In In re F.M., the Supreme Court today holds that a violation of a statute mandating a superior court to declare a minor’s offense to be a felony or misdemeanor when the offense could be either — what is known as a wobbler — requires a remand when the record doesn’t clearly show an awareness and an actual exercise of discretion to treat the offense as one or the other. Reversal is necessary even if there is not “a reasonable probability that [the minor] would have received a more lenient sentence but for the error.”

The court’s unanimous opinion by Justice Goodwin Liu notes that since enactment of the statute (Welfare and Institutions Code section 702), “we have thrice remanded for further proceedings to remedy noncompliance with its express declaration requirement.” It does so for a fourth time in F.M. Although the superior court in the case certainly treated the juvenile’s offenses as felonies, the opinion concludes it isn’t clear that the court understood “its discretion in treating the wobblers as felonies.” The Supreme Court does not, however, “suggest that any particular script is necessary to satisfy section 702.”

The court reaches the issue even though it wasn’t raised until appeal. Applying the normal appellate forfeiture rule, the court says, “would 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.”

The court reverses the Sixth District Court of Appeal’s unpublished opinion.