IN THE SUPREME COURT OF
CALIFORNIA
In re F.M.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
F.M.,
Defendant and Appellant.
S270907
Sixth Appellate District
H048693
Santa Cruz County Superior Court
19JU00191
May 4, 2023
Justice Liu authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Kruger, Groban,
Jenkins, and Evans concurred.
In re F.M.
S270907
Opinion of the Court by Liu, J.
Some crimes, known as wobbler offenses, are punishable
either as misdemeanors or as felonies at the discretion of the
sentencing court. Welfare and Institutions Code section 702
provides that when a minor is found to have committed a
wobbler offense, “the court shall declare the offense to be a
misdemeanor or a felony.” (Welf. & Inst. Code, § 702; all
undesignated statutory references are to this code.) We
explained in In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy W.
that this “mandatory express declaration” requirement exists
partly to “ensur[e] that the juvenile court is aware of, and
actually exercises, its discretion” as to whether a juvenile’s
wobbler offense should be adjudicated as a misdemeanor or
felony. (Id. at pp. 1204, 1207.) We later elaborated that the
express declaration contemplated by section 702 must be made
at a hearing “before or at the time of disposition.” (In re G.C.
(2020) 8 Cal.5th 1119, 1126 (G.C.).
A juvenile court’s choice to classify a wobbler as a
misdemeanor or felony can have significant implications for the
juvenile. If an offense is treated as a felony, it may constitute a
serious or violent felony for purposes of the “Three Strikes” law,
potentially exposing the juvenile to dramatically increased
sentences if he or she reoffends. (Pen. Code, § 667.) If the
juvenile court treats the offense as a misdemeanor, the
conviction will not qualify as a “strike” in any future
prosecution. In enacting section 702, the Legislature
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Opinion of the Court by Liu, J.
manifested special concern with ensuring that juvenile courts
understand the choice they are making when they decide to
subject a juvenile to the consequences that may attend a felony
conviction. (Manzy W., supra, 14 Cal.4th at p. 1207.
In this case, the trial court did not comply with section
702’s express declaration mandate. That point is undisputed.
The question is whether the Court of Appeal erred in declining
to remand the matter to the juvenile court. We hold that it did.
A section 702 error requires remand unless the record as a whole
demonstrates that the juvenile court “was aware of, and
exercised its discretion” as to wobblers. (Manzy W., supra, 14
Cal.4th at p. 1209.) Because the record here does not
demonstrate such awareness, we reverse and remand for
further proceedings.
I.
F.M. first came within the jurisdiction of the juvenile court
after he punched a classmate in 2019. The juvenile court
sustained an allegation that F.M. had committed simple battery
(Pen. Code, § 242) and placed him on probation (Petition A). The
dispositional order for Petition A is not before us.
The following year, F.M. was again brought before the
juvenile court after he and a group of gang members threatened
a victim with a deadly weapon and then fled from police. A
wardship petition (Petition B) alleged a number of offenses,
including various forms of felony assault for the benefit of a
criminal street gang. (Pen. Code, §§ 245, subd. (a)(1), (2), (4),
186.22, subds. (a), (b)(1)(A).) F.M. admitted that he had
committed felony assault with force likely to produce great
bodily injury (id., § 245, subd. (a)(4)), that he actively
participated in a criminal street gang (amended by the district
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Opinion of the Court by Liu, J.
attorney to be alleged as a misdemeanor rather than as a felony
(id., § 186.22, subd. (a)), and that he committed felony reckless
evasion of a police officer (Veh. Code, § 2800.2, subd. (a)). The
juvenile court dismissed the remaining allegations while noting
in a minute order that they would be considered in the rendering
of a disposition.
The Petition B allegations that F.M. admitted — assault
with force likely to produce great bodily injury, active
participation in a criminal street gang, and reckless evasion of
a police officer — are wobbler offenses. Each may be punished
by imprisonment in a state prison or by imprisonment in a
county jail for less than a year. (Pen. Code, §§ 245, subd. (a)(4);
186.22, subd. (a); Veh. Code, § 2800.2; see Pen. Code, § 17,
subd. (a) [defining felony and misdemeanor].) The district
attorney ultimately charged the assault and reckless evasion
allegations as felonies and the street gang participation
allegation as a misdemeanor, and the juvenile court accepted
the admission of these allegations as such. The pretrial hearing
transcript does not reveal any discussion of the juvenile court’s
discretion to treat the offenses as felonies or as misdemeanors,
though the minute order for the proceeding includes a statement
that “[t]he Court has considered whether the above offense(s
should be felonies or misdemeanors.” The juvenile court
determined that F.M. had violated his probation and committed
him to the custody of Santa Cruz County Juvenile Hall until the
dispositional hearing.
While in custody, F.M. participated in an assault on
another minor. The district attorney responded with another
wardship petition (Petition C) alleging felony assault with force
likely to produce great bodily injury, undertaken for the benefit
of a criminal street gang (Pen. Code, §§ 245, subd. (a)(4), 186.22,
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Opinion of the Court by Liu, J.
subd. (b)), as well as felony active participation in a criminal
street gang (id., § 186.22, subd. (a)). These offenses are
wobblers. (Id., § 17, subd. (a).) At a pretrial hearing, F.M.
admitted the felony assault charge without the gang allegation,
and the juvenile court dismissed the other allegations. As with
the pretrial hearing for Petition B, the hearing transcript does
not reveal any discussion of the court’s discretion to treat the
offenses as felonies or misdemeanors. And this time, the court
did not include in its minute order any statement indicating that
it had considered whether the offenses should be treated as
felonies or as misdemeanors.
Petitions B and C were resolved at a dispositional hearing
in November 2020. The juvenile court continued F.M.’s
wardship and found him suitable for placement at a ranch camp.
Neither the transcript nor the minute order for the dispositional
hearing indicate that the juvenile court acknowledged its
discretion to treat the offenses F.M. admitted as misdemeanors
rather than as felonies. F.M. appealed.
On appeal, the Attorney General argued that F.M.
forfeited any argument that the juvenile court had failed to
comply with section 702’s express declaration requirement by
failing to raise the issue before the juvenile court at or before
the dispositional hearing on Petitions B and C. The Attorney
General relied on G.C. for this proposition, contending that G.C.
established that a juvenile court’s violations of section 702
constitute “forfeitable legal error” and are therefore subject to
the general principle that an objection to a juvenile court’s
dispositional order cannot be raised for the first time on appeal.
(See G.C., supra, 8 Cal.5th at p. 1131.
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Opinion of the Court by Liu, J.
The Court of Appeal rejected this argument. In G.C., the
juvenile court failed to declare at the original dispositional
hearing whether certain wobbler offenses were to be treated as
felonies or as misdemeanors, in violation of section 702. (G.C.,
supra, 8 Cal.5th at p. 1122.) But the minor did not appeal that
dispositional order before the time to appeal had expired. (Id.
at p. 1124.) The minor first raised his section 702 arguments on
appeal from a subsequent dispositional order involving the
potential modification of the minor’s placement. (G.C., at
p. 1124.) We held that a minor’s failure to file a timely notice of
appeal deprives an appellate court of jurisdiction to consider a
claim of section 702 error. (G.C., at pp. 1129–1130.) The Court
of Appeal found this reasoning inapplicable, as there is no
question here that F.M.’s appeal from the dispositional order on
Petitions B and C was timely filed. (In re F.M. (July 26, 2021,
H048693) [nonpub. opn.].
Turning to the merits, the Court of Appeal concluded that
the juvenile court failed to comply with section 702’s express
declaration requirement, but that remand was unnecessary
because the record established that the juvenile court “was both
aware of and exercised its discretion to treat the sustained
allegations as felonies.” In particular, the Court of Appeal
emphasized that the juvenile court noted on the record “that the
assault charge ‘is considered a serious violent felony’ and thus
‘could be counted as a strike’ offense in any adult court case
brought against him in the future”; that the juvenile court
declined to reinstate probation for the allegation sustained in
Petition A; and that the juvenile court contemplated committing
F.M. to the Division of Juvenile Justice — a commitment which,
at the time of the dispositional order, could only have been
imposed for certain felony offenses. The court held that these
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Opinion of the Court by Liu, J.
“recitations on the record” made clear that the juvenile court
“elected to designate the offenses as felonies” and thus remand
“would be redundant.” We granted review.
II.
Section 702 provides in relevant part: “If 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 felony.” As we explained in Manzy W., the
statute was enacted in 1976 as part of a substantial revision to
the juvenile court law, under which minors could no longer be
physically confined for a period longer than that for which they
could be imprisoned had they committed the offenses as an
adult. (Manzy W., supra, 14 Cal.4th at p. 1205, citing Stats.
1976, ch. 1071, pp. 4814–4833.) This new requirement made it
necessary, where it had not been before, to determine whether
wobbler offenses alleged against a juvenile are felonies or
misdemeanors. Section 702’s express declaration requirement
facilitates that determination. (Manzy W., at pp. 1205–1206.
We said in Manzy W. that “the purpose of the statute is
not solely administrative”; section 702 “also serves the purpose
of ensuring that the juvenile court is aware of, and actually
exercises its discretion” as to wobbler offenses. (Manzy W.,
supra, 14 Cal.4th at p. 1207.) This recognition comports with
the general purposes of the juvenile court law: “to provide for
the protection and safety of the public and each minor under the
jurisdiction of the juvenile court” (§ 202, subd. (a)); “to preserve
and strengthen the minor’s family ties whenever possible,
removing the minor from the custody of his or her parents only
when necessary for his or her welfare or for the safety and
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Opinion of the Court by Liu, J.
protection of the public” (ibid.); to facilitate “reunification of the
minor with his or her family” if removal from parental custody
proves necessary (ibid.); and “to secure for the minor custody,
care, and discipline as nearly as possible equivalent to that
which should have been given by his or her parents” (ibid.). The
juvenile court law “shall be liberally construed to carry out these
purposes.” (Ibid.) Against this backdrop, the Legislature that
enacted section 702 is best understood as having viewed section
702’s express declaration requirement as calculated to secure for
those subject to the juvenile court’s jurisdiction a guarantee that
the court understood and exercised its discretion as to wobbler
offenses with the purposes of the statutory scheme in mind. (See
Manzy W., at p. 1207.
Since section 702’s enactment, we have thrice remanded
for further proceedings to remedy noncompliance with its
express declaration requirement. The first, In re Ricky H. (1981
30 Cal.3d 176 (Ricky H.), involved a minor alleged to have
committed burglary and assault. (Id. at p. 180.) The assault
count was a wobbler. (Id. at p. 191; see Pen. Code, § 245,
subd. (a).) We held that the record did not “demonstrate that
the court made an express finding that the assault offense was
either a misdemeanor or a felony” despite the wardship petition
describing the assault count as a felony, the juvenile court’s
setting of a felony-level maximum period of confinement, and
the minutes of the dispositional hearing reciting that the minor
was committed for a felony conviction. (Ricky H., at p. 191.
Each of these factors was “insufficient” or “inadequate,” or did
not otherwise satisfy section 702’s mandate. (Ricky H., at
p. 191.) We reasoned that the fact that a juvenile court behaves
as though the offense is a felony does not show that the court
made a conscious choice to treat the offense as a felony or as a
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Opinion of the Court by Liu, J.
misdemeanor — precisely the choice that section 702’s express
declaration mandate requires juvenile courts to make. (Ricky
H., at pp. 191–192.
Similarly, in In re Kenneth H. (1983) 33 Cal.3d 616
(Kenneth H.), the minor was found to have committed a wobbler
offense, and the juvenile court failed to make an express
declaration as to its choice to treat the offense as a felony or as
a misdemeanor. (Id. at pp. 618–620.) The Attorney General
opposed remand on the grounds “that the accusatory pleading
(the petition) described the offense as a felony; that at the
jurisdictional hearing the court found the allegations of the
petition to be true; that the finding of truth was referred to at
the dispositional hearing; and that the court would not have
found the allegations of the supplemental petition true if it had
not found the burglary to be a felony.” (Id. at p. 619.) We
rejected these arguments and remanded for compliance with
section 702, explaining that “the crucial fact is that the court did
not state at any of the hearings that it found the [offense] to be
a felony.” (Kenneth H., at p. 620.
Manzy W. came next. Again, the juvenile court imposed a
felony-level term of confinement for a wobbler offense without
making an express declaration that it was exercising its
discretion to treat the offense as a felony rather than as a
misdemeanor. (Manzy W., supra, 14 Cal.4th at p. 1201.) We
reaffirmed Ricky H. and Kenneth H., explaining 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 a felony.” (Manzy W., at p. 1208.) To comply with section 702,
the juvenile court must “ ‘state at any of the hearings’ ” that it
was exercising its discretion to treat the offense as a felony.
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Opinion of the Court by Liu, J.
(Manzy W., at p. 1208, quoting Kenneth H., supra, 33 Cal.3d at
p. 620.
Even as we affirmed the holdings in Kenneth H. and Ricky
H. in Manzy W., we also explained that remand is not
“ ‘automatic[ally]’ ” required “whenever the juvenile court fails
to make a formal declaration” as mandated by section 702.
(Manzy W., supra, 14 Cal.4th at p. 1209.) Where the record
shows 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,”
remand “would be merely redundant,” and “failure to comply
with the statute would amount to harmless error.” (Ibid.) We
held that the failure to comply with section 702 in Manzy’s case
could not be regarded as harmless under that standard. (Manzy
W., at p. 1210.) We emphasized that over the course of the
relevant hearings, “the juvenile court did not at any time refer
to its discretion to declare the offense a misdemeanor” and that
neither the district attorney nor counsel for the minor ever
“point[ed] out to the juvenile court that it had such discretion.”
(Ibid.) On such a record, we explained, “it would be mere
speculation to conclude that the juvenile court was actually
aware of its discretion in sentencing Manzy.” (Ibid.) We
reversed and remanded for compliance with section 702.
(Manzy W., at p. 1210.
III.
Before this court, the Attorney General argues that F.M.
forfeited his right to challenge the juvenile court’s lack of
compliance with section 702 by failing to raise it before the
juvenile court. The Attorney General contends that sentencing
errors not raised before the trial court cannot be challenged on
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Opinion of the Court by Liu, J.
appeal unless the sentence ultimately imposed was
“unauthorized” as a matter of law. (See People v. Scott (1994) 9
Cal.4th 334, 354 (Scott).) On this view, where a sentencing
court’s error suggests only that the sentence was “imposed in a
procedurally or factually flawed manner,” a defendant’s failure
to raise the issue in the trial court forfeits the claim. (Ibid.
The same argument was raised before the Court of Appeal,
which rejected it. We granted review to decide the issue
presented by F.M.’s petition: whether this matter should be
remanded to the juvenile court in light of its failure to comply
with section 702. As a result, the issue of forfeiture is not
squarely before us. Nevertheless, we address it pursuant to
California Rule of Court 8.516. (Cal. Rules of Court, rule
8.516(b)(2).) We conclude that F.M. has not forfeited his right
to challenge the juvenile court’s failure to comply with
section 702.
It is true that a defendant who fails to object before the
trial court to a sentence on the ground that it is being “imposed
in a procedurally or factually flawed manner” generally forfeits
the right to challenge such an error on appeal. (Scott, supra, 9
Cal.4th at p. 354; see People v. Welch (1993) 5 Cal.4th 228, 234
[“It is settled that failure to object and make an offer of proof at
the sentencing hearing concerning alleged errors or omissions
in the probation report waives the claim on appeal.”].) But
“neither forfeiture nor application of the forfeiture rule is
automatic. [Citation.] Competing concerns may cause an
appellate court to conclude that an objection has not been
forfeited.” (People v. McCullough (2013) 56 Cal.4th 589, 593.
Such concerns are present in the context of section 702
error. Specifically, application of the forfeiture rule would
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Opinion of the Court by Liu, J.
render unreviewable most claims of section 702 error on appeal
because in cases where the section 702 issue was raised in the
juvenile court, the court in all likelihood would have been
apprised of its discretion and no section 702 error would arise.
In Manzy W., we noted that neither “the prosecution [n]or
Manzy’s counsel point[ed] out to the juvenile court that it had
such discretion” as one reason why we could not be certain that
the section 702 error was harmless. (Manzy W., supra, 14
Cal.4th at p. 1210.) We remanded the case for compliance with
section 702’s express declaration requirement. (Manzy W., at
pp. 1210–1211.) While we did not have any forfeiture argument
before us, we treated the fact that no party raised a section 702
error in the juvenile court as a factor suggesting that a remand
was appropriate. (Manzy W., at pp. 1210–1211.) It would have
made little sense for Manzy W. to rely on that fact if a section
702 error not raised in the juvenile court were forfeited on
appeal.
The Attorney General relies on G.C. for the proposition
that a juvenile court’s failure to comply with section 702 is
“forfeitable legal error.” (G.C., supra, 8 Cal.5th at p. 1131.) But
the Attorney General overreads G.C. in arguing that the phrase
“forfeitable legal error” supports a finding of forfeiture here.
G.C. held that the trial court lacked jurisdiction to consider any
section 702 error after the time within which to file an appeal
from the dispositional order had expired. (G.C., at pp. 1129–
1130.) G.C. argued that we could nonetheless reach the section
702 error because it rendered his sentence unauthorized as a
matter of law and therefore correctable “at any time.” (G.C., at
p. 1130.) We rejected this argument on the ground that the
alleged section 702 error went to the manner in which the
sentence was entered, not to the lawfulness of imposing it.
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Opinion of the Court by Liu, J.
(G.C., at p. 1131.) But we did not say that claims of section 702
error are forfeited when the juvenile does not raise them in the
juvenile court. Rather, we used the phrase “forfeitable legal
error” to contrast section 702 errors with errors that fall within
the “narrow” class of errors that are correctable at any time.
(G.C., at pp. 1131, 1130.
We have no occasion here to elucidate the full extent of
what “forfeitable legal error” in the section 702 context might
encompass. We note only that a natural reading of G.C.’s use of
the word “forfeitable” is that a defendant who fails to file a
timely appeal of a dispositional order has forfeited any right to
challenge a section 702 error made in the rendering of that
disposition. G.C. does not support the Attorney General’s
forfeiture argument here; in fact, we said that “upon timely
appeal the proper course would have been to remand the case
for the [juvenile] court to exercise its [section 702] discretion”
(G.C., supra, 8 Cal.5th at p. 1131) without any mention of
whether the section 702 claim had to have been raised first in
the juvenile court.
IV.
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. (G.C., supra, 8 Cal.5th at p. 1126.) “[N]either the
pleading, the minute order, nor the setting of a felony-level
period of confinement may substitute” for the required
declaration. (Manzy W., supra, 14 Cal.4th at p. 1208.) The
juvenile court’s failure to make this declaration as to each of the
wobbler offenses alleged in Petitions B and C was error. (See
ante, at pp. 2–4.
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Opinion of the Court by Liu, J.
The parties focus their arguments on whether we must
remand under the standard announced in Manzy W. There, we
said a juvenile court’s failure to comply with section 702’s
express declaration requirement must be corrected on remand
unless the record as a whole establishes that the juvenile court
“was aware of, and exercised its discretion to determine the
felony or misdemeanor nature of a wobbler.” (Manzy W., supra,
14 Cal.4th at p. 1209.) We reaffirm that standard and remand
accordingly.
A.
The Attorney General contends that while we recognized
the propriety of harmless error review in Manzy W., we “did not
elucidate” the standard. He asserts that we evaluate claims of
section 702 error under the harmless error standard set forth in
People v. Watson (1956) 46 Cal.2d 818 (Watson), which requires
reversal only when “it is reasonably probable that a result more
favorable to the appealing party would have been reached in the
absence of the error.” (Id. at p. 836.
The Attorney General is correct that a juvenile court’s
failure to comply with section 702 is not structural error. In
Manzy W., we “disagree[d] with the minor that remand is, in
effect, ‘automatic’ whenever the juvenile court fails to make a
formal declaration under . . . section 702.” (Manzy W., supra, 14
Cal.4th at p. 1209.) But it does not follow that Watson applies
in this context. Indeed, Manzy W. already established the
relevant standard for assessing whether section 702 error is
harmless: Where the record in a case shows “that the juvenile
court . . . was aware of, and exercised its discretion to determine
the felony or misdemeanor nature of a wobbler,” failure to
comply with section 702 “would amount to harmless error.”
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(Manzy W., at p. 1209.) The “key issue” under this standard is
whether the juvenile court “was aware of its discretion” under
section 702. (Manzy W., at p. 1209.
The Manzy W. standard does not require a juvenile to
show a reasonable probability of a more favorable outcome, and
adopting Watson would be inconsistent with Manzy W. and
subsequent Court of Appeal decisions. In Manzy W., we
concluded that a section 702 error was not harmless because
“[n]othing in the record establishe[d] that the juvenile court was
aware of its discretion to sentence the offense as a misdemeanor
rather than a felony.” (Manzy W., supra, 14 Cal.4th at p. 1210.
We acknowledged that the juvenile court had set a felony-level
term for the offense, rejecting a more lenient recommendation
from the probation department, but we emphasized that the
juvenile court “did not at any time refer to its discretion to
declare the offense a misdemeanor.” (Ibid.) We further
emphasized that neither “the prosecution [n]or Manzy’s counsel
point[ed] out to the juvenile court that it had such discretion.”
(Ibid.) Finally, we noted that the juvenile court consistently
referred to the possession offense as a felony — again, without
ever acknowledging its discretion to treat the offense as a
misdemeanor. (Ibid.) Stating that “it would be mere
speculation to conclude that the juvenile court was actually
aware of its discretion in sentencing Manzy,” we remanded. (Id.
at p. 1210; see id. at p. 1211.
Nothing in this analysis suggests that Manzy had
demonstrated a reasonable probability that he would have
received a more lenient sentence but for the error. Had that
been relevant, we would have given weight to the juvenile
court’s rejection of a more lenient sentence, as the dissenting
opinion in Manzy W. did in arguing that remand was
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unwarranted. (Manzy W., supra, 14 Cal.4th at p. 1212 (dis. opn.
of Baxter, J.).) Instead, our analysis turned entirely on whether
the record showed that the juvenile court was “aware of” and
“exercised” its discretion as to wobblers — precisely the
discretion that section 702 was enacted to “ensur[e]” that
juvenile courts would exercise. (Manzy W., at pp. 1207, 1209
(maj. opn.).
The same is true of the Court of Appeal cases that the
Attorney General identifies as having been “[a]dequately guided
by the rule set forth” in Manzy W. over the years. (See In re
Raymundo M. (2020) 52 Cal.App.5th 78, 90–93 (Raymundo M.);
In re Cesar V. (2011) 192 Cal.App.4th 989, 1000 (Cesar V.); In re
Ramon M. (2009) 178 Cal.App.4th 665, 675–676 (Ramon M.); In
re Eduardo D. (2000) 81 Cal.App.4th 545, 548–549 (Eduardo
D.); In re Jorge Q. (1997) 54 Cal.App.4th 223, 238 (Jorge Q.).
Each of these cases involved a section 702 error, but none
applied or cited the Watson standard or any other standard that
examines the probability of whether a more favorable outcome
would have followed had the juvenile court complied with
section 702. The cases that conducted any analysis at all applied
Manzy W.’s “aware of, and exercised its discretion” standard.
(Manzy W., supra, 14 Cal.4th at p. 1209.
In Cesar V. and Eduardo D., the Attorney General
conceded that the section 702 errors at issue compelled a
remand under the rule of Manzy W. (Cesar V., supra, 192
Cal.App.4th at p. 991; Eduardo D., supra, 81 Cal.App.4th at
p. 548.) Cesar V. accepted the Attorney General’s concession
without analysis and remanded. (Cesar V., at pp. 1000–1001.
Eduardo D. analyzed whether remand was warranted under
Manzy W.’s standard. (Eduardo D., at pp. 548–549.) It
explained that “the juvenile court did not orally indicate on the
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record whether the crime was a felony or a misdemeanor. Nor
did the juvenile court use any language that demonstrated an
awareness of its discretion to make such a determination.” (Id.
at p. 549.) The court noted that “the minute order reflect[ed]
that [the offense] was a felony and the minor’s period of
confinement was set not to exceed the felony period of three
years,” but explained that these facts “do not satisfy the
requirements” of section 702. (Eduardo D., at p. 549.) The court
remanded, without any consideration of whether the record
suggested that the petition might have been adjudicated
differently had section 702’s mandate been followed. (Eduardo
D., at p. 549.
The courts in Jorge Q. and Ramon M. also remanded with
similar reasoning. (Jorge Q., supra, 54 Cal.App.4th at p. 238;
Ramon M., supra, 178 Cal.App.4th at pp. 675–676.) In Jorge Q.,
the court reiterated that the absence of an “express oral on-the-
record finding” violated section 702. (Jorge Q., at p. 238.) It
noted that Manzy W. had “settled any further controversy about
whether an express finding is necessary” and remanded,
explaining: “There is nothing in the record to indicate that the
juvenile court was aware it had such discretion or to indicate the
juvenile court had exercised its discretion.” (Jorge Q., at p. 238.
As in Eduardo D., the court gave no indication that it considered
whether the juvenile court might have adjudicated the petition
differently had it complied with section 702. All that mattered
was whether “[t]he record . . . demonstrate[d] the exercise of
discretion,” and it did not. (Jorge Q., at p. 238.) In Ramon M.,
the court remanded without reciting Manzy W.’s harmless error
standard, but it similarly did not demand any showing that
compliance with section 702 would have resulted in a different
outcome. (Ramon M., at pp. 675–676.
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Finally, in Raymundo M., the Court of Appeal did not
remand, but as the Attorney General acknowledges, it based
that decision on the ground that there was no section 702 error
at all, not on any analysis of Manzy W.’s harmless error
standard. (Raymundo M., supra, 52 Cal.App.5th at pp. 90–93.
In sum, Manzy W. set forth a harmless error standard that does
not incorporate an assessment of whether it is “reasonably
probable that a result more favorable to the [juvenile] would
have been reached in the absence of the error” (Watson, supra,
46 Cal.2d at p. 836), and subsequent Court of Appeal decisions
have applied Manzy W. with that understanding.
Moreover, section 702 error is distinct from other errors
where we apply the Watson standard. The Attorney General
analogizes this case to various cases involving the sentencing of
adults, in which courts have remanded after certain sentencing
errors only upon a showing that a different result might have
been reached absent the error. (See People v. Champion (1995
9 Cal.4th 879, 933–934 (Champion); People v. Price (1991) 1
Cal.4th 324, 492 (Price); People v. Avalos (1984) 37 Cal.3d 216,
233 (Avalos).) But none of those cases involved errors of the kind
at issue here.
In Champion, we held that a trial court’s failure to give
reasons for imposing consecutive sentences was error under a
statute that requires courts to “state the reasons for [their]
sentencing choice[s].” (Pen. Code, § 1170, subd. (c); see
Champion, supra, 9 Cal.4th at pp. 933–934.) In a brief passage,
we held that the failure to state reasons was “harmless” and
declined to remand because the record showed ten aggravating
circumstances that justified imposition of consecutive sentences
while showing no mitigating circumstances. (Champion, at
p. 934.) It was “inconceivable,” we said, that the trial court
17
In re F.M.
Opinion of the Court by Liu, J.
would not have imposed consecutive sentences even if it had
complied with the statutory requirement to state its reasons for
doing so. (Ibid.
In Avalos, the defendant argued that he was entitled to a
remand for resentencing because the trial court improperly
relied on an aggravating circumstance in sentencing him to a
consecutive term. (Avalos, supra, 37 Cal.3d at p. 233.) We
agreed that this was error but, applying Watson, declined to
remand in light of other aggravating factors that would have
justified the same sentence. (Avalos, at p. 233.) Similarly, the
defendant in Price argued that three of the ten reasons relied on
by the trial court in imposing an upper term were not supported
by the record. (Price, supra, 1 Cal.4th at p. 491.) We again
declined to remand, citing Avalos and explaining that “[w]hen a
trial court has given both proper and improper reasons for a
sentence choice, a reviewing court will set aside the sentence
only if it is reasonably probable that the trial court would have
chosen a lesser sentence had it known that some of its reasons
were improper.” (Price, at p. 492, citing Avalos, at p. 233.
The issues presented in Champion, Avalos, and Price did
not have to do with whether a trial court understood the full
extent of its lawful discretion and its obligation to exercise it.
Although the trial courts in those cases did not make explicit the
reasoning for a particular decision or relied on improper reasons
for a decision, there was no suggestion that they were unaware
of the decision they were tasked with making. This distinction
is significant because section 702 manifests a specific legislative
commitment to “ensuring that the juvenile court is aware of, and
actually exercises, its discretion” as to wobblers. (Manzy W.,
supra, 14 Cal.4th at p. 1207). Applying Watson to assess the
likelihood of a more favorable result does not address the risk of
18
In re F.M.
Opinion of the Court by Liu, J.
courts misapprehending the extent of their lawful authority in
this particular context.
Further, there is a practical difference in assessing the
effect of an error when the court has not articulated whether a
discretionary decision was made in the first place, as compared
to when there were errors in a decision the court actually
rendered. In the latter scenario, we may decline to remand
because the record reflects aggravating circumstances so
numerous that it would be “inconceivable” that the trial court
would “impose a different sentence” absent the error. (See
Champion, supra, 9 Cal.4th at p. 934.) By contrast, where the
concern is that no discretionary decision was made, attempting
to discern the likelihood of a “more favorable” decision is a more
speculative inquiry. Instead of hypothesizing what decision the
juvenile court would have made if it had understood the extent
of its lawful authority, reviewing courts have consistently held
that remand is appropriate in these circumstances. (Ante, at
pp. 14–17.
B.
Applying Manzy W., we conclude that a remand is
required on this record. The Court of Appeal justified its refusal
to remand with three considerations: first, that the offenses
F.M. admitted were alleged as felonies in Petitions B and C;
second, that the juvenile court rejected the probation
department’s recommendation to return F.M. to his parents’
custody and to reinstate probation, which would have been
consistent with treating the offenses as misdemeanors; and
third, that the juvenile court directed the probation department
to consider whether to commit F.M. to the custody of the
Division of Juvenile Justice or to send him to a ranch camp,
19
In re F.M.
Opinion of the Court by Liu, J.
when a commitment to the Division could only have been
imposed if the offense were treated as a felony. But similar
considerations were presented in Manzy W.: The offenses at
issue were alleged as felonies (Manzy W., supra, 14 Cal.4th at
p. 1202), and the juvenile court considered imposing (and in fact
imposed) a sentence harsher than that recommended by the
probation department (id. at pp. 1202–1203). Here, as in Manzy
W., these features of the record are not enough to show that the
juvenile court was “aware of, and exercised its discretion” to
treat a wobbler as a misdemeanor or as a felony. (Id. at p. 1209.
The Attorney General says, “That the assault and evasion
offenses were alleged as felonies and the court stated a felony-
level maximum time of confinement is consistent with the court
having understood its discretion to designate the wobbler
offenses as misdemeanors or felonies.” But it is also consistent
with the opposite proposition: that the trial court did not
understand its discretion in treating the wobblers as felonies.
These aspects of the record do not demonstrate the awareness
required by Manzy W. (See Ricky H., supra, 30 Cal.3d at p. 191.
The Attorney General also points to the juvenile court’s
statement in the minute order for Petition B that “[t]he Court
has considered whether the above offense(s) should be felonies
or misdemeanors.” But there are no offenses listed “above” the
statement, only a list of all of the allegations that F.M. was
charged with at the end of the minute order. The statement
could have referred to the three offenses F.M. admitted to in the
hearing or to the full list of charges, which included those that
were dismissed but would be considered in the rendering of a
disposition. The minute order does not specify which wobbler
offenses were considered, and the transcript of the proceedings
does not contain any further clarification or otherwise indicate
20
In re F.M.
Opinion of the Court by Liu, J.
that the juvenile court was aware of its discretion. We have said
that a minute order may not “substitute for a declaration by the
juvenile court as to whether an offense is a misdemeanor or
felony.” (Manzy W., supra, 14 Cal.4th at p. 1208; see Ricky H.,
supra, 30 Cal.3d at p. 191 [finding insufficient a minute order
that “recited that the minor was committed to the Youth
Authority ‘for conviction of [a] felony’ ”].) Here too, the minute
order does not show that the juvenile court was “aware of, and
exercised its discretion.” (Manzy W., at p. 1209.
Further, the language at issue appears only in the minute
order for Petition B; it did not appear in the record of Petition C,
which also involved F.M.’s admission of a wobbler offense. The
juvenile court was required to separately exercise its discretion
as to that offense, and the record contains insufficient indication
that it did so.
F.M. urges us to go beyond Manzy W. to articulate with
more specificity what a juvenile court must say in order to avoid
a remand for a section 702 error. We decline to suggest that any
particular script is necessary to satisfy section 702. The
standard set forth in Manzy W. is well calibrated to resolving
these issues: 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. (Manzy W., supra, 14 Cal.4th at p. 1209.) That standard
was not met here.
21
In re F.M.
Opinion of the Court by Liu, J.
CONCLUSION
We reverse the judgment of the Court of Appeal and
remand for further proceedings consistent with this opinion.
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
22
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion In re F.M.
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 7/26/21 – 6th Dist.
Rehearing Granted
Opinion No. S270907
Date Filed: May 4, 2023
Court: Superior
County: Santa Cruz
Judge: Denine J. Guy
Counsel:
Michael Reed, under appointment by the Supreme Court, for
Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant
Attorney General, Seth K. Schalit and Donna M. Provenzano, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Michael Reed
Attorney at Law
P.O. Box 386
Salinas, CA 93902
(831) 250-0820
Donna M. Provenzano
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3844
Opinion Information
| Date: | Docket Number: |
| Thu, 05/04/2023 | S270907 |
