Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. J42691
ELIA, J.Randy L. (Randy) appeals from an order declaring him a ward of the juvenile court after the court sustained a Welfare and Institutions Code section 602 petition. A first amended petition alleged that Randy brandished a firearm on August 29, 2007 (Pen. Code, § 417, subd, (a)(2), count one); brandished a firearm on August 23, 2007 (Pen. Code, § 417, subd. (a)(2), count two); and challenged another to a fight on school grounds (Pen. Code, § 415.5, subd. (a)(1), count three).
On November 20, 2007, Randy admitted the allegation in count two of the amended petition that he brandished a firearm. The remaining charges were dismissed. The court informed Randy that the maximum time of confinement would be one year.
At the December 5, 2007 disposition hearing, the court ordered Randy to spend 34 days in juvenile hall with credit for time served. Further, the court ordered that Randy be removed from the custody of his parents. The court placed Randy on probation and ordered that he participate in a placement program.
Randy was accepted into the Rite of Passage program in San Andreas. The court approved this case plan on December 20, 2007. It appears that Randy was placed on the waiting list, but because the "pick-up date" continuously changed, a new referral was sent to Courage to Change in Exeter. On January 30, 2008, Randy was interviewed and accepted into that program. On January 31, 2008, he entered the program. On February 4, 2008, juvenile probation filed a supplemental Welfare and Institutions Code section 777 petition alleging that Randy had violated his terms of probation by absconding from the Courage to Change program on February 1, 2008. At a probation violation hearing held the same day the 777 petition was filed, Randy admitted the probation violation. The court ordered that probation continue and that Randy serve 365 days. The court credited Randy with 92 days in custody and ordered that the remaining 273 days were to be successfully completed in the Youth Center Program, in which Randy had requested placement.
Randy filed a timely notice of appeal on December 20, 2007.
On appeal Randy raises two claims. First, he contends that the failure of the juvenile court to adequately advise him of his Boykin-Tahl rights compels reversal of the juvenile court's jurisdictional order. Second, there was insufficient evidence to support the juvenile court's finding that it was necessary to remove him from his mother's custody. We find merit in Randy's first claim.
Background
On November 20, 2007, defense counsel told the juvenile court that there were three counts in an amended petition. Count two had been amended to reflect a violation of Penal Code section 417, subdivision (a)(2), a one-year misdemeanor offense, which Randy was going to admit under an aiding and abetting theory. Counts one and three would be dismissed "with facts." After clarifying that the court would dismiss counts one and three if the court accepted Randy's plea, the following colloquy took place:
"THE COURT: Randy, you've talked to your lawyer about this. That's what you want to do after you've talked to your lawyer about this?
THE MINOR: Yes, sir.
THE COURT: You will be giving up your right to remain silent because you don't have to admit anything. Do you give up that right?
THE MINOR: Yes.
THE COURT: Also, you have the right to a trial. At that trial the People would have to prove the case against you and you could testify if you want to. Do you understand those rights?
THE MINOR: Yes, sir.
THE COURT: Do you give up those rights?
THE MINOR: Yes, sir.
THE COURT: Has anyone made any made any promises to you to admit this?
THE MINOR: No, sir."
Thereafter the court went on to ask Randy if he admitted that it was true that he had violated Penal Code section 417, subdivision, (a)(2) by "unlawfully engaging or drawing a firearm in a rude or threatening manner." Randy admitted the allegation.
Briefly, the facts that Randy admitted, as taken from the probation report, are as follows. On August 23, 2007, Juan Rubio was driving in the vicinity of San Luis and Monterey Street when a vehicle stopped at a yield sign to Rubio's left side. Rubio saw Randy sitting in the passenger seat. Randy yelled " 'Norte East Marketa!' " Randy held up four fingers and " 'flipped him off.' " The driver of the vehicle, Mike Villalpando reached under his seat and pulled out a black semi-automatic handgun and rested it on the steering wheel of the car. The vehicle in which Villalpando and Randy were traveling made an illegal lane change and followed Rubio. Rubio drove away and lost the other vehicle.
Discussion
Randy contends that the juvenile court failed to advise him of his right to confront and subpoena witnesses. Accordingly, he argues that this error requires that the juvenile court's jurisdictional order be reversed.
In the context of a criminal case, "[u]nder both the state and federal Constitutions, a valid plea of guilty must be preceded by a knowing and voluntary waiver of defendant's rights. '[T]he record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, as well as the nature of the charge and the consequences of his plea.' [Citations.] 'No specific formula is required, as long as the record shows by direct evidence that the accused was fully aware of his rights.' [Citation.]" (People v. Wrest (1992) 3 Cal.4th 1088, 1102-1103; see Boykin v. Alabama (1969) 395 U.S. 238, 242-243 (Boykin); In re Tahl (1969) 1 Cal.3d 122, 132 (Tahl).) " 'Boykin does not require specific articulation of each of the three rights waived by the guilty plea, as long as it is clear from the record that the plea was voluntary and intelligent. . . .' [Citation.] . . . The record must affirmatively demonstrate that the plea was voluntary and intelligent under the totality of the circumstances. [Citations.]" (People v. Howard (1992) 1 Cal.4th 1132, 1178, fn. omitted, italics added.)
Similarly, "[t]he Boykin-Tahl protections afforded an accused, other than the right of trial by jury, are available to juveniles charged pursuant to the Juvenile Court Law, as proceedings thereunder may result in a substantial deprivation of liberty analogous to incarceration for crime. [Citation.] The absence of a knowledgeable waiver of constitutional rights before entering a guilty plea or, in the case of juvenile court proceedings, the admission of jurisdictional facts constitutes grounds for relief . . . ." (In re Ronald E. (1977) 19 Cal.3d 315, 321, abrogated on other grounds in People v. Howard, supra, 1 Cal.4th at pp. 1174-1178.)
At the outset, we note that the trial court's failure to advise Randy that he had the right to subpoena witnesses was not error. "While there is a constitutional right to the subpoena power of the court, no California appellate case has required the trial courts to advise the defendant [or in this case the minor] of such right or to obtain [on the] record a waiver of that right before taking a guilty plea [or admission by the minor]. We decline to impose such a requirement in light of the fact that the California Supreme Court has many times considered which constitutional rights must be expressly waived. [Citations.]" (People v. Salazar (1979) 96 Cal.App.3d Supp. 8, 12; accord, People v. Buller (1979) 101 Cal.App.3d 73, 78.)
Randy relies on People v. Christian (2005) 125 Cal.App.4th 688 (Christian), in which the Second District Court of Appeal reversed a no contest plea because, similar to this case, the Boykin-Tahl advisements and waivers had been incomplete. Although in Christian the defendant was advised of his right to a trial, he was not advised of his rights to confront witnesses or to be free from self-incrimination. (Id. at pp. 691-693.)
The Attorney General concedes that Randy was not distinctly and separately advised of his right to confront witnesses, but argues that under the totality of the circumstances the record demonstrates a voluntary and intelligent decision to admit count two.
The Attorney General points out that sometime before Randy entered his admission, a hearing was held at which a person from juvenile probation was called and sworn as a witness and cross-examined by Randy's attorney. The Attorney General argues "even apart from what should be the subject of both common knowledge and what a criminally-sophisticated young man such as [Randy] would know, the record indicates that [Randy] would reasonably have understood that by giving up the right to a trial, he was giving up his right to confront witnesses against him."
The substance of the hearing was to determine upon what the writer of Randy's intake report had based her determination that Randy should be detained. Randy's counsel focused his questions on establishing that the writer of the report had only read the police report that concerned count three, which he pointed out to the court was "a 90-day misdemeanor." Accordingly, Randy's counsel urged the court to consider releasing Randy from detention.
In addition, the Attorney General points out that Randy was allowed to plead to one misdemeanor, with a maximum time of confinement of one year, conditioned on the dismissal of two other misdemeanors. The Attorney General contends that if Randy had gone to a contested jurisdictional hearing, his maximum time of confinement would have been one year and three months. Accordingly, Randy had an incentive to plead to only one count.
Moreover, the Attorney General argues that while this was Randy's first formal delinquency petition, he had become involved with the juvenile court system in 2005. Since then, Randy had had numerous gang-related brushes with the law. This history, the Attorney General argues, suggests that Randy's admission was voluntary and intelligently made.
In People v. Mosby (2004) 33 Cal.4th 353, the defendant was given incomplete Boykin-Tahl advisements in that he was not advised of his right to remain silent and to confront witnesses against him. (Id. at pp. 357-358.) On appeal, the defendant contended that the trial court's incomplete advisement of rights rendered his admission of a prior conviction invalid. However, the California Supreme Court pointed out that the defendant had just sat through an entire jury trial. Applying the totality of circumstances test, the Mosby court concluded that the "defendant voluntarily and intelligently admitted his prior conviction despite being advised and having waived only his right to jury trial." (Id. at p. 365.) " '[H]e knew he did not have to admit [the prior conviction] but could have had a jury or court trial, had just participated in a jury trial where he had confronted witnesses and remained silent, and had experience in pleading guilty in the past, namely, the very conviction he was now admitting.' " (Ibid.)
Mosby addressed Boykin-Tahl considerations in the context of a defendant's admission of a prior conviction. However, our Supreme Court has implied that the same totality of the circumstances test applies "on direct appeal from a guilty plea to a substantive offense." (People v. Allen (1999) 21 Cal.4th 424, 439, fn. 4.)
As noted, in Christian, supra, 125 Cal.App.4th 688, the trial court advised the defendant of his right to a jury trial but failed to advise him of his right against self-incrimination and confrontation rights if he chose to contest charges of substantive offenses and allegations of prior convictions. (Id. at pp. 691-693.) The Second District Court of Appeal held that the defendant's guilty plea and admission of the priors were invalid. (Id. at pp. 693, 698-699.) The Christian court distinguished Mosby on the basis that the defendant "had not just participated in a trial at which he would have exercised his right[s] . . . ." (Id. at p. 697.) The Christian court concluded, "[t]he deficiencies in the record before us are more serious than those in Mosby." (Id. at p. 698.) More importantly, given the Attorney General's argument that Randy was present during a hearing at which the juvenile probation officer was questioned about her intake report and could supposedly have observed his constitutional rights being asserted therein, the Christian court found it an inadequate circumstance that the defendant had been present at a preliminary examination that included defense counsel's cross-examination of witnesses. (Id. at pp. 697-698.) The Christian court reasoned, "The fact that there was a preliminary hearing at which witnesses testified cannot serve, by itself, as a substitute for proper admonishments and waivers. [Citation.] Otherwise, Mosby would not have agreed that reversal was required in the truly silent record cases, as witnesses would have been called in the jury trials that had preceded the totally inadequate advisements." (Id. at p. 698.)
Mosby separated the cases into two categories: (1) truly silent record cases, those in which the record showed "no express advisement or waiver of the Boykin-Tahl rights before a defendant's admission of a prior conviction" (Mosby, supra, 33 Cal.4th at p. 361); and (2) incomplete Boykin-Tahl advisement cases, those in which the defendants had been advised of their right to a jury trial but not of the other two constitutional rights. (Id. at pp. 362-364.)
A pretrial hearing of the nature that occurred in this case is not the same thing as a contested jurisdictional hearing. Randy's counsel did not contest the truth of the police report upon which the probation officer relied to write her intake report. Rather, counsel was concerned with clarifying for which incident Randy was being detained.
Furthermore, although a minor's prior experience with the juvenile justice system is relevant to the question of whether he knowingly waived his constitutional rights, it appears that Randy had no significant juvenile court experience. In Mosby, supra, 33 Cal.4th 353, the California Supreme Court stated that a defendant's prior experience with the criminal justice system was relevant to whether he knowingly waived constitutional rights as such experience is relevant to a "recidivist's ' "knowledge and sophistication regarding his [legal] rights." ' [Citations.]" (Id. at p. 365, fn. omitted.) According to the juvenile probation department, Randy appeared to have been involved in the juvenile justice system once before and was "diverted" for a mutual fight that occurred at a school. The record does not reveal, and we find it most unlikely, that Randy was at the time he was diverted from the juvenile court system given Boykin-Tahl advisements.
At the time Randy was before the juvenile court he was 15 years old.
Finally, the fact that Randy might have gained a slight benefit from admitting the allegations of the 602 petition is not enough to persuade us that Randy was aware of and voluntarily and intelligently waived his full Boykin-Tahl rights before he admitted the jurisdictional facts in this case. Randy admitted the facts of a count that carried the greatest potential penalty. (See Pen. Code, § 417, subd. (a)(2)(A).)
Even though count one carried a potential one-year penalty, full, consecutive misdemeanor terms may not be imposed in juvenile cases. (In re Claude J. (1990) 217 Cal.App.3d 760, 765.)
Accordingly, we conclude that under the totality of the circumstances of this case Randy did not voluntarily and intelligently admit the jurisdictional facts in this case. As a result, we must reverse the juvenile court's jurisdictional order and remand the case for further proceedings.
Notwithstanding the more informal approach in juvenile court, we remind the juvenile court, "explicit admonitions and waivers still serve the purpose that originally led [the California Supreme Court] to require them," as they "are the only realistic means of assuring that the judge leaves a record adequate for review." (People v. Howard, supra, 1 Cal.4th at pp. 1178-1179.) "[F]ailing to give full advisements and obtain express waivers carries a high cost. 'As a consequence of the . . . failure to obtain valid admissions . . . appeals are filed, briefs are prepared, appellate research and record review are conducted, argument is heard, appellate opinions are written, matters are remanded to trial courts, defendants are transported from prisons to county jails to courtrooms, [and] attorneys are appointed to represent defendants . . . .' [Citation.]" (Mosby, supra, 33 Cal.4th at p. 365, fn. 3.)
In view of this conclusion, we need not reach Randy's remaining claim.
Disposition
The juvenile court's jurisdictional order is reversed and the case is remanded for further proceedings.
WE CONCUR: RUSHING, P. J., PREMO, J.