Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2007024105, Manuel J. Covarrubias, Judge.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, John R. Gorey, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Alexis M. appeals from the order declaring him a ward of the court (Welf. & Inst. Code, § 602) following his admission of a petition alleging that he committed misdemeanor vandalism. (Pen. Code, § 594, subd. (b)(2)(A).) The court placed him at home on probation. Appellant contends that his admission of the petition was not intelligent, knowing and voluntary. We reverse.
FACTS AND PROCEDURAL BACKGROUND
On April 12, 2007, appellant used a permanent marker to place gang graffiti on the walls of a restroom in a Chuck E. Cheese's restaurant. The restroom required painting to cover the graffiti.
On July 6, 2007, a petition was filed under Welfare and Institutions Code section 602, which alleged that appellant had committed a misdemeanor vandalism. (Pen. Code, § 594, subd. (b)(2)(A).) After appellant's counsel informed the court that he would admit the vandalism charge, the prosecutor addressed appellant as follows:
"By admitting that you have committed a crime, there's going to be some possible consequences, which include you could be on probation until you're 21 years old, and you would be facing a maximum possible time in custody of one year. [¶] If you did not want to admit that you committed the crime, you could have a court trial, and the judge would decide whether or not you committed the crime. [¶] But because you're admitting the charge, there's not going to be a trial. Is that all right with you?" Appellant responded, "Yes," and admitted the charge against him.
The prosecutor then "invited[d] a stipulation as to the factual basis and a joinder in the waivers and admissions." Appellant's counsel responded, "So stipulated by the defense." The court then stated: "The Court does find the minor has made a knowing, voluntary, and intelligent waiver of his constitutional rights. He understands the charge against him. He understands the consequences of an admission to said charge."
DISCUSSION
Appellant contends his plea and admission were invalid because the trial court failed to advise him of his rights to confront witnesses and against self-incrimination. We agree.
A defendant seeking to plead guilty is denied due process under the federal Constitution unless the plea is voluntary and knowing. “Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination . . . . [Citation.] Second, is the right to trial by jury. [Citation.] Third, is the right to confront one's accusers.” (Boykin v. Alabama (1969) 395 U.S. 238, 243; In re Tahl (1969) 1 Cal.3d 122, overruled on other grounds in Mills v. Municipal Court (1973) 10 Cal.3d 288.) The Boykin-Tahl requirements apply to an admission to the allegations of a petition in juvenile court. (In re Ronald E. (1977) 19 Cal.3d 315, 321, 324-325, questioned on another ground in People v. Howard (1992) 1 Cal.4th 1132, 1175-1179.)
Respondent concedes that when appellant admitted the petition, he was not specifically advised of his rights of confrontation and against self-incrimination. The advisement was thus incomplete. (See People v. Mosby (2004) 33 Cal.4th 353, 361.) Relying upon People v. Howard (1992) 1 Cal.4th 1132, 1175-1179, respondent asserts that the admission was voluntary and intelligent under the totality of the circumstances.
In People v. Mosby, supra, 33 Cal.4th 353, 361, our Supreme Court addressed the process a reviewing court should follow to assess whether the defendant's "admission of [a] prior conviction was intelligent and voluntary in light of the totality of circumstances" in those cases where "the transcript does not reveal complete advisements and waivers." In such cases, the court must examine "the whole record, instead of just the record of the plea colloquy" to determine whether the "admission . . . was intelligent and voluntary in light of the totality of circumstances." (Ibid.; see also id. at pp. 362-365.) The factors the court can consider include the defendant's participation in a trial immediately prior to entering a plea and the defendant's prior experience in the criminal justice system from which he may have learned of his constitutional rights. (Id. at p. 365.)
In several cases involving incomplete advisements, reviewing courts have found a knowing and intelligent waiver based on the totality of the circumstances. For example, in Howard, the court relied on the facts that the defendant had admitted a prior conviction and that he did so while "preparing for trial on charges to which he had pled not guilty" to find that his admission of the prior was voluntary and intelligent. (People v. Howard, supra, 1 Cal.4th 1132, 1180.) The Howard case is inapt. Unlike the Howard defendant, appellant was not preparing for any trial or adjudication when he admitted the current substantive charge against him. He also lacked a prior conviction or sustained petition to indicate his familiarity with his rights of confrontation and against self-incrimination.
In Mosby, the court concluded that under the totality of the circumstances, the defendant's admission of a prior conviction was voluntarily and intelligently made although he was not advised of his rights to remain silent and to confront witnesses. The Mosby defendant admitted his prior conviction immediately after the jury found him guilty on the current substantive offense. The reviewing court concluded that because the defendant obtained his prior conviction after entering a plea of guilty, "he would have [previously] received Boykin-Tahl advisements" for "the very conviction that he was now admitting." (People v. Mosby, supra, 33 Cal.4th 353, 365.) The Mosby court also observed that the defendant "had just participated in a jury trial where he had confronted witnesses and remained silent." (Ibid.) Contrary to the Mosby defendant, appellant admitted the current, and apparently the first, substantive charge against him rather than a prior conviction; he did not admit that charge immediately after being tried for a separate offense. Rather, the record suggests there had never been any prior petitions in which appellant had been named as a person who fell within the provisions of Welfare and Institutions Code section 602.
There are no facts comparable to those in Mosby or Howard or other cases to suggest that appellant understood that he was waiving his rights to confront adverse witnesses and against self-incrimination. The record "is inadequate to allow us to conclude that appellant entered his [admission] understandingly and voluntarily." (People v. Christian (2005) 125 Cal.App.4th 688, 698.)
The judgment is reversed.
We concur: GILBERT, P.J., PERREN, J.