Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. JW102955-02, Peter A. Warmerdam, Juvenile Court Referee.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Wiseman, J., and Levy, J.
OPINION
INTRODUCTION
On April 15, 2008, a supplemental petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, D.J., committed robbery (Pen. Code, § 212.5, subd. (c), count one), assault by means or force likely to produce great bodily injury (§ 245, subd. (a)(1), count two), assault with deadly weapon, a firearm (§ 245, subd. (a)(1), count three), and violated probation (Welf. & Inst. Code, § 777, subd. (a)(2), count four). The petition further alleged enhancements that D.J., personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)), committed the offense for the benefit of criminal street gang (§ 186.22, subd. (b)(1)), and personally inflicted great bodily injury on the victim (§ 12022.7).
Unless otherwise indicated, all further statutory references are to the Penal Code.
On April 25, 2008, D.J. entered into a plea agreement. D.J. executed an advisal and waiver of rights form in which he acknowledged and waived his constitutional rights. In exchange for D.J.’s admission of count one, count four, and the great bodily injury enhancement (enhancement), the remaining allegations were to be dismissed. At the end of the form, D.J.’s attorney joined in his client’s waiver and admissions, stated he had explained each provision of the form to his client, and stipulated that there was a factual basis for the change of plea.
At the change of plea hearing, the juvenile court asked D.J. if he understood that he would be admitting count one, count four, and the enhancement and if he understood that he faced a maximum commitment time of eight years four months. D.J. replied affirmatively. The court explained that before D.J. could admit those charges, he would: “have to tell me that you understand and give up certain rights that you have. They are listed here on this form called an ‘Advisal and Waiver of Rights.’ This one has your name on it. It has the initials [D.J.] on the small lines on the right-hand side of the page. [¶] Did you put those initials there because you understood each of those rights?” D.J. replied yes to the court’s question. The court further asked D.J. if he signed the back page of the waiver form because he was willing to give up the rights and admit the allegations. D.J. replied affirmatively to this question.
The advisal and waiver of rights form will hereinafter be referred to as the waiver form.
The waiver form D.J. initialed and executed stated that his attorney explained each of his rights to him. These were D.J.’s rights to: a hearing by a judge or referee and assistance of counsel in a defense, the prosecutor to prove the allegations beyond a reasonable doubt, the right to see and confront and for his attorney to question all witnesses against him, the right to present a defense which included the right to tell the judge his side of the facts and to use the court’s process to make witnesses come to testify, the right to remain silent and not to testify, and the right to have the trier of fact who accepts his admission to determine his sentence. D.J. acknowledged that he was giving up his right to remain silent and was knowingly, intelligently, voluntarily, and expressly waiving and giving up each of his rights. D.J. further acknowledged that he had enough time to discuss the matter with his attorney, the charges, his rights, possible sentences he may receive, and any defense to the allegations.
The court asked D.J. if his signature was at the end of the form and if he was willing to give up the rights set forth in the form and admit the charges. D.J. replied yes. D.J.’s counsel stipulated to a factual basis to D.J.’s plea. D.J. admitted counts one and four. The court read the allegations of both counts. The court also read the allegations of the enhancement to D.J., asking D.J. if he was admitting that he “personally inflicted great bodily injury upon” the victim. D.J. replied that he was admitting this enhancement. The court accepted the admissions, finding a factual basis for them. The court dismissed the remaining allegations. At the disposition hearing on May 13, 2008, the juvenile court committed D.J. to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF).
DJF was formerly known as the California Youth Authority (CYA). (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) DJF was renamed by statutory enactment in 2005. (Welf. & Inst. Code, §§ 202, subd. (e)(5), 1000, 1703, subd. (c), & 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.3, 12838.5, 12838.13.) DJF is referenced in statutes, such as Welfare and Institutions Code sections 731 and 733, that formerly referred to CYA. (In re N.D. (2008) 167 Cal.App.4th 885, 890, fn. 2.) In this opinion, we will use the name DJF uniformly, even when referring to older cases and statutes.
On appeal, D.J. contends there was insufficient evidence to support a finding of a factual basis that he inflicted great bodily injury on the victim. D.J. further contends the juvenile court abused its discretion in committing him to DJF.
FACTS
Right after midnight on April 12, 2008, Bakersfield Police Department officers were dispatched to an address on Maitland Drive in Bakersfield. The officers were told by a dispatcher that suspects of a disturbance were seen leaving the scene in a green Ford Expedition. The vehicle was found at the intersection of Ming and South Chester Avenues. D.J. was present with five adults.
The facts are derived from the probation officer’s report.
Officers learned that during a party at a residence on Brunswick Drive, C.R. and C.N. were the victims of significant physical attacks at the hands of others. C.R. and C.N. went to the Maitland Drive address. They were followed by the adults, who had picked up D.J. en route. D.J. and others assaulted C.R., punching and kicking him on the ground until he became unconscious. C.R.’s wallet and phone were taken during the attack. One of the adults joining in the attack was holding a gun and threatened to kill C.R. and C.N.
D.J. and the adults were arrested. The two victims were taken to the hospital. C.R. had a deep laceration on his upper lip and swelling on his face. He complained of pain to his abdomen and neck. C.N. had abrasions to her face. Both of her eyes were swollen shut. C.N. also complained of pain to her abdomen, back, and head.
According to the probation report, D.J. had a referral in August 2006 for unlawfully fighting in public (§ 415, subd. (1)). In January 2007, D.J. was found to be a ward of the court and placed on probation for committing an assault (§ 245, subd. (a)(1)). The juvenile court exercised its authority to reduce the allegation to a misdemeanor.
FACTUAL BASIS FOR PLEA
Appellant argues that the juvenile court “failed to follow the bulk of the procedural safeguards provided for the taking of an admission.” Appellant argues that the juvenile court did not read him his constitutional rights, did not expressly state that it was satisfied appellant understood the nature of the allegations and the direct consequences of the admission, found the allegations true only on the basis of a prepared form, and failed to make all of the findings required in the California Rules of Court. Appellant especially contends the juvenile court erred in failing to establish a factual basis for his admission of the enhancement.
Express Waiver of Rights and Findings by Court
Pleas in juvenile cases are governed by In re Ronald E. (1977) 19 Cal.3d 315, 321 (Ronald E.) [disapproved on another ground in People v. Howard (1992) 1 Cal.4th 1132, 1175 (Howard)], which holds that the Boykin/Tahl procedural safeguards afforded to an accused in a juvenile proceeding are identical to those given an adult except for the right to a jury trial. These safeguards, and others, are set forth in California Rules of Court, rule 5.778 (rule 5.778).
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).
Rule 5.778 provides in relevant part:
The juvenile court here did not explain and obtain oral waivers of each of D.J.’s constitutional rights. Relying on In re Regina N. (1981) 117 Cal.App.3d 577 (Regina N.), D.J. argues that his execution of a waiver form was legally insufficient to satisfy rule 5.778(b). We disagree.
In Regina N., the juvenile court obtained a statement from the minor’s attorney that counsel had talked to the minor and she understood there would not be a trial, she was giving up her right to a trial, and counsel believed the minor understood her rights. (Regina N., supra, 117 Cal.App.3d at p. 581.) The minor executed a voluntary admission form that stated each of the minor’s constitutional rights. The court asked the minor if her signature was on the form and if she understood it. (Id. at pp. 581-582.) Regina N. held that the requirements of the predecessor rule of court to rule 5.778 could not be met by having the juvenile sign a form. (Regina N., supra, 117 Cal.App.3d at pp. 584-585.) Regina N. further found that the procedure employed was prejudicial. (Id. at p. 586.)
Although the facts of the instant action are close to those in Regina N., we find important differences. At the change of plea hearing, the juvenile court asked D.J. if he understood that he would be admitting count one, count four, and the enhancement as well as whether D.J. understood that he faced a maximum commitment time of eight years four months. D.J. replied affirmatively. The court explained that before D.J. could admit those charges, he would “have to tell [the court] that you understand and give up certain rights that you have. They are listed here on this form called an ‘Advisal and Waiver of Rights.’ This one has your name on it. It has the initials [D.J.] on the small lines on the right-hand side of the page. [¶] Did you put those initials there because you understood each of those rights?” D.J. replied yes to the court’s question. The court further asked D.J. if he signed the back page of the waiver form because he was willing to give up the rights and admit the allegations. D.J. replied affirmatively to this question.
It does not appear that the juvenile in Regina N. acknowledged any more to the court than signing the waiver form and stating that she understood it. Here, D.J. acknowledged placing his initials after each advisement on the form. D.J. did more than acknowledge that he understood the form itself. The court explained to D.J. that he had the rights set forth in the form. D.J. replied yes to the court’s question concerning whether he understood his rights and responded affirmatively to the court’s question concerning whether he was willing to give up those rights and admit the allegations.
We find Howard, supra, 1 Cal.4th 1132 instructive and controlling on the issue of proper advisements to an accused. In Howard, the court failed to advise the defendant of his right not to incriminate himself. (Id. at pp. 1179-1180.) Howard adopted the federal test – that the record must affirmatively demonstrate that the plea was voluntary and intelligent under the totality of the circumstances – in place of the former rule in California that the absence of express advisements and waivers requires reversal regardless of prejudice. (Id. at p. 1178.) Howard ultimately found that the record there affirmatively demonstrated that the defendant knew he had the right not to incriminate himself and that the failure of the trial court to make this advisement and to take this admission was harmless because the admission was knowing and voluntary. (Id. at p. 1180.)
Courts may rely on a validly executed waiver form as a proper substitute for personally advising the accused of his or her Boykin/Tahl rights. (People v. Castrillon (1991) 227 Cal.App.3d 718, 721-722.) In In re Ibarra (1983) 34 Cal.3d 277, 284-286 [overruled on another ground in People v. Mosby (2004) 33 Cal.4th 353, 360-361] the court concluded a written waiver could similarly be relied upon in a felony case.
Although the juvenile court did not give D.J. oral advisements of his constitutional rights, the court accomplished the functional equivalent through the use of the waiver form and its more detailed questioning of D.J.’s understanding of his constitutional rights than the questioning that occurred in Regina N.
The better practice would be for the juvenile court to also give an oral advisement of rights and to obtain oral waivers from the minor. The juvenile court’s failure to do so here, however, did not prevent it from making a valid finding that D.J. knowingly, intelligently, and voluntarily waived his constitutional rights prior to entering his change of plea. Furthermore, we have a sufficient record before us to determine that D.J. understood and made a knowing and intelligent waiver of his constitutional rights.
D.J. also argues that the juvenile court failed to make all of the express findings set forth in rule 5.778(f). The court here, however, made the most critical of these findings: the minor made a voluntary waiver of rights, the factual basis for the plea, and that D.J. came within the provisions of Welfare and Institutions Code section 602. Those findings that are missing, such as the giving of proper notice and D.J.’s birthdate, are otherwise found in the record. To the extent these findings are missing, the juvenile court’s failure to make them is harmless. We turn separately to discuss D.J.’s contention that the court failed to make a factual finding that he personally inflicted great bodily injury on the victim.
Finding of Great Bodily Injury
D.J. contends the record does not show the juvenile court recited the charges of the petition and it does not appear D.J. was advised the enhancement allegation required that D.J. personally inflicted great bodily injury on the victim. D.J. acknowledges that when the court asked him if he personally inflicted great bodily injury on the victim that he replied yes to the question. D.J. argues that the court then found a factual basis for the plea, but that the record does not support such a finding.
At the end of the waiver form, D.J.’s attorney joined in his client’s waiver and admissions, stated he had explained each provision of the form to his client, and stipulated that there was a factual basis for the change of plea. During the hearing itself, defense counsel again stipulated to a factual basis for the plea. When the court asked D.J. if he “personally inflicted great bodily injury upon [C.R.]”, D.J. answered affirmatively. The court found a factual basis for the admissions.
Section 1192.5 requires that prior to accepting a plea, the court establish a prima facie factual basis for the allegations. For purposes of this discussion, we presume that section 1192.5 applies to juvenile cases. (Ronald E., supra, 19 Cal.3d at pp. 320-325; see In re Michael B. (1980) 28 Cal.3d 548, 555-556.) In establishing a factual basis for the plea, it is not necessary for the trial court to interrogate the defendant about possible defenses to the charged crime. The court does not need to be convinced of the defendant’s guilt. (People v. Holmes (2004) 32 Cal.4th 432, 441 (Holmes).) The trial court can establish a factual basis by directly questioning the defendant, or by garnering statements and admissions from the defendant’s counsel. The factual basis requirement is met when both parties stipulate on the record to a document, such as the police or probation report, a pleading, or a grand jury or preliminary hearing transcript. (Id. at pp. 440-441.)
Generally, a reference to a complaint containing a factual basis for each essential element of a crime is sufficient to establish the factual basis for the plea under section 1192.5. (Holmes, supra, 32 Cal.4th at p. 440.) While the trial court is not required to develop the factual basis on the record by asking the defendant to enumerate his or her proscribed actions, it must otherwise ensure that some reference on the record to other factual sources is present. (Id. at p. 441.) The factual basis required by section 1192.5 only requires a prima facie factual basis for the allegations. (Holmes, supra, at p. 441.)
Because defense counsel acknowledged a factual basis for the plea both in the waiver form and during the hearing, and because the juvenile court recited the elements of inflicting great bodily injury on the victim to D.J., including the element that he personally inflicted that injury, it appears that the requirements of Holmes and section 1192.5 have been met here.
Holmes noted in footnote 8 that a closer question is raised when counsel stipulates to a factual basis for a plea absent a reference to a particular document. (Holmes, supra, 32 Cal.4th at p. 441, fn. 8.) Even if we were to find that the juvenile court’s recitation of the elements of inflicting the enhancement was not tantamount to a reference to the petition, we would find any error harmless here. The petition and the probation officer’s report indicate that D.J. was personally involved, with others, in severely beating C.R. D.J.’s conduct was a direct and contributing cause of a deep laceration to C.R.’s lip, as well as other injuries, that sent him to the hospital for treatment. We will not, therefore, find error in any failure by the juvenile court in failing to make its factual finding based on a specific document where, as here, the facts appear in the record. (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1577-1578, 1580.) Where the facts otherwise appear in the record, any error in this regard is harmless. (Holmes, supra, 32 Cal.4th at p. 443.) We find the juvenile court did not abuse its discretion in finding a factual basis that D.J. committed the enhancement. (Ibid.)
COMMITMENT TO DJF
D.J contends the juvenile court abused its discretion in committing him to DJF. We disagree and will affirm the judgment of the juvenile court.
Under Welfare and Institutions Code section 725.5, the juvenile court must consider the circumstances and gravity of the offense committed by the minor. The court must consider the broadest range of information in determining how best to rehabilitate a minor and to afford him or her adequate care. A juvenile court’s order may be reversed on appeal only upon a showing the court abused its discretion. Appellate courts must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.)
The record must be viewed in light of the purposes of juvenile law. As described in Welfare and Institutions Code section 202, those purposes include rehabilitation, treatment, guidance, punishment as a rehabilitative tool, and protection of the public. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 575-576 (Teofilio A.).)
It is clear that a commitment to the DJF may be made in the first instance, without previous resort to less restrictive alternatives. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.) Courts do not necessarily abuse their discretion in ordering a juvenile to the most restrictive placement before other options have been tried. (In re Eddie M. (2003) 31 Cal.4th 480, 507.)
The gravity of an offense, coupled with other relevant factors, is a consideration in committing a juvenile to DJF. (In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104, disapproved on another ground in People v. Hernandez (1988) 46 Cal.3d 194, 206, fn. 14.) Relevant considerations include the nature, duration, and context of the delinquent conduct, including the gravity of the offense. (Welf. & Inst. Code, § 725.5; In re Samuel B., supra, 184 Cal.App.3d at pp. 1103-1104.) The court may also consider the need to hold the minor accountable for his or her actions (Welf. & Inst. Code, § 202, subd. (b)), and the community’s interest in being protected from crime during rehabilitative efforts (Welf. & Inst. Code, § 202, subd. (a); In re Lorenza M. (1989) 212 Cal.App.3d 49, 57-58).
It is error for a juvenile court to fail to consider less restrictive alternatives to DJF commitment. (Teofilio A., supra, 210 Cal.App.3d at p. 577.) In Teofilio A., neither the juvenile court nor the probation report considered alternatives to DJF commitment. Though the only evidence in the probation report showed the juvenile was an unsuitable candidate for DJF, the report concluded that the juvenile acted in a criminally sophisticated manner. Teofilio A. found the probation officer’s conclusion was grounded on supposition and speculation, not on solid evidence. Teofilio A. concluded there was not sufficient evidence to support the juvenile’s commitment to DJF. (Id. at pp. 578-579.)
Here, the probation officer considered commitment to Camp Erwin Owen and the Kern Crossroads Facility, but rejected these alternatives because of D.J.’s history of assaultive behavior and the extremely egregious nature of the current offense. D.J. was on probation when he committed the instant offense. The juvenile court found that previous orders of the court had been ineffective in D.J.’s rehabilitation and local programs would be ineffective in his rehabilitation. Here, in contrast to Teofilio A., both the juvenile court and the probation officer considered less restrictive alternatives to a commitment to DJF. We reject the assertion of D.J’s appellate counsel that the juvenile court failed to carefully consider other less restrictive alternatives under the circumstances of this case. In committing appellant to DJF, the juvenile court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
“(a) Petition read and explained (§ 700)
“At the beginning of the jurisdiction hearing, the petition must be read to those present. On request of the child, or the parent, guardian, or adult relative, the court must explain the meaning and contents of the petition, the nature of the hearing, the procedures of the hearing, and possible consequences.
“(b) Rights explained (§ 702.5)
“After giving the advisement required by rule 5.534, the court must advise those present of each of the following rights of the child:
“(1) The right to a hearing by the court on the issues raised by the petition; “(2) The right to assert the privilege against self-incrimination;
“(3) The right to confront and to cross-examine any witness called to testify against the child; and
“(4) The right to use the process of the court to compel the attendance of witnesses on the child’s behalf.
“(c) Admission of allegations; prerequisites to acceptance
“The court must then inquire whether the child intends to admit or deny the allegations of the petition. If the child neither admits nor denies the allegations, the court must state on the record that the child does not admit the allegations. If the child wishes to admit the allegations, the court must first find and state on the record that it is satisfied that the child understands the nature of the allegations and the direct consequences of the admission, and understands and waives the rights in (b).
“(d) Consent of counsel--child must admit
“Counsel for the child must consent to the admission, which must be made by the child personally.
“(e) No contest
“The child may enter a plea of no contest to the allegations, subject to the approval of the court.
“(f) Findings of the court (§ 702)
“On an admission or plea of no contest, the court must make the following findings noted in the minutes of the court:
“(1) Notice has been given as required by law;
“(2) The birthdate and county of residence of the child;
“(3) The child has knowingly and intelligently waived the right to a hearing on the issues by the court, the right to confront and cross-examine adverse witnesses and to use the process of the court to compel the attendance of witnesses on the child's behalf, and the right to assert the privilege against self-incrimination;
“(4) The child understands the nature of the conduct alleged in the petition and the possible consequences of an admission or plea of no contest;
“(5) The admission or plea of no contest is freely and voluntarily made;
“(6) There is a factual basis for the admission or plea of no contest;
“(7) Those allegations of the petition as admitted are true as alleged;
“(8) The child is described by section 601 or 602; and
“(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.”