Opinion
F061129 Super. Ct. No. 10CEJ600049-1
08-18-2011
In re A.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.B., Defendant and Appellant.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Judge Arax presided over the jurisdictional hearing; Judge Kalemkarian presided over the dispositional hearing.
APPEAL from a judgment of the Superior Court of Fresno County. Brian M. Arax and David C. Kalemkarian, Judges.
Before Cornell, Acting P.J., Dawson, J. and Detjen, J.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant challenges jurisdictional and dispositional orders entered on a Welfare and Institutions Code section 602 (hereafter, section 602) petition. The petition arose from a home invasion robbery. Appellant A.B., now an adult, contends the juvenile court erred in failing to advise him, prior to his admission of two counts of the petition, of his right to confront and cross-examine witnesses as required by Boykin v. Alabama (1969) 395 U.S. 238, 243 (Boykin)and of his right to compel the attendance of witnesses as required by California Rules of Court, rule 5.778 (b)(4). He also contends reversal is required because his special educational needs were not considered by the juvenile court when it committed him to the Department of Juvenile Justice. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
1. The Facts.
On October 17, 2009, appellant (then 17 years of age) and another male went to the home of Joshua, one of appellant's friends. Joshua, who was home with his girlfriend, Roxanne, admitted appellant and the other boy. After a few minutes, appellant went into the bathroom and emerged holding a knife. Appellant held the knife to Joshua's neck and opened the door to four other males, two of whom were also armed with knives. Joshua and Roxanne were bound on the floor and the intruders searched the apartment. When Joshua's father returned home, appellant knocked him down and another intruder kicked him in the head. The six intruders fled with a laptop and other property.
2. The Jurisdictional Hearing.
The district attorney filed a section 602 petition against appellant alleging eight felony counts: two counts of robbery (Pen. Code, § 211, counts 1 & 7), two counts of residential burglary (Pen. Code, §§ 459, 460, subd. (a), counts 2 & 8), two counts of false imprisonment by violence (Pen. Code, § 236, counts 3 & 6), two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), counts 4 & 5).
On June 14, 2010, appellant admitted counts 1 and 3; the remaining counts were dismissed. Prior to his admission of the two counts, the juvenile court advised appellant of various rights. The advisements relevant to the issues raised on this appeal were given in the following terms (paragraph breaks and transcript designation of the identity of the speakers are omitted; appellant's responses are set forth in brackets): "Now, if you make an admission, I want to make sure that you're understanding what's happening. So, first, are you thinking clearly? [Yes, sir.] Have you had enough time to talk to your attorney? [Yes.] And to think about whether this is a good idea or not? [Yes, sir.] Do you feel like anyone is forcing you to do this? [No, sir.] [I]f you do make an admission, you give up rights. You give up rights to a trial, we call it an adjudication, before a judge, not a jury. At the trial, the facts and what is said to have happened as against you must be proven to the highest standard we have in the law in that hearing or trial. That's called beyond a reasonable doubt. If that is not proven, then you face no consequences. Now, at that hearing or trial, you have the right to an attorney. And, if you cannot afford one, one is paid for on your behalf by the State of California. That attorney takes on witnesses and evidence against you and takes on witnesses or evidence for you, if any. You have a right to get up on the stand and to testify, that is, to tell your story of what happened. But you also have the right to remain silent. You do not have to say a word. And, if you exercise or use that right to remain silent, no judge in the world could hold that against you. Do you understand those rights? [Yes, sir.] Are you willing to give them up in order to make your admission? [Yes, sir.]"
After inquiry and admonition concerning other consequences of the admission of counts 1 and 3, the juvenile court made the following findings: "When he gave me his admission, I believe that it was voluntary. When he gave up his rights, I believe it was on a knowing, intelligent and voluntary basis. [¶] I think he was adequately advised of the consequences of his conduct and understood those consequences."
3. The Dispositional Hearing.
Prior to the dispositional hearing, the probation officer filed a report and recommendation. It stated that appellant's mother said he "was not attending school while he lived with her because many schools would not accept him." Appellant told the probation officer he had been expelled from middle school and that he was an RSP student (that is, was an exceptional needs student (see Ed. Code, § 56362, subd. (a)(1), providing for Resource Specialist Program (RSP) teachers). The probation officer reported that appellant was currently enrolled at a Fresno high school as a ninth grader in the RSP. The report indicated, however, that appellant had not attended school and had not received any grades. The report stated that while appellant had been in custody, he had attended school regularly and had received five A's and one B. Finally, the report stated that the officer had contacted an intake consultant at the Division of Juvenile Justice. The consultant reported that appellant "would be given a battery of tests to assess additional programs and services required" and that his "educational needs would also be addressed."
Appellant's counsel submitted a six-page statement in mitigation. Counsel stated that appellant's culpability was reduced because he "was under the influence of four Xanax on the day of the incident, and he was only vaguely aware of what he was doing during the robbery." Concerning appellant's educational status, counsel wrote: "Though [appellant] has a very sketchy and unrecorded scholastic record in the past years, he has been diligent in his efforts to perform in the Juvenile Justice Campus school. He has received straight A's in all classes, and his teacher ... [reports that appellant] is 'a wonderful addition to the class.'" In a handwritten letter to the court appended to the statement in mitigation, appellant articulated a goal of working part-time and going to college. Appellant sought placement in a local program.
At the July 22, 2010, dispositional hearing, the juvenile court committed appellant to the Department of Corrections and Rehabilitation Division of Juvenile Justice for a maximum of five years. Among other findings, the court stated that appellant's "[e]ducational records do not indicate that a determination has been made that this is an individual with exceptional needs." The court commented that appellant is "obviously very intelligent, and you've proven that in school. Which almost seems to make what you did that day seem worse, rather than better, because you do have a very good brain, and you're able to put it to good use and able to think well and act appropriately. But in this instance, apparently, it gave you an opportunity to use it not for good, but for bad."
DISCUSSION
Appellant asserts that, prior to his admission, the juvenile court failed to advise him of his right to confront, cross-examine and subpoena witnesses. He argues that the instruction, "[t]hat attorney takes on witnesses and evidence against you and takes on witnesses or evidence for you, if any," cannot be construed as a proper advisement of one's right to confront, cross-examine and subpoena. Nor, he argues, do the totality of the circumstances of the case alter that conclusion.
1. The Right to Confront and Cross-Examine Witnesses.
Three federal constitutional rights are involved in a waiver that takes place when a crime is admitted: (1) the privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the right to confront one's accusers. (Boykin, supra, 395 U.S. 238, 243.) Boykin does not, however, require specific articulation of each right waived by the admission, as long as it is clear from the record that the admission was voluntary and intelligent. (People v. Howard (1992) 1 Cal.4th 1132, 1177.) The record must affirmatively demonstrate that the admission was voluntary and intelligent under the totality of the circumstances. (Ibid.)
The right to trial by jury is not afforded to juveniles in juvenile court proceedings. (In re Ronald E. (1977) 19 Cal.3d 315, 323, fn. 4.)
In the present case, the juvenile court expressly advised appellant of the Boykin rights, as we have set forth in the statement of facts. While the court did not use the phrase "confront your accusers," it did expressly advise appellant that the district attorney had to prove the case against appellant and that appellant's attorney would be permitted to "take on" the witnesses against appellant. The meaning of that phrasing is unmistakable and possibly conveys to a teenager the meaning of this right better than the more abstract phrase "confront" one's accusers. In any event, the advisements given by the juvenile court were sufficient, in light of all the circumstances of the hearing, to affirmatively show that appellant's admission of the petition was intelligently and voluntarily made. That is to say, nothing in the additional colloquy between the juvenile court and appellant gives any indication that appellant did not understand the rights he was giving up by admitting the petition. Accordingly, appellant has not established that his admission of the petition was invalid under the federal Constitution. (People v. Howard, supra, 1 Cal.4th at p. 1178.)
2. The Right to Compel the Attendance of Witnesses.
In addition to the requirements enumerated in Boykin for advisement and waiver of rights, California Rules of Court, rule 5.778 (b)(4) requires the juvenile court to advise "those present" of "[t]he right to use the process of the court to compel the attendance of witnesses on the child's behalf." We agree with appellant that the juvenile court's advisement that counsel could "take[] on witnesses or evidence for you, if any" does not substantially convey the right to compel the presence of witnesses on appellant's behalf.
The right of an accused to have compulsory process for obtaining witnesses in his favor is found in the Sixth Amendment and is applicable to the States through the Fourteenth Amendment. (Washington v. Texas (1967) 388 U.S. 14, 18.) No California appellate case has required the trial courts to advise a defendant (or child) of such a right or to obtain and record a waiver of that right before taking a guilty plea (or admission, in a section 602 proceeding). (See People v. Salazar (1979) 96 Cal.App.3d Supp. 8, 12.) The requirement of such an advisement comes, instead, from the Rules of Court.
Violation of a requirement of the Rules of Court is subject to a different standard of review than is Boykin error. The Rules of Court are rules adopted by the Judicial Council pursuant to its authority under article VI, section 6, subdivision (d) of the California Constitution. That article provides, in pertinent part, "the council shall ... adopt rules for ... practice and procedure." Any error as to a matter of procedure does not result in the setting aside of a judgment unless, "after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of ... resulted in a miscarriage of justice." (Cal. Const., art. VI, §13.) Appellant, therefore, is only entitled to reversal if the record establishes prejudice; in other words, that it is reasonably probable he would not have admitted the petition if he had been advised clearly of the right to subpoena witnesses. (See In re Ronald E., supra, 19 Cal.3d at pp. 325-326 [error in nonconstitutionally compelled advisement does not result in reversal if the error does not prejudice defendant]; In re Michael B. (1980) 28 Cal.3d 548, 555-556 [error in Welfare and Institutions Code section 777 advisement does not result in reversal absent showing of prejudice]; People v. Superior Court (Zamudio)(2000) 23 Cal.4th 183, 192 [error in Penal Code section 1016.5 advisement does not vacate judgment without proof defendant would not have entered no contest plea if he had been properly advised]; People v. Williamson (1933) 134 Cal.App. 775, 780, 782 [error in failing to instruct jury pursuant to Penal Code section 1127b does not reverse a conviction without proof that doing so would have resulted in a different verdict].)
In light of the substantial benefit obtained by appellant in the plea bargain, the strong proof of his commission of the acts set forth in the petition, and the complete absence in the record that there were, in fact, witnesses appellant might have wished to call on his behalf, we conclude the requisite advisement would not have "persuaded petitioner to deny the truth of the allegations." (In re Ronald E., supra, 19 Cal.3d at p. 326.) Accordingly, appellant is not entitled to reversal.
3. The Decision to Commit Appellant to the Department of Corrections and Rehabilitation Division of Juvenile Justice.
Appellant also contends reversal is necessary because "the court failed to discharge its duty to inquire about" any exceptional educational needs that might have been disclosed in an individualized education program (IEP) developed pursuant to Education Code section 56362. In appellant's view, there necessarily was an IEP that could have been made available to the court if the probation officer had tried harder, and the IEP might have given the court information that would have caused it to select a local program instead of commitment to the Division of Juvenile Justice.
Appellant has forfeited this argument by failing to raise the matter in the juvenile court and failing to make a record sufficient to support the claim on appeal. Appellant's entire presentation in the juvenile court was based on the idea that he had shown he was a good student, that he now realized the importance of an education, and that he wanted to go to college. He did not contend he had exceptional educational needs, nor did he request a continuance so that the IEP request from his former school in Los Angeles County could be obtained. As we read the probation officer's report, appellant never actually attended school once he was sent back to Fresno County by his mother and there is no indication in the record that the Fresno Unified School District identified the need for an IEP or had an opportunity to prepare one. The information before the court— information upon which appellant asked the court to rely in making its dispositional order—was that appellant had been an exemplary student during the three months he spent in the controlled environment of the Juvenile Justice Campus. Because of the reasonable choice of appellant and his attorney to present the case in this manner, appellant will not now be heard to complain that the court failed to address claims of educational deficiencies—claims that, at this point, are pure speculation unsupported by the record. Further, because the choice to emphasize appellant's educational potential as part of his plan for self-rehabilitation was clearly a reasoned tactical choice, the record does not establish constitutional ineffectiveness of counsel for failing to demand production of an IEP. (See Strickland v. Washington (1984) 466 U.S. 668.)
DISPOSITION
The orders of the juvenile court are affirmed.