Error and/or relief
The juvenile court did not declare on the record that either of the minor’s two aggravated assault offenses was a felony or a misdemeanor, as required by Welfare and Institutions Code section 702
Section 730.6 requires that the restitution fines imposed must be stricken.
The precommitment credits must be corrected.
First Holding:
Section 702 provides, in part, that when a 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.
Section 702 requires the juvenile court to declare on the record at a hearing ‘before or at the time of disposition its choice whether to treat an alleged wobbler as a misdemeanor or as a felony. Neither the pleading, the minute order, nor the setting of a felony-level period of confinement may substitute for the required declaration.
Authority:
WIC 702
In re F.M. (2023) 14 Cal.5th 701, 712
Second Holding:
A section 702 error is not harmless unless the record shows that the juvenile court was aware of, and exercised its discretion as to each wobbler alleged against the minor. The key issue under this standard is whether the juvenile court was aware of its discretion under section 702.
Authority:
In re F.M. (2023) 14 Cal.5th 701, 712, 717
Third Holding:
This section 702 error was not harmless. Signed minute orders in the two assault cases stated, “Pursuant to Juvenile Court Rule 5.795(a), the court finds the offense to be a Felony as to count 1.”
This language tracks recommendations in a memorandum probation filed for disposition. However, rule 5.795(a) states that for any wobbler, the court must consider which description applies and expressly declare on the record that it has made such consideration and must state its determination as to whether the offense is a misdemeanor or a felony.
The court’s failure to comply with the very rule cited undermines any inference that it was aware of its discretion.
Authority:
Cal. Rules of Court, rule 5.795(a)
Fourth Holding:
The juvenile court imposed three $200 restitution fines. Effective January 1, 2025, AB 1186 (2023-2024 Reg. Sess.) amended section 730.6 to remove the requirement that a minor pay a restitution fine. The relevant portion of the statute now provides: “The court shall not impose a separate and additional restitution fine against a minor found to be a person described in section 602.”
Appellant is entitled to the ameliorative benefit of this amendment.
Authority:
WIC 730.6(a)(2)
In re Estrada (1965) 63 Cal.2d 740, 745-746
Fifth Holding:
The court erred in calculating the credit for time served, awarding the minor less than half the more than 450 days the minor was entitled to. A minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing.
When a juvenile court elects to aggregate a minor’s period of physical confinement on multiple petitions the court must also aggregate the predisposition custody credits attributable to those multiple petitions.
Authority:
In re A.M. (2014) 225 Cal.App.4th 1075, 1085-1086
Sixth Holding:
Section 628.2(c) provides that a minor shall be entitled to have one day credited against the minor’s maximum term of confinement for each day, or fraction thereof, that the minor serves on electronic monitoring. The provision of custody credits pursuant to this subdivision shall apply to custody credits earned beginning January 1, 2023.
Because the minor was on electronic monitoring after January 1, 2023, he is entitled to credits for that time.
Authority:
WIC 628.2(c)