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.
1

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 
In re F.M.

Opinion of the Court by Liu, J.

2

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 
In re F.M.

Opinion of the Court by Liu, J.

3

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, 
In re F.M.

Opinion of the Court by Liu, J.

4

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.) 
In re F.M.

Opinion of the Court by Liu, J.

5

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 
In re F.M.

Opinion of the Court by Liu, J.

6

“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 
In re F.M.

Opinion of the Court by Liu, J.

7

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 
In re F.M.

Opinion of the Court by Liu, J.

8

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. 
In re F.M.

Opinion of the Court by Liu, J.

9

(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 
In re F.M.

Opinion of the Court by Liu, J.

10

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 
In re F.M.

Opinion of the Court by Liu, J.

11

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. 
In re F.M.

Opinion of the Court by Liu, J.

12

(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.)
In re F.M.

Opinion of the Court by Liu, J.

13

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.” 
In re F.M.

Opinion of the Court by Liu, J.

14

(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 
In re F.M.

Opinion of the Court by Liu, J.

15

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 
In re F.M.

Opinion of the Court by Liu, J.

16

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-therecord 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.)
In re F.M.

Opinion of the Court by Liu, J.

17

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 
In re F.M.

Opinion of the Court by Liu, J.

18

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 
In re F.M.

Opinion of the Court by Liu, J.

19

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, 
In re F.M.

Opinion of the Court by Liu, J.

20

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 felonylevel 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
In re F.M.

Opinion of the Court by Liu, J.

21

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.
In re F.M.

Opinion of the Court by Liu, J.

22

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.
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