Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JL05024
BUTZ, J.T.B., a minor, appeals from an order of the juvenile court denying his motion, made pursuant to Welfare and Institutions Code section 778, to set aside his admission entered two years previously to two counts of continuous sexual abuse of a child.
Undesignated statutory references are to the Welfare and Institutions Code.
The minor contends the denial of the motion was error because the reporter’s transcript of the jurisdictional hearing wherein he admitted the charges is now unavailable, thereby rendering the record insufficient for him to obtain meaningful review of whether (1) the admission was knowingly and voluntarily given, and (2) whether the court properly found that he knew his conduct was wrongful. We shall affirm the juvenile court’s ruling.
PROCEDURAL HISTORY
On June 20, 2005, when the minor was 11 years old, he admitted two counts of continuous sexual abuse of a child, the victims being his nine-year-old sister and the seven-year-old son of his father’s girlfriend. (Pen. Code, § 288.5, subd. (a).) He was declared a ward of the court and ordered placed in a group home. He did not appeal from the order of wardship.
In August 2007, the probation department filed a petition (§ 777) alleging the minor violated the terms of his wardship by being terminated from his placement because of disruptive behavior and disrespect to the staff.
In September 2007, while the section 777 petition was still pending, the minor filed the petition at issue herein (§ 778) seeking to set aside his admission of the two sex offenses. His argument was that since the reporter’s transcript of the June 20, 2005 hearing was no longer available and because he had been shackled during that hearing, which intimidated him, he was precluded from obtaining meaningful review of whether the admission was knowingly and voluntarily made. Additionally, he claimed the juvenile court failed to conduct a required competency evaluation and review. Attached to the motion was a declaration by his present counsel stating that while the minor remembered being shackled by the wrists and feet at the June 20 hearing, he did not remember any other “specifics” of the hearing, and that the minor’s trial attorney, with whom counsel had spoken, had “no memory” of the hearing.
In November 2007, by written order, the juvenile court denied the motion, stating that even though the transcript of the admission hearing was unavailable the record still adequately established that the minor had been advised of his constitutional “rights” and had waived them. The court further observed that the minor “ha[d] not shown anything new that would cause the court to change the jurisdictional finding or the disposition of the case.”
DISCUSSION
The minor argues that without the transcript of the June 20, 2005 hearing he cannot obtain meaningful review of whether he was fully advised of and waived specific constitutional rights; whether there was manifest need to have him shackled at the time he made his admission; and whether the court properly found that he appreciated the wrongfulness of his acts, which is required by Penal Code section 26, subdivision (1).
The docket sheet for June 20, 2005, states in relevant part: “The Court voir dires the minor regarding his constitutional rights and his intended admission. The minor waives his constitutional rights and admits the allegations. The Court FINDS that there has been a knowing and intelligent waiver by the minor of his rights and that the minor has freely and voluntarily admitted the two allegations of the Petition. . . . [¶] The Court FINDS that based on the conversations and questions asked, that the minor knew his conduct was wrongful at the time of the events.” Since we are resolving this contention on the court’s alternative finding that the minor’s showing was insufficient to entitle him to relief under section 778, we need not determine whether the docket sheet adequately satisfies the requirement that the minor be advised of his constitutional rights.
The minor’s selection of section 778 to set aside his prior admission is the wrong avenue for obtaining review of the propriety of his admission. By its express terms, section 778 requires the petitioning party to present a “change of circumstance or new evidence” as a prerequisite to obtaining a change of a prior court order or disposition. The circumstances attending the advisement of constitutional rights and waivers thereof, the necessity for his being shackled, and the finding that he knew the wrongfulness of his conduct, were all in existence at the time he made his admission. And because these circumstances were in existence, review of them even if available could not result in either new evidence or a change in circumstances. Consequently, the minor was not entitled to relief under section 778 and, thus, the motion was properly denied.
In pertinent part, section 778 states: “Any parent or other person having an interest in a child who is a ward of the juvenile court or the child himself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a ward of the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioner’s relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order or termination of jurisdiction.” (§ 778, 1st par.)
The appropriate challenge by the minor is a motion to strike his prior admission for noncompliance with Boykin-Tahl requirements. However, even if so considered, the motion would fail. Boykin-Tahl requires that, in accepting a defendant’s guilty plea, he or she must be advised of the right to a jury trial, the right of confrontation, and the right not to incriminate one’s self. (People v. Howard (1992) 1 Cal.4th 1132, 1176, 1178-1179.) With the exception of the right to a jury trial, the same requirements apply to admissions under the juvenile court law. (Allen, supra, 21 Cal.4th at p. 437.)
Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] and In re Tahl (1969) 1 Cal.3d 122.
A defendant may collaterally challenge the constitutionality of a prior conviction by means of a motion to strike even though there is no statutory authority for such a motion. (People v. Sumstine (1984) 36 Cal.3d 909, 916 (Sumstine), reaffd. in People v. Allen (1999) 21 Cal.4th 424, 439-440 (Allen).)
To obtain an evidentiary hearing on such a motion to strike, the defendant or minor “‘must affirmatively allege that at the time of his prior conviction [or admission] he did not know of, or did not intelligently waive, such rights.’” (Allen, supra, 21 Cal.4th at p. 439, quoting Sumstine, supra, 36 Cal.3d at p. 914.) Here, the minor’s declaration contains no such averment; instead, he claims to have no memory of what occurred other than his being shackled. Consequently, even if considered as a motion to strike, rather than one for relief under section 778, the motion, as presented, would fail.
With regard to the minor’s claim that, without the transcript of the June 20, 2005 hearing, he is unable to obtain meaningful review of whether the court properly found that he knew the wrongfulness of his conduct, as required by paragraph One of Penal Code section 26, the minor is wrong.
Paragraph One of Penal Code section 26 provides: “All persons are capable of committing crimes except those belonging to the following classes: [¶] One--Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.”
Even assuming that the court’s minute order of June 20, 2005, which states that “based on conversations and questions asked” the court found that the minor knew his conduct was wrongful, is insufficient to support that finding, the record contains other information which does support it. (In re Cindy E. (1978) 83 Cal.App.3d 393, 399 [reviewing court may look to uncited evidence in record to support finding (Pen. Code, § 26, par. One)].)
At the detention hearing conducted on June 10, 2005, the court had in its possession the “Probation Officer’s Request to Detain [the] Minor.” Part of that request stated on “numerous occasions” the minor had engaged in anal intercourse with the seven- and nine-year-old victims, each of whom stated that “the minor threatened them with bodily harm if they disclosed the incidents.” The minor later confirmed to the probation officer that he had made such threats. Threatening the victims if they told of the sexual assault is a clear indication that the minor knew the wrongfulness of his conduct. Hence, the finding, under paragraph One of Penal Code section 26, is substantially supported.
DISPOSITION
The juvenile court’s order denying the minor’s motion to set aside his admission of June 20, 2005, is affirmed.
We concur: BLEASE, Acting P. J., NICHOLSON, J.