Filed 2/28/24 In re E.Y. CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re E.Y., a Person Coming 

Under the Juvenile Court Law.

 B325891

 (Los Angeles County

 Superior Ct. No. MJ25112)

THE PEOPLE,

Plaintiff and Respondent,

v.

E.Y.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, David Yaroslavsky, Judge. Affirmed.

Mary Bernstein, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 
2

Attorney General, Steven D. Matthews and Ryan M. Smith, 

Deputy Attorneys General.

* * * * * *

Minor E.Y. (minor) appeals from an order of the juvenile 

court that he committed a felony, claiming it was error by the 

court not to make an explicit declaration that the offense would 

be characterized as a felony rather than as a misdemeanor. We 

find any error harmless and affirm.

FACTUAL BACKGROUND

While performing his duties, a maintenance worker was 

approached and followed by minor in a manner that concerned 

the worker. Eventually, the worker asked minor to leave and 

warned the police would be called. In response, minor grabbed a 

box cutter from the worker’s golf cart-type vehicle, extended the 

blade, and threatened the worker by lunging at him and chasing 

him around the cart. Minor ran off, the worker contacted police

and identified minor as the person who attacked him.

A petition was filed under Welfare and Institutions Code

section 602,

1 alleging minor, a 15-year-old, committed assault 

1 Welfare and Institutions Code section 602, subdivision (a), 

states: “[A]ny minor who is between 12 years of age and 17 years 

of age, inclusive, when he or she violates any law of this state or 

of the United States or any ordinance of any city or county of this 

state defining crime other than an ordinance establishing a 

curfew based solely on age, is within the jurisdiction of the 
3

with a deadly weapon, a box cutter, in violation of Penal Code 

section 245, subdivision (a)(1).

2 At the jurisdictional hearing, the 

juvenile court sustained the petition and declared minor a ward 

of the court, finding the offense was a felony.

Minor filed a timely notice of appeal.

CONTENTIONS ON APPEAL

Minor contends the juvenile court erred by failing to make 

a formal declaration under section 702 that his offense was a 

felony.

DISCUSSION

I. Applicable law

“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.” (§ 702.) The court is required to make 

an “explicit declaration” whether a so-called wobbler offense is a 

felony or a misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199, 

juvenile court, which may adjudge the minor to be a ward of the 

court.”

Undesignated statutory references are to the Welfare and 

Institutions Code, unless otherwise noted.

2 Penal Code section 245, subdivision (a)(1), states: “Any 

person who commits an assault upon the person of another with a 

deadly weapon or instrument other than a firearm shall be 

punished by imprisonment in the state prison for two, three, or 

four years, or in a county jail for not exceeding one year, or by a 

fine not exceeding ten thousand dollars ($10,000), or by both the 

fine and imprisonment.”
4

1204 (Manzy W.).) “[N]either 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.” (Id. at p. 1208.)

Remand, however, is not automatic when the court fails to 

make the formal declaration under section 702. (Manzy W., 

supra, 14 Cal.4th at p. 1209.) When the record in a given case 

shows 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 the wobbler, failure to 

literally comply with the statute is harmless error and remand 

would be redundant. (Ibid.)

II. Any error was harmless

Minor was charged with violating Penal Code section 245, 

subdivision (a), punishable as either a felony or a misdemeanor, 

and was thus subject to Welfare and Institutions Code section 

702. (In re Brandon T. (2011) 191 Cal.App.4th 1491, 1495, fn. 4.)

Here the trial court declared the offense to be a felony at the 

conclusion of the hearing when it sustained the petition, saying, 

“In count 1, a felony, the evidence does establish beyond a 

reasonable doubt . . . that the minor did act with a deadly weapon 

other than a firearm . . . ,” and adding that minor’s act of chasing 

the worker with the box cutter “by nature would directly and 

probably result in the application of force to someone.” Defense 

counsel then asked the court to reduce minor’s offense to a 

misdemeanor under Penal Code section 17, subdivision (b).3 The 

3 Penal Code section 17, subdivision (b)(5) authorizes a court, 

at or before the preliminary hearing, to determine that a wobbler 

is a misdemeanor.
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court considered and denied the request “based on the nature of 

the assault in this case.”

When the court considers reducing an offense from a felony 

to a misdemeanor, it reflects the court’s understanding that the 

offense is a wobbler (In re Raymundo M. (2020) 52 Cal.App.5th 

78, 93), as courts do not have the authority to reduce straight 

felonies to misdemeanors. Only wobblers can be reduced. 

(Sannmann v. Department of Justice (2020) 47 Cal.App.5th 676, 

683.)

In re Raymundo M. illustrates that addressing the issue of 

a wobbler in a motion to reduce the offense under Penal Code 

section 17 suffices to demonstrate the court’s awareness of and 

exercise of discretion on the issue. (In re Raymundo M., supra, 52 

Cal.App.5th at p. 93.) Here, as in Raymundo M., and unlike in 

Manzy W., the record demonstrates the juvenile court complied 

with the declaration requirement under section 702. (In re 

Raymundo M., supra, 52 Cal.App.5th at p. 90.) First, the petition 

alleged minor committed assault with a deadly weapon, which 

was listed as a “felony.” In addition, at the jurisdictional hearing, 

the court acknowledged on the record that the true finding was a 

“felony.”

Moreover, as Raymundo M. provided, “[e]ven more 

fundamentally, the fact the court was considering reducing the 

assault count to a misdemeanor at all reflects the court’s

understanding that the offense was a wobbler.” (In re 

Raymundo M., supra, 52 Cal.App.5th at p. 93.) Here, defense 

counsel asked the court to reduce the count to a misdemeanor. 

The court indicated that it “considered” the request, but denied it 

based upon minor’s actions during the assault. Thus, the court 
6

was aware the offense was a wobbler and properly exercised its 

discretion when it declared the offense a felony.

Accordingly, the juvenile court here did declare the offense 

to be a felony. Because the court complied with the declaration 

requirement under section 702, remand is unnecessary.

It is noteworthy that the May 31, 2019 minute order states: 

“The offense is declared to be a felony.”

Even if the juvenile court’s statements were insufficient to 

meet the declaration requirement of section 702, remand is not 

required because the record as a whole establishes that the 

juvenile court was aware of its discretion to treat the offense in 

count 1 as a misdemeanor and declined to exercise that 

discretion. (See Manzy W., supra, 14 Cal.4th at p. 1209.)

Because the court was aware of its sentencing discretion, 

any error in failing to explicitly state its finding that the offense 

was a felony is harmless and remand is unnecessary.

DISPOSITION

The juvenile court’s order is affirmed.

________________________

CHAVEZ, J.

We concur:

________________________

LUI, P. J.

________________________

ASHMANN-GERST, J.