juvenile court was aware of its discretion to sentence the offense as a misdemeanor rather than a felony. Consequently, the case must be remanded to permit the juvenile court to determine whether count one was a misdemeanor or a felony.
3. The juvenile court made a sufficient finding regarding count two.
Pedro E. contends the juvenile court erred by failing to declare whether the offense charged in count two was a misdemeanor or a felony. However, this contention lacks merit because the juvenile court explicitly declared, on the record, count two a felony. At the adjudication hearing, the juvenile court stated: "[a]s to the allegation of a weapon on school grounds pursuant to Penal Code section 626.10 [subdivision] (a), a felony, the court finds that allegation to be true beyond a reasonable doubt." (Italics added.) Thus, the juvenile court made the required declaration as to count two.
Pedro E. attempts to avoid this conclusion and argues the juvenile court merely "read directly off the prosecutor's petition . . . ." Pedro E. cites no authority for the proposition a juvenile court cannot read directly off the petition when announcing its finding. The juvenile court's statement the offense was a felony satisfied its statutory duty to "declare the offense to be a misdemeanor or a felony." (Welf. & Inst. Code, § 702.)
DISPOSITION
The case is remanded to permit the juvenile court to declare whether count one, assault with a deadly weapon, is a misdemeanor or a felony. In all other respects, the order of the juvenile court is affirmed.
We concur:
CROSKEY, J.
ALDRICH, J.

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