Jose T., a Minor

In re JOSE T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSE T., Defendant and Appellant. No. B107974 (Super. Ct. No. TJ 07392) California Court of Appeal Second Appellate District Division One Filed October 30, 1997
CERTIFIED FOR PARTIAL PUBLICATION*
        APPEAL from a judgment of the Superior Court of Los Angeles County. James B. Copelan,Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Remanded with directions and affirmed.
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        William M. Duncan, under appointment by the Court of Appeal, for Defendant and Appellant.
        Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Robert F. Katz and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
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        Teenager Melvin Jones did not have a good day. Defendant fired four shots at the car in which Jones was a passenger, fortunately missing each time. The driver took Jones to his grandmother's house. Later that night, Jones wanted to visit his uncle. Knowing a gang was planning a party nearby, he determined to avoid problems by inconspicuously taking the bus. It was not a wise move. While he waited at the bus stop, defendant and a confederate accosted him and beat him. As Jones fought back, defendant hit him over the head with a handgun and fired two shots. Fortunately, Jones was not shot, although he suffered a head injury that required brief hospital treatment.
        Defendant did not leave the general area. Police responding to the scene of the beating found defendant around the corner. Defendant tried to discard the gun when he saw officers approaching.
        The trial court sustained a juvenile petition alleging assault with a semiautomatic weapon (count 1), assault by means of force likely to produce great bodily injury (count 2), and possession of a firearm (count 3). The court committed defendant to the Youth Authority.

DISCUSSION         Defendant raises sentencing contentions, which respondent concedes, requiring remand. We agree, except as to the question of whether count 3 is a straight misdemeanor. We find it to be a "wobbler." We remand.

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I         In setting the term on count 1, the trial court imposed a ten-year enhancement for personal use of a firearm, and a three-year enhancement for infliction of great bodily injury. Only the greater of the two can be imposed. (In re George M. (1993) 14 Cal.App.4th 376, 382; Pen. Code, § 1170.1(e).) We remand for correction.

II         A "wobbler" is a crime punishable either as a felony or a misdemeanor. Counts 2 and 3 are wobblers. Welfare and Institutions Code section 702 requires the trial court to "declare" a sustained wobbler to be either a felony or misdemeanor. Defendant says the trial court erred in failing to do so as to counts 2 and 3. (Defendant additionally claims count 3 is a straight misdemeanor. Although respondent concedes, we disagree and discuss the issue in part III.)
        The rationale behind section 702's requirement is to ensure a trial court knows of its discretion as to a wobbler in determining the disposition on a juvenile case. The minute order contains a box 20, which provides: "Offense declared to be a felony (count(s) misdemeanor (counts(s) __________" The "felony" box is checked with counts "1, 2 and 3" designated. In setting the maximum period of confinement, the trial court imposed felony terms for all three counts. One would think this would suffice as a declaration. But no. Wiser heads than ours have deduced that, in order to "declare," the trial court must move its lips and have the words escape into the air, making the designation. "[In re] Kenneth H. [(1983) 33 Cal.3d 616], [] citing [In re] Dennis C. [(1980) 104 Cal.App.3d 16] with approval, reiterated that 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. [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.]" (In re Manzy W. (1997) 14 Cal.4th 1199, 1208.)
        We agree with Justice Baxter's dissent that under the circumstances here, "it serves no useful purpose to additionally require a formal utterance that the offense is a felony." (In re Manzy W., supra, 14 Cal.4th at p. 1212 (dis. opn. of Baxter, J.).) Justice Baxter also quotes Justice Mosk's dissent from the 1983 Kenneth H. case: "I deem it a redundant exercise, in the face of this record, to send the matter back to the trial judge merely to require him to recite again, this time by incantation in the words of the statute, a conclusion that he has previously reached and substantially related." (Ibid.) But, we are bound by the majority opinion, and can only commiserate with the dissent.
        It is somewhat ironic that Justice Mosk authored the current opinion, 180 degrees opposite his 1983 dissent in Kenneth H. In reiterating a rule he argued against 14 years ago, Justice Mosk explains himself thus, quoting Justice Frankfurter: "'Wisdom too often never comes, and so one ought not to reject it merely because it comes late.'" (In re Manzy W., supra, 14 Cal.4th at p. 1212 (conc. opn. of Mosk, J.).) We have a hard time equating the meaningless ritual required by Justice Mosk's opinion in Manzy W. with "wisdom." As if this trial court did not have enough to do, it now gets to play Charlie McCarthy to Manzy W.'s Edgar Bergen.
        So, with profound apologies to the trial court, we remand the matter with instructions for it to schedule a new hearing at which it will speak words. We suggest something alone the line of: "I (or The Court, depending on how formal the court desires to be) DECLARE(s) (we suggest the court use this word) count 2 to be a (whatever) and count 3 to be a (whatever)." We trust, but cannot guarantee, this will satisfy the statutory requirement. Sooner or later some tribunal may decide the declaration is no good unless uttered in Latin or Ancient Greek.

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III         Count 3 of the petition charged a violation of Penal Code section 12101, subdivision (a)(1). We disagree with both sides that, in the absence of a qualifying prior conviction by defendant, this was a straight misdemeanor. We find the offense to be a "wobbler," punishable either as a felony or a misdemeanor.
        Section 12101 originally prohibited possession by a minor of "a pistol, revolver, or other firearm capable of being concealed upon the person" except under certain circumstances (such as when accompanied by a parent). The section also prohibited minors from possessing live ammunition, except under similar circumstances. Violation was a misdemeanor unless the minor had been previously convicted of this or a similar offense.
        Section 12101 now provides in paragraph (1) of subdivision (a) that "[a] minor shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person." The section goes on to list some exceptions, such as hunting, and competitive shooting while accompanied by a parent. Paragraph (1) of subdivision (b) prohibits the possession of live ammunition. Subdivision (b) goes on to provide some similar exceptions.
        Subdivision (c), sets forth the appropriate punishment as follows:

        "(c) Every minor who violates this section shall be punished as follows:

        "(1) By imprisonment in the state prison or in a county jail if one of the following applies:

        "(A) The minor has been found guilty previously of violating this section.

        "(B) The minor has been found guilty previously of an offense specified in subdivision (b) of Section 12021.1 or in Section 12020, 12220, 12520, or 12560.

        "(C) The minor has been found guilty of a violation of paragraph (1) of subdivision (a).

        "(2) Violations of this section other than those violations specified in paragraph (1) shall be punishable as a misdemeanor."

        The net result of the penalty portion of section 12101 is that possession of the qualifying firearm is a wobbler. Possession of ammunition is a misdemeanor, elevated to a felony only with requisite prior convictions. The section so declares by going through the "priors" declarations (which de facto apply only to ammunition) and then pointing back to subdivision (a), paragraph (1) to declare that possession of a qualifying firearm is always a wobbler. The minor was "found guilty of a violation of paragraph (1) of subdivision (a)," and thus is subject to a felony disposition at the discretion of the trial court.

DISPOSITION         The matter is remanded to the trial court for a new disposition hearing. On count 1, the trial court is to impose only the longer of the two applicable enhancements. (Penal Code §§ 12022.5, 12022.7.) On counts 2 and 3, the trial court is to declare orally whether the matters are felonies or misdemeanors. The trial court then shall set the aggregate comittment period. In all other respects, the judgment is affirmed.

I concur:
        DUNN, J.
        

        I concur fully in the published portion of the opinion.
As to the portion not published, I concur only in the result:




* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I and II.