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Filed 11/13/23 In re J.J. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT

(Sacramento)

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In re J.J., a Person Coming Under the Juvenile Court 

Law.

C098529

THE PEOPLE,

Plaintiff and Respondent,

v.

J.J.,

Defendant and Appellant.

(Super. Ct. No. JV142066)

J.J. (minor) appeals from the disposition order entered by the juvenile court after it 

sustained one count of robbery and one count of assault by means of force likely to 

produce great bodily injury. Minor’s sole argument is that the juvenile court erred in 

failing to declare whether her assault offense was a misdemeanor or a felony, as it was 

required to under section 702 of the Welfare and Institutions Code. We agree with minor 

and the People that this was error. 
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A wardship petition was filed against minor alleging she committed robbery and 

assault. At a contested jurisdiction hearing in February 2023, the juvenile court sustained 

both counts. During the March 2023 disposition hearing, the court adjudged minor to be 

a ward of the court and placed her on probation. At no point did the court declare 

whether the assault count was a misdemeanor or felony.

A violation of Penal Code section 245, subdivision (a) may be punished as a 

felony or a misdemeanor. (Pen. Code, § 245, subd. (a)(4).) Welfare and Institutions 

Code section 702 provides that if a “minor is found to have committed an offense [that]

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 Welfare and Institutions Code section 702 is “ ‘obligatory’ rather than ‘merely 

“directory,” ’ ” and “requires an explicit declaration” that 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 period of . . . confinement may substitute’ 

for the required declaration.” (In re F.M. (2023) 14 Cal.5th 701, 712, quoting 

In re Manzy W. (1997) 14 Cal.4th 1199, 1208.) As such, the juvenile court’s failure to 

declare whether the assault count was a misdemeanor or felony was error.

Remand for compliance with Welfare and Institutions Code 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.’ ” (In re F.M., supra, 14 Cal.5th at p. 712 [reaffirming In re Manzy W.].) Both 

parties argue that remand is required here, and based on our review of the record, we 

agree.
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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 a misdemeanor, 

then the court shall recalculate the maximum term of confinement under Welfare and 

Institutions Code section 726, subdivision (d).

/s/ 

ROBIE, Acting P. J.

We concur:

/s/ 

MAURO, J.

/s/ 

KRAUSE, J.