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Filed 9/14/23 In re Frank J. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re FRANK J., a Person Coming 

Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANK J.,

Defendant and Appellant.

 A166039

 (Contra Costa County

 Super. Ct. No. J2200065)

MEMORANDUM OPINION1

Frank J. (Minor) appeals from the disposition order entered by the 

juvenile court after it sustained a count of carrying a loaded firearm in a 

public place (Pen. Code, § 25850, subd. (a)). His sole argument is that the 

juvenile court erred by failing to declare whether his offense was a 

misdemeanor or felony, as it was required to do under section 702 of the 

Welfare and Institutions Code.2 We agree with Minor and the People that 

1 We resolve this case by a memorandum opinion pursuant to 

California Standards of Judicial Administration, standard 8.1(1), (2). 

2 Undesignated statutory references are to the Welfare and Institution 

Code.
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this was error and that the proper remedy is to remand the matter to the 

juvenile court. 

A supplemental wardship petition3 was filed against Minor on July 7, 

2022, alleging that he committed two new felony offenses: carrying a loaded 

firearm not registered to him (Pen. Code, § 25850, subds. (a) and (c)(6), count 

1) and carrying a loaded firearm in a public place (Pen. Code, § 25850, subd. 

(a), count 2). At a contested jurisdiction hearing, the juvenile court sustained 

count 2 and found count 1 not sustained. At disposition on August 16, 2022, 

the juvenile court continued Minor’s wardship with no termination date and 

committed Minor to a county institution for a period not to exceed two years 

and 184 days, or until age 23, whichever comes first. At no point did the 

juvenile court declare whether count 2 was a misdemeanor or felony. 

A violation of Penal Code section 25850, subdivision (a), may be 

punished as a felony, a misdemeanor, or an alternate felony/misdemeanor, 

commonly known as a “wobbler” offense, depending on certain circumstances. 

(Pen. Code, § 25850, subd. (c); In re D.D. (2015) 234 Cal.App.4th 824, 829.) 

Section 702 provides that if a minor “is found to have committed an offense 

which would in the case of an adult be punished alternatively as a felony or a 

misdemeanor, the court shall declare the offense to be a misdemeanor or 

felony.” The requirement imposed by section 702 is “ ‘obligatory’ rather than 

‘merely “directory,” ’ ” and “requires an explicit declaration,” which must be 

made at or before disposition. (In re G.C. (2020) 8 Cal.5th 1119, 1125.) 

“ ‘[N]either the pleading, the minute order, nor the setting of a felony-level 

3 Before the supplemental petition was filed, Minor had admitted to 

misdemeanor counts of evading a peace officer (Veh. Code, § 2800.2, subd. (a)) 

and receiving stolen property (Pen. Code, § 496d); had been adjudged a ward 

of the court with no termination date; and had been placed on probation. 
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period of confinement may substitute’ for the required declaration.” (In re 

F.M. (2023) 14 Cal.5th 701, 712 (F.M.), quoting In re Manzy W. (1997) 14 

Cal.4th 1199, 1208.) Accordingly, the juvenile court’s failure to declare 

whether count 2 was a misdemeanor or a felony was error.

Remand for compliance with section 702 is required “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.’ ” 

(F.M., supra, 14 Cal.5th at p. 712 [reaffirming Manzy W.].) Both parties 

assert that remand is required here; based on our review of the record, we 

agree with them.

DISPOSITION

The matter is remanded to the juvenile court for it to declare Minor’s 

offense to be a felony or misdemeanor. If upon remand the court declares the 

offense to be a misdemeanor, then the court shall recalculate the maximum 

term of confinement under section 726, subdivision (d). 
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_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, P.J.

_________________________

Markman, J.*

A166039, People v. Frank J.

* Judge of the Alameda Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.