Opinion
A130298
10-28-2011
In re v. H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. v. H., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. J07005964)
V.H. appeals from jurisdictional and dispositional orders in proceedings commenced under Welfare and Institutions Code section 602. He contends: (1) the court erred in denying his motion to suppress evidence seized after he was detained by police, because the police detained him without reasonable suspicion; and (2) the court erred in failing to declare the offense of carrying a concealed weapon as a misdemeanor or felony (Pen. Code, § 12025, subd. (a)(2); Welf. & Inst. Code, § 702). We will affirm the jurisdictional order, remand the matter for designation of the admitted offense as a felony or misdemeanor under Welfare and Institutions Code section 702, and affirm the disposition order in all other respects.
I. FACTS AND PROCEDURAL HISTORY
In February 2007, the Alameda County Juvenile Court adjudged appellant a ward of the court under Welfare and Institutions Code section 602, after appellant admitted a misdemeanor violation of Penal Code section 32. He was placed on probation with terms and conditions, including that he obey all laws and be of good citizenship and good conduct.
In March 2008, a petition alleged that appellant had violated his probation. An arrest warrant issued after he failed to appear at the revocation hearing, but was recalled after he was taken into custody. In July 2008, another arrest warrant issued after he failed to appear for a hearing.
A. The Current Proceedings - San Francisco
On September 10, 2010, San Francisco Police Officers investigating a shooting arrested appellant for possession of a loaded handgun.
The San Francisco County District Attorney filed a petition under Welfare and Institutions Code section 602 on September 13, 2010. As amended on September 14, the petition alleged that appellant carried a concealed handgun on his person (Pen. Code, § 12025, subd. (a)(2)), carried a loaded firearm in a public place (Pen. Code, § 12031, subd. (a)(2)(F)), and resisted arrest (Pen. Code, § 148, subd. (a)(1)).
Appellant filed a motion to suppress evidence of the loaded handgun, as well as marijuana seized from his person, gunshot residue test results, and his statements to police. The motion was heard at a jurisdictional hearing on October 4, 2010. The parties stipulated that appellant was not subject to a search condition at the time of his detention.
1. Prosecution's Case
San Francisco Police Officer Ritter testified that on September 10, 2010, while he and partner Officer Ravello were on patrol in full police uniform, he received a report from police dispatch that a shooting had occurred at 830 Pacific Street. At about 10:38 p.m., dispatch advised that a five-year-old girl had been shot in the leg with what seemed to be a 9 millimeter or similar gun round.
At approximately 10:40 p.m., Officer Ritter and his partner arrived at 830 Pacific Street, a multi-story apartment complex known as the Ping Yuen housing project. The officers proceeded to a courtyard at the complex, where there is a small playground, and found no one there. Officer Ritter and his partner searched the courtyard area for evidence, while other officers entered the apartment building to contact witnesses.
Around 10:43 p.m., Officer Ritter saw a group of about seven youths, including appellant, enter the courtyard from Pacific Street. Officer Ritter recognized appellant -whom he had met in 2008 and spoken to before - and another individual (R.S.).
As the youths walked in the officers' direction, the officers "got in front of them and said, 'hey, got any guns?'" The group stopped, and appellant looked at the officers. Some of the other boys started "giggling uncomfortably," which "made [the officer] think that anything they said was going to be a lie." Officer Ritter testified: "Three of the males just started giggling, laughing. A couple of the girls eventually said no. [Appellant] and who I guess was his [female] cousin later walked away from the group at that time." Specifically, appellant stopped making eye contact with Officer Ritter, walked around the officers and his friends, and headed toward an exit.
As appellant started to walk away, Officer Ritter told him to stop. The officer called appellant by name and said, "Where are you going? Come back here. You're not free to walk away." The officer acknowledged at trial that his voice was raised and his statement was a command.
Appellant put his arm around his cousin and said something like, "come on cuz, we're leaving, we're leaving." From about 15 feet away, Officer Ritter said: "You can't go. I know who you are. Come back, I want to talk to you." Then the officer took one step in appellant's direction. Officer Ritter testified: "I said, I don't want to chase you. I made a move toward him. As soon as I stepped my one foot toward him, he ran toward the exit."
As appellant ran toward the exit, Officer Ritter ran after him, calling for him to stop. Officer Ritter observed that appellant was holding "his . . . right arm inside of his sweatshirt."
The gate at the exit was closed, forcing appellant back toward the officers. Officer Ritter caught appellant and took him to the ground. The officer drew his weapon "because, at this point, I didn't know why he ran and then we were there for a shooting, so I assumed he had a gun if he was running." Officer Ritter testified that he had not drawn his weapon until appellant was on the ground.
A struggle ensued. According to Officer Ritter: "We tried to get his [appellant's] arms out. He had one arm. We told him to get your arm out of your sweatshirt, which he refused to do. . . . I heard a loud—like a metal object hit the ground after we had said let go of whatever is in your sweatshirt. Then we got his arms out and took him into custody."
The metal object recovered from appellant's sweatshirt was "a faded black semiautomatic handgun." The gun was loaded. About seven minutes had elapsed between the officers' receipt of the report of the shooting and their taking appellant into custody.
Apparently, police later seized the other evidence appellant sought to suppress.
On cross-examination, Officer Ritter stated that he did not know why appellant had previously been arrested or whether appellant was on probation. At the time the officers asked the youths if they had any guns, Officer Ritter had not received a description of anyone involved in the shooting or further information about it.
2. The Defense Case
Appellant's 15-year-old cousin, A.W., testified that she and appellant were at a party in the apartment building on the night of appellant's arrest. They left the party with three teenage boys, proceeded down the elevator, and encountered two police officers, who "asked was it a party." Without responding, A.W., appellant, and their companions kept walking. One of the officers asked appellant by name to "come here." A.W. and appellant were "getting ready to walk out the gate and then that's when [the police] started coming at them and that's when [appellant] tried to go to the gate, and [the police] pulled out they guns and stuff." By this time, A.W. testified, there were five to ten police officers. According to A.W., two of the officers had their guns out before appellant ran from the police, and one of the officers called loudly to appellant, "Come here, mother fucker."
Appellant testified concerning the reasons for his flight. He asserted: "I ran 'cause the police officer told me, like, stop mother fucker, stop mother fucker, and then he walked up on me and I had my arm around my cousin. I'm like, let's go cuz. [¶] And he walked up on me and grabbed me, like, by my hair, kind of by my sweater, kind of like, and I snatched away and took a step back. I kind of took a step back, and then I was - then I'm not I ain't on - I said I wasn't on no probation. [¶] And then he, like, come here - that's when he said, come here mother fucker again, and then I started running. That's when I started running, and before that, he pulled his gun out." Appellant added: "And they already had guns out before that whole thing. They this [sic] flashlights. They were all looking around. There was, like, ten officers." Appellant testified that he thought the officer was going to shoot him.
On cross-examination, appellant acknowledged that another reason he ran from the police was because he had a gun and marijuana on his person.
3. Court's Ruling on the Suppression Motion
The court found that appellant's flight from the officers had not been provoked by the officers. "I cannot find, based on the facts, the evidence that I have before me, that this was a provoked flight situation based on Marshal[l]." (See Marshall v. Teske (2002) 284 F.3d 765 (Marshall).) The court next determined what information Officer Ritter had at the time: "from this police officer's point of view, what the evidence was that there was a shooting, he responds within five minutes, sees the minor, after telling the minor to stop, the minor later gave chase." The court concluded: "And under the totality of the circumstances, the Court would find that there was reasonable suspicion to detain and, ultimately, then probable cause to arrest and, thus, the motion to suppress is denied."
4. Appellant's Admission on the Petition
After the suppression motion was denied, appellant admitted a felony violation of Penal Code section 12025, subdivision (a)(2), for carrying a concealed handgun as alleged in count one of the petition.
Pursuant to the parties' agreement, the court dismissed the remaining two counts and transferred the case to Alameda County for disposition.
B. Current Proceedings - Alameda County Disposition Order
On October 27, 2010, the Alameda County juvenile court declared appellant a ward of the court and reinstated him on probation with terms and conditions.
Appellant thereafter filed this appeal from the denial of his motion to suppress and the disposition order.
II. DISCUSSION
Appellant contends the court erred in denying his motion to suppress evidence and in failing to declare the offense to be a felony or misdemeanor.
A. Motion to Suppress
In our review of the denial of a motion to suppress, we review the court's factual findings for substantial evidence and review de novo whether, on those facts, the requisite legal standard was met. (People v. Parson (2008) 44 Cal.4th 332, 345.) We resolve all factual conflicts in the manner most favorable to the disposition on the suppression motion. (People v. Woods (1999) 21 Cal.4th 668, 674.) Challenges to the admissibility of evidence obtained by police searches and seizures are reviewed under federal constitutional standards. (People v. Bradford (1997) 15 Cal.4th 1229, 1291.) Motions to suppress under Welfare and Institutions Code section 700.1 are reviewed under the same standard as motions to suppress under Penal Code section 1538.5. (See In re Steven H. (1982) 130 Cal.App.3d 449, 453.)
1. The Detention
An encounter between a police officer and a citizen does not trigger Fourth Amendment scrutiny unless the officer, by means of physical force or a show of authority, has in some way restrained the citizen's liberty. (Florida v. Bostick (1991) 501 U.S. 429, 434 (Bostick).) A citizen is detained (or "seized") by police if he is physically held or submits to a display of authority that would indicate to a reasonable person he is not free to leave. (California v. Hodari D. (1991) 499 U.S. 621, 625-626 (Hodari); People v. Harris (1986) 184 Cal.App.3d 1319, 1321.)
"Any inquiry into an alleged seizure must begin by determining when the seizure occurred." (U.S. v. Smith (3d. Cir. 2009) 575 F.3d 308, 312.) "The timing of the seizure is significant - if the seizure occurred after suspicious behavior such as flight, this factors into our analysis of whether there was reasonable suspicion to justify the seizure. But if the seizure occurred before the flight, as the [trial court] found here, then the flight 'plays no role in the reasonable suspicion analysis,' [Citation.] As such, any seizure inquiry has two steps: Was there in fact a seizure? If so, was that seizure reasonable?" (Id. at pp. 312-313.)
Here, a seizure occurred when Officer Ritter grabbed appellant and took him to the ground. No seizure occurred before then, because appellant was not physically held and did not submit to any display of authority. Although Officer Ritter had told appellant earlier that he was not free to leave, and even commanded him to stop with a raised voice, appellant kept on walking. (Hodari, supra, 499 U.S. at pp. 626-629 [no seizure occurred where defendant did not submit to a show of authority enjoining him to halt, until he was tackled by the pursuing police officers].)
It appears that appellant's group, but not appellant himself, stopped when the officers first asked, "Hey got any guns?" In any event, there was no detention at that point, because the circumstances did not present a situation where a reasonable person would think he was not free to leave. Indeed, appellant and his cousin left. Although a reasonable person might think he was not free to leave when the officers later told him to stop, by that point appellant was already walking away and did not thereafter submit to the officers' display of authority.
2. Reasonable Suspicion
For a detention to be lawful under the Fourth Amendment, the officer must be able to point to specific and articulable facts that, giving due weight to the reasonable inferences the officer may draw from those facts in light of experience, reasonably warrant the intrusion. (See generally Terry v. Ohio (1968) 392 U.S. 1, 21; People v. Souza (1994) 9 Cal.4th 224, 230 (Souza).) In particular, an officer may stop and detain a person for questioning or limited investigation if the officer has a "reasonable suspicion," based on specific and articulable facts, that some activity relating to crime has taken place or is occurring or is about to occur, and that the person he intends to stop or detain is involved in that activity. (United States v. Sokolow (1989) 490 U.S. 1, 7-8; Souza, supra, 9 Cal.4th at p. 231 ["A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity"].)
Here, at the time that Officer Ritter grabbed appellant and took him to the ground, the officer had a reasonable suspicion to detain appellant based on several articulable facts to which he testified at the hearing: (1) appellant was present in the area where a child had recently been shot with a gun; (2) it was night; (3) when the officer asked appellant and his several companions if they had guns, some of appellant's companions started "giggling uncomfortably" in a manner that led Officer Ritter to believe they were not going to tell the truth; (4) appellant failed to respond to the officers' inquiry about their being armed with guns; and (5) as soon as Officer Ritter "stepped one foot" toward appellant, appellant ran. In addition, after appellant ran, Officer Ritter observed that appellant was holding his right arm inside of his sweatshirt. Under the totality of the circumstances, Officer Ritter had a reasonable suspicion that appellant was involved in crime that had occurred or was about to occur. (See Illinois v. Wardlow (2000) 528 U.S. 119, 123-125 [defendant's sudden unprovoked flight from police in a high-crime area created a reasonable suspicion justifying a detention]; see also Souza, supra, 9 Cal.4th at pp. 240-241 [late hour and recent crime in the area may be considered in determining if officer had reasonable suspicion].)
Appellant attempts to downplay the significance of his flight, and distinguish Wardlow, by arguing that his flight was provoked by police action. Substantial evidence, however, supports the juvenile court's finding that appellant was not provoked.
The juvenile court stated that it did not find a provoked flight situation based on "Marshal," a case on which the defense had relied. In Marshall, supra, 284 F.3d 765, a 14-year-old boy took off running when he saw masked men in street clothes running toward him with guns. As it turned out, the individuals approaching him were plainclothes police officers. In determining whether the police officers were entitled to qualified immunity in an ensuing civil rights action, the court concluded it was doubtful that the officers had reasonable suspicion to stop Marshall, because his flight was "not 'unprovoked'" and he did what any reasonable person would have done with armed masked men running toward him. We agree with the juvenile court in this case that Marshall is factually distinguishable from the matter at hand.
Appellant argues that his flight was nonetheless "provoked" because of what occurred in the few minutes between the time Officer Ritter first observed appellant and the time appellant ran - in particular, Officer Ritter repeatedly told appellant to stop and took a step toward him. Substantial evidence supports the conclusion that the officers' actions did not provoke appellant to flee, in any sense that would preclude his flight from being considered in deciding whether reasonable suspicion existed.
Appellant criticizes the court for addressing only Marshall in deciding that appellant's flight was unprovoked. At the hearing, however, the judge explained, without objection: "I wanted to take another look at [Marshall] because that seems to be the main case that minor's counsel is relying on for whether or not the facts of this case fit into a provoked flight situation." (Italics added.)
Although Officer Ritter and the defense witnesses had somewhat different accounts of what occurred, the juvenile court implicitly found Officer Ritter's version more credible. We defer to the court's implicit credibility findings and, in any event, view the evidence in the light most favorable to the prosecution. (See Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968; People v. Johnson (1980) 26 Cal.3d 557, 575-578.) According to Officer Ritter's testimony, the officer did not threaten appellant with harm or take a step in such a manner that would prompt a reasonable person to discontinue walking and instead bolt toward the courtyard exit.
Appellant argues that Officer Ritter did not have reasonable suspicion to tell appellant to stop before he ran. That, however, is not the point under the circumstances of this case. An officer must have reasonable suspicion to detain, but as stated ante no detention occurred in this case until after appellant ran.
On a related note, appellant argues that he had a constitutional right to go about his business when Officer Ritter told him to stop, and his exercise of that right cannot be used to create reasonable suspicion. His argument is misplaced. Individuals may ignore police inquiries and go on their way, and their refusal to cooperate will not provide the police justification to stop them. (Florida v. Royer (1983) 460 U.S. 491, 497-498; Bostick, supra, 501 U.S. at p. 437.) But no one argues that appellant's act of walking away from Officer Ritter is what justified the officer in taking appellant to the ground, and appellants' exercise of this constitutional right to walk away did not insulate him from the ramifications of what he did thereafter. Appellant's breaking into a run when the officer took a step toward him is not merely continuing to go about one's business, but fleeing; and with his flight, appellant's earlier act in refusing to answer the officer's question about having a gun takes on additional significance. Collectively, appellant's conduct under the circumstances constituted reasonable suspicion to detain for further investigation.
Appellant refers us to U.S. v. Saroeuth (E.D. Pa. Apr. 12, 2011) 2011 U.S. Dist. LEXIS 40018 (Saroeuth). There, police received a dispatch based on an anonymous tip about a large fight, someone with a gun, and several armed individuals. The police arrived to find a large group dispersing but no fight in progress. The officers recognized the defendant and asked him, "everything all right, everything cool?" The defendant promptly got on his bicycle and rode away, holding his right pants pocket. The police pursued and eventually detained him at gunpoint, recovering a gun from his person. The court found that the detention began once the officers made a radio call that they were in pursuit of the defendant, after he had peddled away on his bicycle. (Id. at *15.) The court concluded that the officers lacked reasonable suspicion for the detention because the defendant, by riding his bicycle away from the scene, was not fleeing the scene, but merely going about his business in accordance with his constitutional rights. (Id. at *16.) Thus, his act of leaving the scene could not contribute to a finding of reasonable suspicion.
The analysis in Saroeuth is less than clear in some respects. The court stated that the seizure began upon the police radio call concerning the pursuit of Saroeuth, immediately after Saroeuth peddled away. (Id. at *16.) In the next paragraph, however, the court stated it could not factor the provoked flight into its analysis of whether reasonable suspicion existed because the flight "occurred after the officers' actions which constituted detention of Defendant." (Id. at *17, italics in original.) The two statements are factually inconsistent, unless the court meant to divide Saroeuth's peddling into two parts: the peddling before the officer's radio call, which was insufficient because it merely reflected Saroeuth going about his business, and the peddling and running after the radio call, which was irrelevant because the detention had already begun. This analysis, however, would still be incorrect under the law: there was no detention until Saroeuth was physically held or submitted to a display of authority, which did not occur until he later dropped to the ground after an officer drew his gun. The court in Saroeuth considered the police pursuit to constitute a detention because a reasonable person would not think he was free to go about his business at that point (id. at *15-16); although that would establish the requisite show of authority, without Saroeuth's submission to that show of authority there was no detention within the meaning of the Fourth Amendment.
Saroeuth is distinguishable from the matter at hand. The relevant point in Saroeuth was that peddling away, for Saroeuth, was merely an act of going about his business, akin to appellant's walking away from Officer Ritter's initial commands to stop. But appellant in the case before us did more than that. He did not merely walk away, but broke into a run, which (unlike Saroeuth's peddling) may reasonably be construed as flight under the circumstances of this case.
Appellant's reliance on People v. Perrusquia (2007) 150 Cal.App.4th 228 (Perrusquia) is also misplaced. There, the defendant was sitting in a parked car in a parking lot. When officers approached, he got out of the car and walked away, ignoring their orders to stop. The officers had no information that a crime had been committed at that particular location, but they pursued and seized him nonetheless. (Id. at p. 231.) The court held that the officers did not have a reasonable suspicion to justify the detention. (Id. at p. 234.)
Perrusquia is distinguishable from the matter before us. Here, the officers had just received information about a shooting in the area in which they encountered appellant, who gave no response when asked if he was carrying a gun. Appellant not only walked away despite the officer's command to stop, he broke into a run, holding his arm inside his sweatshirt. Running away in these circumstances is not merely going about one's business. (Wardlow, supra, 528 U.S. at p. 125 ["Flight, by its very nature, is not 'going about one's business' "].)
Appellant fails to establish error.
Appellant further contends the prosecutor failed to make an adequate showing as to the basis for Officer Ritter's information that a shooting had occurred at 830 Pacific Street. (See People v. Ramirez (1983) 34 Cal.3d 541, 551-552.) The argument is unavailing. Officer Ritter testified that he obtained the information about the shooting from dispatch, who directed him to 830 Pacific Street, where the shooting of a child had occurred. The "CAD" report and tape indicated that the original call reporting this shooting had been made by a "Dr. Woo" from the hospital that was apparently treating the victim. Officer Ritter believed that the shooting had just occurred, because he was unaware that the originating report was from the hospital; we also note that, as Officer Ritter knew, at least 10 other police units were dispatched to the scene, suggesting that the matter had not occurred substantially earlier. Defense counsel received the CAD report and tape from the prosecutor, and counsel cross-examined Officer Ritter about the CAD report at the suppression hearing, but appellant has not included the CAD report in the appellate record.
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B. Wobbler as Felony or Misdemeanor
Appellant contends the juvenile court erred in failing to find on the record whether appellant's admitted offense of carrying a concealed weapon was a misdemeanor or a felony.
Possessing a concealed weapon is a "wobbler," in that it may be punished as either a misdemeanor or a felony. (Pen. Code, § 12025, subd. (a)(2), subd. (b)(6).) Welfare and Institutions Code section 702 provides: "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."
A more thorough statement of the requirement is set forth in rule 5.778(f) of the California Rules of Court, which reads: "On an admission or plea of no contest, the court must make the following findings noted in the minutes of the court: . . . (9) In a section 602 matter, the degree of the offense and whether it would be a misdemeanor or felony had the offense been committed by an adult. If any offense may be found to be either a felony or misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration and must state its determination as to whether the offense is a misdemeanor or a felony. These determinations may be deferred until the disposition hearing." (Italics added.)
The purpose of requiring this finding on the record is to ensure that the court is aware of and exercises its discretion in determining the offense to be a misdemeanor or a felony. (In re Manzy W. (1997) 14 Cal.4th 1199, 1206-1207.) Thus, the requirement is unmet if the record lacks an indication that the court understood and exercised this discretion. (In re Ricky H. (1981) 30 Cal.3d 176, 191 [court on remand must determine the character of the offense as felony or misdemeanor, even though the offense was described as a felony in the petition and appellant admitted the truth of the charge, and the maximum period of confinement was set at the felony level]; In re Eduardo D. (2000) 81 Cal.App.4th 545, 549 [remand to juvenile court to determine whether offense was felony or misdemeanor, even though the minute order reflecting the offense as a felony and the minor's period of confinement was based on the felony period], disapproved on other grounds by In re Jesus O. (2007) 40 Cal.4th 859, 867; In re Jacob M. (1987) 195 Cal.App.3d 58, 63-65 [matter remanded for the court to designate offense as felony or misdemeanor, even though minute order indicated the offense to be a felony and court found at disposition that the offense was a felony, where the record did not indicate the court's awareness of its discretion to treat the offense as a misdemeanor].)
In the matter before us, however, the record discloses not merely that the offense was charged in the petition as a felony, admitted by appellant as a felony, and announced by the court at the disposition hearing as a felony, but also that appellant's admission of the offense as a felony was part of a negotiated resolution by which the prosecutor agreed to dismiss two other felony allegations. Based on the record before us, therefore, it appears all parties agreed at the jurisdictional hearing that, as a fundamental matter of the admission itself, the admitted offense would constitute a felony.
Indeed, the parties consistently treated the admitted offense as a felony. Defense counsel advised appellant at the end of the jurisdictional hearing that he would have to provide a DNA sample because the violation was "a felony," and the prosecutor objected to appellant's release pending transfer of the case to Alameda County because he had been convicted of a "felony." At the disposition hearing after appellant's transfer to Alameda County, the probation report and disposition order provided that appellant had admitted a felony possession of a firearm. The court was advised by the prosecutor that the admitted offense was a felony, and the defense did not object. By the time the matter arrived for disposition in Alameda County, it had already been declared a felony by the parties and the San Francisco court.
Nonetheless, we believe we must remand the matter to the Alameda County juvenile court for compliance with Welfare and Institutions Code section 702. Although it may be surmised that the parties agreed the admitted offense would constitute a felony as a condition of the negotiated resolution of the petition, no express statement to that effect, or any waiver of the statutory requirement, appears in the record. Moreover, we question whether the parties may stipulate away the discretion given the juvenile court to consider whether the admitted offense does, in fact, constitute a felony rather than a misdemeanor. Accordingly, upon remand the court shall consider whether appellant's admitted offense should be considered a felony or a misdemeanor and, at a hearing for that purpose, state on the record that it has made such a consideration and whether it determines the offense to be a felony or misdemeanor.
We acknowledge that the procedural context of this case makes the Alameda County juvenile court's task upon remand rather unusual, and not as a result of its own doing. The San Francisco juvenile court would be in a better position to determine whether the offense should be designated a felony or misdemeanor, because it received the evidence at the jurisdictional hearing. Furthermore, any negotiated resolution of the petition would have occurred in the San Francisco court. Remand must be to the Alameda County juvenile court, however, since the appeal was taken in Alameda County and, moreover, the matter was transferred to that court. (Welf. & Inst. Code, § 750; In re Brandon H. (2002) 99 Cal.App.4th 1153, 1156.) We also recognize there was really no reason for the Alameda County juvenile court to suspect that the judicial obligation under Welfare and Institutions Code section 702 fell upon its shoulders, since it received the matter from San Francisco County as an admitted felony and no one raised the issue at the disposition hearing. Nevertheless, there being no apparent exception to the mandate of Welfare and Institution Code section 702, we must remand to the Alameda County juvenile court for the required determination.
III. DISPOSITION
The jurisdictional order is affirmed. The matter is remanded for consideration of whether the admitted offense constitutes a felony or misdemeanor in compliance with Welfare and Institutions Code section 702. The disposition order is in all other respects affirmed.
NEEDHAM, J.
We concur.
SIMONS, Acting P. J.
BRUINIERS, J.