In re I.V. CA3

DISCUSSION

As noted above, when a minor has “committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the [juvenile] court shall declare the offense to be a misdemeanor or felony.” (Welf. & Inst. Code, § 702.) The court must make this declaration “ ‘before or at the time of disposition.’ ” (In re F.M., supra, 14 Cal.5th at p. 712.) “ ‘[N]either the pleading, the minute order, nor the setting of a felony-level period of . . . confinement may substitute’ for the required declaration.” (Ibid.) When a juvenile court fails to make the required declaration, we must remand “unless the record shows that the juvenile court was ‘aware of, and exercised its

2 discretion’ as to each [such offense] alleged against the minor.” (In re F.M., supra, 14 Cal.5th at p. 717.) The juvenile court taking actions consistent with treating the offenses as felonies does not establish that the court was aware of and exercised its discretion because such actions are also consistent with lack of awareness of discretion to treat the offenses as misdemeanors. (Id. at pp. 716-717.) Similarly, a recitation in a “minute order does not show that the juvenile…