Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura Super. Ct. No. 200700752 Donald D. Coleman, Judge
Jonathan B. Steiner, Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler, Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Uriel T. was declared a ward of the court in 2004 and was taken into custody in 2005. Since that time, seven subsequent petitions have been filed and sustained. He was released for two months on electronic monitoring, but was returned to custody when he committed the present offense, a battery.
Appellant admitted the allegation and the juvenile court imposed a maximum term of confinement of four years and four months in the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (CDCR-DJF). Appellant claims that his admission was not knowing or voluntary because he was not adequately informed of his right to a trial or the possibility of being committed to a state, rather than a local, facility. He also contends that new legislation bars his commitment to the CDCR-DJF. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
First petition: On March 5, 2004, an original petition was filed alleging that appellant had committed petty theft, a misdemeanor. (Pen. Code, § 484, subd. (a).) He admitted the allegation and was declared a ward of the court pursuant to Welfare and Institutions Code section 602. On April 5, 2004, he was placed on probation and released to his father.
The following statutory references are to the Penal Code, unless otherwise stated.
Second Petition: Four days later, on April 9, 2004, a subsequent petition was filed alleging that appellant unlawfully interfered with or damaged a vehicle, a misdemeanor. (Veh. Code, § 10852.) On May 10, 2004, he admitted the allegation and the petition was sustained. The juvenile court modified the terms of home probation.
Appellant failed to comply with the terms of probation and was returned to court. On August 5, 2004, he was ordered into placement. He was placed in Serenity Youth Home on September 1, 2004, and absconded the following day. Seven months later he surrendered voluntarily. On April 20, 2005, appellant admitted a violation of probation and was ordered to serve 90 days in the juvenile justice facility (JJF).
Third Petition: On December 14, 2005, the juvenile court sustained a subsequent petition, following appellant's admission that he had committed misdemeanor second degree burglary (§ 459) and admitted violations of probation. He was ordered to serve 150 days in the JJF.
Fourth Petition: On January 31, 2006, a subsequent petition was filed alleging that appellant had committed a misdemeanor battery (§ 242) upon a resident in the JJF. On February 1, 2006, appellant admitted the allegation of the petition and was ordered to serve an additional 30 days in the JJF.
Fifth Petition: On February 10, 2006, a subsequent petition was filed, alleging that appellant had committed a misdemeanor battery (§ 242) upon another resident in the JJF. On February 15, appellant admitted the allegation and the petition was sustained. He was ordered to serve an additional 90 days in the JJF.
Sixth Petition: On June 21, 2006, an amended subsequent petition was filed alleging that appellant had committed one count of battery (§ 242); one count of vandalism not exceeding $400 (§ 594, subd. (b)(2)(A)); two counts of resisting a peace officer (§ 148, subd. (a)(1)); one count of petty theft (§ 484, subd. (a)); and one count of battery upon an officer (§ 243, subd. (b)), all misdemeanors. Appellant admitted one count of vandalism and one count of resisting a peace officer. The remaining counts were dismissed with consideration. The juvenile court ordered that appellant serve 60 days on electronic monitoring after release from his JJF commitment.
On July 12, 2006, a psychological evaluation was filed with the court in which appellant was diagnosed with schizoaffective disorder, conduct disorder and polysubstance dependence.
Seventh Petition: On July 27, 2006, a subsequent petition was filed alleging that appellant committed a misdemeanor battery upon a peace officer by gassing, when he spat upon a corrections officer at the JJF. (§ 243.9, subd. (a).) On July 28, appellant admitted the allegations of the petition, which was sustained, and the juvenile court extended his commitment to the JJF by 45 days. He completed his commitment and was released on September 16, 2006, on electronic monitoring. He completed the monitoring on November 15, 2006.
Eighth Petition: This petition concerns the present matter. On January 9, 2007, the district attorney filed a petition alleging that appellant had committed two felony offenses: the unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 1) and evading an officer (Veh. Code, § 2800.2, subd. (a); count 2). Appellant admitted count 2. Count 1 was dismissed with consideration.
The underlying offense occurred on January 7, 2007, when an Oxnard police officer saw a car that had been reported stolen and was said to be occupied by at least two men that may have been involved in an armed robbery. Appellant was driving the vehicle and had two passengers. Back-up officers were called to the scene and tried to make a traffic stop. Appellant accelerated into oncoming traffic, causing several drivers to slow down to avoid colliding with him. He slowed to 15 miles per hour, opened the driver's side door and braked, causing the patrol car to rear-end him. Appellant was removed from the car and taken into custody, as were the two passengers. Inside the vehicle was a screwdriver, a set of seven keys and a 15-inch knife.
Appellant's mother lives in Mexico. Prior to being taken into custody he resided with his father, 28-year-old sister and her family. Appellant has a very troubled relationship with his father and does not want contact with him. Appellant's sister no longer wants appellant to live with her.
On February 8, 2007, appellant was continued as a ward of the court and probation was terminated. The juvenile court determined the maximum period of confinement to be four years four months and committed appellant to the CDCR-DJF. The court imposed the upper term of three years for the Vehicle Code section 2800.2, subdivision (a) violation.
The juvenile court designated the following misdemeanor offenses as subordinate terms, to be served consecutively: four months for the second degree burglary count, sustained on December 14, 2005; two months for two counts of battery, sustained in February 2006; four months for the vandalism count, sustained on June 27; and four months for the battery by gassing count, sustained on July 28.
The juvenile court made a finding that the felony offense of a Vehicle Code section 2800.2, subdivision (a) violation does not fall within the provisions of section 707 subdivision (b) of the Welfare and Institutions Code. Section 707 concerns the holding of a fitness hearing to determine whether a minor is a proper subject to be dealt with under juvenile court law. Several criteria are evaluated, including the seriousness of the offense. The types of offenses enumerated in subdivision (b) of section 707 do not include battery.
DISCUSSION
Admission of Allegation in January 9, 2007 Petition
Appellant claims that his admission of the allegation in the January 9, 2007 petition was not intelligent, knowing and voluntary, thus the adjudication must be reversed. He asserts that, prior to this adjudication, he had only been subjected to probation supervision and local confinement in the JJF. He did not know that his most recent offenses were felonies, rather than misdemeanor charges, and that he could be confined in the CDCR-DJF until age 21. He claims he was not made fully aware of his rights or the consequences of his admission.
Appellant acknowledges that, as long as the record of the proceeding affirmatively demonstrates that the admission was voluntary and intelligent under the totality of the circumstances, the admission can be upheld. (People v. Howard (1992) 1 Cal.4th 1132, 1178.) He claims, however, that the record does not affirmatively demonstrate such an admission.
Appellant's offenses were identified in the petition as felonies. At the hearing on that petition, the following exchange occurred between appellant and the prosecutor:
"[Prosecutor]: "By admitting you have committed a crime, that's going to increase your maximum possible time in confinement to five years and ten months. Do you understand that?
This was a miscalculation; the maximum term of physical confinement was four years and four months.
"[Appellant]: Yes.
"[Prosecutor]: . . . If you didn't want to admit that you committed the crime, you could have a court trial, and the judge would decide whether or not you were guilty. He would listen to witnesses testify about what happened, and you could also tell him anything that you wanted to. If you chose not to say anything at the trial, then he wouldn’t automatically think you were guilty just because you didn't say anything. So you do have a right to a trial. Do you understand that?"
"[Appellant]: Yeah.
"[Prosecutor]: But, because you're admitting one charge, there is not going to be a trial. Is that all right with you?
"[Appellant]: Yes."
The juvenile court found that appellant knowingly waived his rights and understood the nature of the allegations and the consequences of his admission. The court then inquired of appellant, "[s]o, the maximum amount of time you could be confined, [appellant], as a result of admitting Count 2 of the subsequent petition, is four years and ten months. Do you understand that?" Appellant responded, "Yes." The court asked, "All right, knowing that, do you still wish to enter your admission today?" Appellant answered, "Yes."
At the dispositional hearing, the court specified that the maximum term of physical confinement to be four years and four months.
Appellant requested that he be released on electronic monitoring until disposition, so he could continue working. The prosecutor opposed the request, stating that the disposition might be a "long-term custodial sentence." The court agreed and denied appellant's request, stating that "it could conceivably be a lengthy commitment."
The dispositional hearing was held on February 8, 2007. Appellant's father and sister were notified of the hearing but did not attend. Defense counsel indicated that appellant wished to waive their presence. He informed the court that he had "explained to [appellant] that . . . the likelihood of today's sentence is going to be something significant, but he wishes to go forward without them." Defense counsel discussed treatment for appellant's mental health problems and requested that the court "grant [appellant] a year in the facility instead of sending him to the California Department of Corrections." The prosecutor argued that appellant would receive better mental health treatment at the DJF (formerly the California Youth Authority) rather than a local facility.
On appeal, appellant emphasizes that his prior offenses were misdemeanors, and that he did not face felony charges until the most recent petition was filed. He asserts that the prosecutor did not tell him that a trial would give him the opportunity to confront witnesses; nor did she tell him he was facing the possibility of a DJF commitment.
Appellant has had ongoing contact with the juvenile justice system since 2005, and has been committed to the JJF or been on electronic monitoring almost continually since that time. Prior to the present petition, he has been before the court on seven occasions. In each case, he has waived his constitutional rights and admitted the allegations in the petition.
At the hearing on the petition, the prosecutor informed appellant that admitting the allegation would increase his maximum possible time in confinement to over five years. She told appellant that if he did not admit the allegation, he would be entitled to a trial, and described that the court would listen to witness testimony and that appellant could elect whether or not to testify. Appellant indicated he understood. The court later informed appellant of the maximum term of confinement, and asked if he still wished to make an admission. Appellant indicated that he did.
It has long been held that a minor is afforded the protections pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d.122. (In re Edwardo L. (1989) 216 Cal.App.3d 470, 476.) The minor must be advised of and validly waive his right to a trial, his right against self-incrimination and his right of confrontation. (People v. Howard, supra, 1 Cal.4th 1132 at p. 1175.) The record must affirmatively show that the admission is voluntary and intelligent under the totality of the circumstances. (Ibid.; People v. Mosby (2004) 33 Cal.4th 353, 360.) However, explicit admonitions and waivers are not required. (Howard, at pp. 1177-1179.)
There was considerable discussion among the trial court and counsel that appellant faced a lengthy commitment. There was argument concerning appellant's commitment to the CDCR-DJF, and the difference in treatment between a local and state facility. Defense counsel indicated he had discussed with appellant the fact that his sentence would be "something significant."
We reject appellant's argument that he was unaware of the seriousness of the charges, the consequences of the plea or the potential length of his commitment. The totality of the circumstances demonstrates appellant's knowing, intelligent and voluntary admission to count 2.
Application of Welfare Institutions Code Sections 731 and 733
Appellant argues that new legislation bars his commitment to CDCR-DJF. Under this legislation, a CDCR-DJF commitment is limited to juveniles who commit offenses enumerated under Welfare and Institutions Code section 707, subdivision (b).) Appellant argues that his most recent offense (a battery) is not an enumerated offense, thus his commitment should be reversed. He claims the new legislation should be applied retroactively to those minors whose cases are not yet final on appeal.
Welfare and Institutions Code section 731 provides that the juvenile court may commit a minor to the CDCR-DJF if the ward has committed an offense described in section 707, subdivision (b) "and is not otherwise ineligible for commitment to the division under Section 733." (§ 731, subd. (a)(4).)
Welfare and Institutions Code section 733, subdivision (c) provides that a minor shall not be committed to the CDCR-DJF if the minor "is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707. . . ." Section 733, subdivision (c) further provides that "[t]his subdivision shall be effective on and after September 1, 2007."
Prior to oral argument, appellant filed a letter brief citing two recent cases, In re Carl N. (2008) 160 Cal.App.4th 423 and In re Brandon G. (2008) 160 Cal.App.4th 1076, both of which held that sections 731 and 733 of the Welfare and Institutions Code may not be applied retroactively. He acknowledges that his argument is contrary to these authorities, but claims they were wrongly decided.
Appellant notes that statutory amendments that ameliorate punishment are given retroactive effect, so the lighter punishment will be imposed. (See In re Estrada (1965) 63 Cal.2d 740, 748; see also People v. Rossi (1976) 18 Cal.3d 295, 298.) He argues that Welfare and Institutions code sections 731 and 733 are ameliorative because state facilities "are more punitive, controlling, and confining than placements, camps and other [juvenile] facilities." He asks us to hold that legislative amendments barring commitment of less serious offenders to the DJF are an amelioration of punishment.
A ward in In re Carl N. challenged his commitment to DJF, arguing that Welfare and Institutions Code sections 731 and 733 should apply retroactively. The reviewing court rejected his assertion because an amended statute applies prospectively unless the Legislature clearly expresses an intent to the contrary. (In re Carl N., supra, 160 Cal.App.4th at p. 437.) The court in In re Brandon G. held that the statutes do not apply retroactively because the plain language of section 733 provided that it would be effective on or after September 1, 2007. (In re Brandon G., supra, 160 Cal.App.4th at p. 1081.)
In re Carl N. and In re Brandon G. point out that section 731.1 gives a juvenile court discretion to recall the commitment of a ward "upon the recommendation of the chief probation officer of the county" when the ward's commitment offense was not a 707 subdivision (b) offense and the ward "remains confined in an institution operated by [DJF]. . . on or after September 1, 2007." (Wel. & Inst. Code, § 731.1; In re Carl N., supra, 160 Cal.App.4th at p. 436; In re Brandon G., supra, 160 Cal.App.4th at p. 1081.)
Appellant's argument is further undermined because Welfare and Institutions Code sections 731 and 733 are not solely punitive, but further the objective of rehabilitation. The juvenile system now recognizes punishment as a rehabilitative tool. (In re Carl N., supra, 160 Cal.App.4th at p. 432.) Moreover, the statutes do not address punishment or penalties, but instead govern where a ward may serve time for the purposes of rehabilitation. (Id. at p. 438.)
We agree with the analysis in both cases and decline appellant's invitation to depart from these authorities.
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.