In re D.J. CA4/2

DISCUSSION

Minor contends the juvenile court failed to state whether it was exercising its

discretion in declaring the assault with a deadly weapon offense (count 1) as either a

felony or misdemeanor and, therefore, the matter must be remanded. The People concede

the issue, and note that the court did not make its required finding as to either count. We

agree.

Welfare and Institutions Code section 702 requires the juvenile court to expressly

declare on the record whether an offense, which may be treated either as a felony or as a

misdemeanor (a “wobbler”), is in fact to be treated as a felony or as a misdemeanor. The

purpose of this requirement is to make a clear record from which the minor’s maximum

term of confinement may be calculated. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204-

1205.)

The juvenile court’s duty to make the declaration affirmatively on the record is

mandatory, and not merely directory. (In re Manzy W., supra, 14 Cal.4th at pp. 1204-

1207.) The provision requires strict compliance. (Id. at p. 1204.) Thus, neither the

imposition of a felony-length sentence nor the specification of the offense as a felony in

the charging document is sufficient…