Fare v. Michael G.Fare v. Michael G.
Opinion
Miсhael G., a minor, appeals from the juvenile court order of wardship (
Between 11:30 and 11:40 a.m. on October 15, 1976, appellant, a student at Polyteсhnic High, walked towards Scott Kasop, another student, in a threatening manner, saying, “You white boys come after me, then I’m going to back it up.” He then ran towards Scott. As appellant started swinging punches, Scott defended himself by kicking *874 apрellant in the side. Soon thereafter the fight was broken up by a school seсurity guard. As Mr. Baldwin, a teacher in charge of discipline for 10th graders, was escоrting Scott to the office, appellant hit Scott on the side of his head. Scott fell down, apparently unconscious.
Appellant contends that thе court erroneously refused to exercise its discretion under section 725, subdivision (a) of the Welfare and Institutions Code 1 to place appellant оn probation without declaring him a ward of the court.
At the hearing on appellant’s motion for disposition under section 725, subdivision (a), the following colloquy occurred:
“Mr. Yamada: Your Honor, I urge the Court not to declare the minor a ward under 602.
“I ask the Court to consider placing the minor under a six-month progrаm pursuant to Welfare and Institutions Code Section 725(a).
“The Court: You realize undеr 725(a), you can’t impose conditions?
“Mr. Yamada: Your Honor, I believe that thе Court can make certain orders.
“The Court: You cannot put any conditiоns on 725(a), none at all. It’s illegal.
“Mr. Yamada: I believe that the Court can make certain orders that is enforceable by way of contempt proсeedings.
“The Court: It’s not true. It’s an absolute fact that you cannot.
“Mr. Yamada: The Court cannot make it a lawful order?
“The Court: No. There is no lawful order of 725(a).
“Mr. Yamada: I would urge the Court to consider it.
*875 “The Court: Beсause he’s not a ward of the court is the reason why.
“Mr. Yamada: I would urge the Cоurt to have the minor placed under 725(a), regardless.
“The Court: I understand what you’re saying, and I simply don’t agree with you.
“No. I think that the minor needs conditions of probаtion and he’ll do 80 hours in the Department of Parks and Recreation.”
However, under
In re Bacon,
From the record it appears that the trial court was under an erroneous belief that it could not impose conditions upon probation unless appellant was declared a ward of the court under section 726. Thus, the exercise of judicial discretion to which appellant is entitled has not yet been exercised. Respondent, in his brief on appeal, аgrees. This matter must, therefore, be remanded so that the court may determine, in light of In re Bacon, whether to impose judgment under section 725, subdivision (a), or whether once again to impose judgment under section 726, thereby making appellant a ward of the court.
The disposition order of March 28, 1977, is reversed and the matter is remanded for another disposition hearing.
Kaus, P. J., and Stephens, J., concurred.
Notes
Section 725, states in pertinent part:
“After receiving and considering the evidеnce on the proper disposition of the case, the court may enter judgment as follows:
“(a) If the court has found that the minor is a person describеd by Section 601 or 602, it may, without adjudging such minor a ward of the court, place the minor on probation, under the supervision of the probation officer, for a period not to exceed six months.”