In re B.B.
Filed 11/7/13 In re B.B. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
In re B.B., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
B.B.,
Defendant and
Appellant.
F065556
(Kern
Super. Ct. No. JW127061-00)
FOR REHEARING
THE COURT:
It is
ordered that the opinion filed herein on October 11, 2013, be modified
in the following particulars:
1. On page 9, the first paragraph beginning “The
record reflects†is deleted.
2. On page 15, the second full paragraph
beginning “The record further undermines†is deleted and the following
paragraph inserted in its place:
The
record further undermines appellant’s claim that he signed the waiver and
admitted the allegations because he was promised his immediate release. At the evidentiary hearing on his motion to
withdraw, appellant admitted he signed the waiver and verbally admitted the
allegations in court, which occurred on August
12, 2011. However, he
claimed he only made those admissions because his attorney promised he would be
released from juvenile hall if he waived his rights, he did not read the waiver
form, and he signed the form because he wanted to be released from juvenile
hall. Appellant was not immediately
released from custody after he signed the waiver form and made the admissions
on August 12, 2011.
though he remained in custody pending the DEJ evaluation, he did not immediately
move to withdraw his waiver and admissions, or claim he was supposed to be
released after he signed the waiver and admitted the allegations at the August 12, 2011, hearing.
There is no
change in the judgment. Appellant’s
petition for rehearing is denied.
_____________________
DETJEN, J.
WE CONCUR:
_____________________
LEVY, A.P.J.
_____________________
KANE, J.
Filed
10/11/13 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
In re B.B., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
B.B.,
Defendant and
Appellant.
F065556
(Kern
Super. Ct. No. JW127061-00)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of Kern County. Jon E. Stuebbe, Judge.
Linda K.
Harvie, 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, Julie A. Hokans and Robert
Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant
B.B. admitted multiple allegations in a juvenile wardship petition (Welf. &
Inst. Code, § 602, subd. (a)). He
was found eligible and suitable for Deferred Entry of Judgment (DEJ) and placed
in the program subject to specific terms and conditions of probation. One year later, he was found in violation of
the terms of DEJ. At that time,
appellant moved to withdraw his admissions to the original petition and claimed
his admissions were involuntary, and he was never advised by his attorney or
the court as to how he could violate the terms of DEJ. The court denied his motion.
On appeal,
appellant argues the court should have granted his motion to withdraw his
original admissions because his admissions were not knowing and voluntary, and
he was never advised about the nature and circumstances of the DEJ
program. Appellant also argues the court
failed to find a factual basis for his admissions, and the court abused its
discretion when it found two of the offenses were felonies and not
misdemeanors. We affirm.
On July 28,
2011, officers from the Bakersfield Police Department responded to a burglary
dispatch. A witness reported she saw
three suspects in the backyard of a residence, and they were breaking a
window. There was damage to the
residence’s door and windows. Another
witness contacted the officers and pointed out the three suspects, who were
still in the area.
The police
detained appellant, D.W., a documented member of the Westside Crips, and D.P.,
a documented member of the Country Boy Crips.
The officers found a loaded firearm in close proximity to where the
three suspects were detained. Appellant
was wearing a hat with the letter “W†on it.
An officer reported the hat was significant because it represented the
Westside Crips. The attempted burglary
occurred within the traditional boundaries of the Westside Crips.
On August
1, 2011, a juvenile wardship petition was filed in the Superior Court of Kern
County which alleged appellant, who was 16 years old, committed count I,
attempted residential burglary (Pen. Code,
§§ 664/460, subd. (a)); count II, carrying a loaded firearm (§ 12031,
subd. (a)(2)(F)); count III, active participation in a criminal street gang
(§ 186.22, subd. (a)); and count IV, misdemeanor vandalism (§ 594,
subd. (b)(2)(A)). Appellant was in
custody in juvenile hall.
Determination of DEJ Eligibility
The
appellate record contains a copy of Form JV-750, “Determination of Eligibility,
Deferred Entry of Judgment—Juvenile.â€
There is no file stamp to indicate when Form JV-750 was filed. The form reflects the prosecutor determined
appellant was eligible for DEJ. The
following preprinted boxes were checked:
he was 14 years of age or older; he was alleged to have committed at
least one felony; there was no allegation he committed an offense described in
Welfare and Institutions Code section 707, subdivision (b); he had not
previously been declared a ward of the court based on the commission of a
felony; he had never been committed to the California Youth Authority; he had
successfully completed a previous informal probation; and his probation had
never been revoked.
At the
bottom of Form JV-750, there is a checkbox to indicate whether Form JV-751,
“Citation and Written Notification for Deferred Entry of Judgment—Juvenile†was
attached. This box was not checked.
Even though
that box was not checked, the record also contains Form JV-751, “Citation and
Written Notification for Deferred Entry of Judgment—Juvenile.†This document was filed on August 1,
2011. It provides notice to appellant
and his parent or guardian of the hearing date.
It also contains the lengthy, preprinted notification about the nature
of and circumstances of the DEJ program, what type of probation conditions
could be imposed, and the circumstances under which the juvenile could be found
in violation of probation and DEJ.
The instant
record does not contain proofs of service for either Form JV-750, on
appellant’s eligibility for DEJ; or Form JV-751, the notice of hearing and
notification of the DEJ’s terms and conditions, to indicate whether one or both
of these forms were served on appellant, his parent or guardian, or his attorney. As we will explain, however, the record shows
that appellant, his parent, and his attorney were well aware that appellant had
been found eligible for DEJ.
On August
2, 2011, appellant appeared for the detention hearing with his father and his
attorney. He denied the allegations, and
the court ordered appellant to remain in juvenile hall.
The Waiver of Rights Form
On August 12, 2011, an “Advisal and
Waiver of Rights†Form was filed which was initialed and signed by
appellant. It stated that he would admit
all four allegations in the petition; his attorney had explained his
constitutional rights to him; he understood his constitutional rights; he
knowingly, intelligently, and voluntarily waived each of those rights “in order
to make the admissions and to take advantage of any promises made to meâ€; and
he had not been promised anything to waive his rights “[o]ther than receiving
D.E.J. acceptance.†Appellant initialed
each statement.
Appellant also initialed the
following advisement:
“I understand
what I am accused of doing and what the charge(s) are in the count(s) I am
admitting. I understand what might
happen to me based on my admission(s), including the possibility of probation,
commitment to Juvenile Hall, Avenues to Change …, commitment to Camp Erwin Owen
…, commitment to Kern Crossroads Facility …, or the Department of Corrections
and Rehabilitation Division of Juvenile Justice .…â€
Appellant initialed the advisement
that he had talked to his attorney about the charges, his rights, possible defenses,
and possible sentences, and the maximum term of confinement was four years four
months.
Appellant’s attorney signed the
form and declared he explained each provision and was satisfied appellant
understood. He further declared that he
joined in appellant’s waiver and he stipulated “to a factual basis for each
admission.â€
Appellant’s Admissions
Also on
August 12, 2011, appellant appeared in court with his brother and his
attorney. Appellant’s attorney stated
appellant’s father had previously been present but had to leave because of
health issues.
The court
reviewed the waiver of rights form, showed it to appellant, and asked if he
initialed each line himself. Appellant
said yes. The court stated that
appellant’s initials indicated he understood his rights, and asked him if that
was true. Appellant said yes. The court asked appellant if he signed the
form himself, and understood he was signing a waiver of rights form, and he
said yes.
The court
asked appellant if anyone made any promises to get him to sign the form, other
than the DEJ referral. Appellant said
no. Appellant’s attorney clarified:
“[T]hat waiver
and admission is conditioned upon his being accepted into the deferred entry of
judgment program. And he reserves the
right to withdraw that waiver in the event he’s not found suitable and
admitted.â€
The court
acknowledged appellant had only been referred to DEJ and not yet found
suitable, and asked appellant if that was correct. Appellant said yes. The court asked appellant if he was waiving
his rights of his own free will, and appellant said yes.
The court
asked appellant’s attorney if he stipulated to a factual basis for appellant’s
admissions to all of the allegations.
Appellant’s attorney said yes, “conditioned upon his being acceptedâ€
into DEJ.
The court
advised appellant of the allegations in the juvenile petition, and appellant
admitted all four allegations. The court
again asked appellant if anyone promised any special favors to him in exchange
for his admissions, “other than what’s been stated as far as DEJ is concerned,â€
and appellant said no.
The court
found appellant knowingly, intelligently, and voluntarily waived his rights and
entered his admissions, and there was a factual basis for the admissions.
Appellant’s
attorney asked the court to release appellant from custody to a suitable
relative. The court declined to do
so. It ordered appellant to remain in
custody and set the dispositional hearing.
Probation Report
On August
26, 2011, the probation report was filed, which contained a summary of the
facts regarding the criminal allegations, as set forth in the factual statement
above. The report stated that appellant
had requested DEJ based on his admissions to the allegations in the petition,
he was eligible and suitable for DEJ, and recommended certain terms and
conditions of probation. The report
stated appellant lived with one of his two brothers. Appellant and his father had a good
relationship, but the father was unable to care for appellant because of health
problems.
In the
course of the report, the probation officer stated that appellant had been
extensively interviewed about his substance abuse issues, his attendance
problems at school, his expressed motivation to change his behavior, and that
he knew it was important for him to succeed in the DEJ program.
“The minor
appears to know what he needs to do in order to be successful and complete the
Deferred Entry of Judgment program; however, he is going to have to look beyond
his current situation and live up to his whole potential. The
minor was informed if [he] fails Deferred Entry of Judgment, a commitment
program may be recommended.â€
(Italics added.)
Dispositional Hearing
On August
26, 2011, the court conducted the dispositional hearing. Appellant was present with his brother, his
father, and his attorney.
The court read the probation report
and noted appellant admitted the allegations so he could be considered for
DEJ. The court advised the parties that
appellant had been found eligible and suitable for the DEJ program. The court asked appellant’s attorney if there
was any reason not to proceed.
Appellant’s attorney replied:
“I continue to
believe that the application for [DEJ] is appropriate, and I think that
[appellant], given the appropriate support, will be successful in the
program. I think he has the substance
that it is going to take to complete the program. He’ll have this case dismissed in relatively
short order. [¶] His father is adamantly opposed to
[appellant] taking the deferred entry of judgment. [Appellant] … having discussed this matter
with me, was initially confused with regard to whether he wanted to take the
deferred entry of judgment or not. And I
told him that it was his decision. I was
clear that I was not trying to compel him to do anything or shove something
down his throat that he did not want to do.
He vacillated as to what he wanted to do and/or not to do. And I
believe at this point it’s his decision to proceed with the deferred entry of
judgment disposition. [¶] So that being the case, I don’t see a reason
not to proceed.†(Italics added.)
The court
advised appellant that it did not care whether or not his case went to a
hearing or he went into the DEJ program.
The court explained that the “upside†of DEJ was that he would get out
of custody, and the charges would be dismissed and eliminated from his record
if he followed the court’s orders.
“[THE
COURT]: Down side, of course, is
conditions, then you got this record later on, and then you get locked up
because you violated the terms of your probation. That’s the down side.
“On the other
hand, if you say, ‘I do not want to do that deferred entry of judgment. I want to go to trial,’ you stay in custody
and who knows what will happen at the trial, who knows whether you’re guilty,
who knows whether you’re not guilty. I
have no idea how that’s going to turn out.
If you’re not guilty, the day you’re found not guilty, you go home. The day you’re found guilty, you stay in
custody for awhile.
“Again, it
doesn’t make a difference to me what you choose to do, but it’s your choice,
ultimately.
“Do you want to
go with the deferred entry of judgment program, or do you want to have your
case go to trial?
“[APPELLANT]: I’ll go way.â€
Thereafter, the court found
appellant eligible for DEJ pursuant to Welfare and Institutions Code section
790, placed him on probation, and released him to the custody of his father
and/or his brother. The court imposed
several terms and conditions, including the completion of 80 hours in the
juvenile court work program and to work as assigned; attend and satisfactorily
complete Blanton Academy, obey all rules and regulations, and immediately
enroll; not to possess or use any weapons; not to possess, use, or consume any
illegal drugs or intoxicants; and attend school regularly and obey all school
rules.
At the
conclusion of the hearing, the court advised appellant:
do: 80 hours in the work program; can’t
be in possession of dope, stolen property, or weapons; got to go to school; got
to obey the law. You do all that, a year
from now, none of this happened.â€
(Italics added.)
Neither appellant nor his attorney objected to the court’s
DEJ orders.
The record
reflects that appellant was not immediately released from custody on the day of
the dispositional hearing and spent a few more days in juvenile hall.
On April 6,
2012, the Kern County Probation Department filed a memorandum that appellant
violated the terms of the DEJ program (Welf. & Inst. Code, § 793) as
follows: he tested positive for
marijuana in September 2011 and January 2012; he failed to complete the
juvenile work program; he failed to attend school regularly, and he was dropped
from Blanton Academy because he failed to comply with attendance requirements.
On April
13, 2012, appellant denied the allegations.
On April
30, 2012, the court convened a hearing regarding appellant’s possible exclusion
from the DEJ program. Appellant failed
to appear and a bench warrant was issued.
On May 3,
2012, the bench warrant was returned, and appellant appeared in court with his
father. Appellant orally moved to
withdraw his original admissions to the four counts, as entered on August 12,
2011.
On May 9, 2012, appellant’s
attorney filed a written motion for appellant to withdraw his admissions to the
original petition. The motion asserted
that at the August 26, 2011, dispositional hearing, appellant did not
thoroughly understand the circumstances or consequences of his admissions, and
“the significance of what may be and was a minor violation of the terms of the
[DEJ] program.†The motion also asserted
that appellant “apparently†was not allowed to speak to his father, “who
vehemently†opposed his entry into DEJ.
On May 14, 2012, the prosecution
filed opposition, and asserted appellant’s motion should be denied because he
signed the written plea form, and the court fully advised him of his
constitutional rights.
Continued Hearing
On May 15,
2012, the court released appellant to his father’s custody on “no slack†terms,
that he was limited to going between his home and school. On June 7, 2012, the court lifted the no
slack terms. On July 11, 2012, the
probation department filed a report that appellant repeatedly left his home
without permission, failed to attend school, and his whereabouts were unknown.
The Court’s Hearing on Appellant’s Motion
On July 11,
2012, the court conducted an evidentiary hearing on appellant’s motion to
withdraw and his alleged violation of DEJ.
Appellant testified that he initially denied all the charges, but his
attorney “kept trying to coerce me to take DEJ†and appellant “didn’t understand
it.†Appellant did not understand that
he was giving up his constitutional rights to present a defense and call
witnesses. His attorney promised he
would get out of juvenile hall if he waived his rights.
Appellant testified he did not read
any of the language on the waiver of rights form, he knew his father did not
want him to accept DEJ, but he signed the form anyway because he wanted to be
released from juvenile hall. On
cross-examination, appellant admitted he initialed each part of the waiver form
and signed the document, but insisted he did not read anything and just signed
his name so he could be released from juvenile hall.
The Court’s Denial of the Motion to Withdraw
After appellant testified, the
prosecutor argued he failed to meet his burden to withdraw his admissions. The prosecutor noted that appellant’s release
from juvenile hall was part of the bargain in exchange for his admissions.
Appellant’s attorney argued
appellant did not understand the ramifications of waiving his rights and
admitting the allegations, and he only signed the advisement form so he could
get out of juvenile hall.
The court denied appellant’s motion
and found he failed to carry his burden of proof to withdraw his
admissions.
“I do note that
he didn’t get out on the day he made the admission. He had to wait for the DEJ suitability report,
which was from the 8th to the 26th [of August 2011]. And on the date he made the admission, the
record doesn’t reflect that his father was here. The record reflects his brother was
here. His father wasn’t here until the disposition, the deferred entry of
judgment disposition date, so the testimony is inherently unbelievable.†(Italics added.)
The Probation Violation
The court
then conducted an evidentiary hearing on appellant’s alleged probation violations. Robert Espinosa, appellant’s probation
officer, testified he met with appellant both before and after he entered his
admissions and was placed in the DEJ program.
Espinosa testified that on August 15, 2011, he explained the terms and
conditions of DEJ to appellant, consistent with his practices of informing
minors about DEJ.
“Every time I
talk to a minor about deferred entry of judgment, I pretty much tell them you
pretty much have to be perfect for that one full year. You
know, you can’t make any mistakes. You
can’t do anything. If you do, all of the
charges are going to come up against you at your review hearing. [¶] … [¶]
… I tell them what, most likely, my recommendations will be. You
know, obey your parents, attend school regularly, obey all school rules. If you have drug orders, you will be randomly
drug tested. You cannot test dirty for
anything. If he’s going to go to Blanton
Academy, he has to successfully complete Blanton Academy. I told him the ramifications, if you will, or
what the possible other dispositions or options that you were to face if you
were to fail DEJ.†(Italics added.)
Espinosa testified appellant was
advised that he was subject to drug testing orders; had to complete 80 hours in
the juvenile court work program; enroll in and successfully complete Blanton
Academy; and enroll in and attend school.
Appellant tested positive for marijuana in September 2011 and January
2012; failed to regularly attend school; failed to perform the required hours
in the work program; and he was dropped from Blanton Academy for failing to
attend.
The Court’s Orders
The court found appellant had
failed DEJ and excluded him from the program.
On July 23, 2012, the court
concluded the dispositional hearing; set aside the prior probation orders; and
adjudged appellant a ward of the court.
The court set appellant’s maximum confinement time at four years eight
months, and found that counts II and III in the original petition were
felonies. The court committed appellant
to Camp Erwin Owen.
DISCUSSION
Denial of
Appellant’s Motion to Withdraw
Appellant contends the court should
have granted his motion to withdraw.
Appellant asserts his admissions were not knowing, intelligent, and
voluntary because he just wanted to get out of custody. Appellant also asserts he was criminally
unsophisticated; the court’s advisements were incomplete; he entered the plea
against his father’s wishes; and his attorney did not explain the nature and
consequences of his plea.
We will
review the standard of review for a motion to withdraw an admission in a
juvenile case.
A.
Motion to
Withdraw
“Penal Code
section 1018, which governs the standards for withdrawal of a plea in criminal
cases, is not expressly applicable to admissions in juvenile court, and it does
not have a statutory counterpart in delinquency proceedings. However, the principles that underlie the statute have been imported into
delinquency proceedings in other respects.
[Citations.]†(
1412, 1420, italics in original.)
name="_ftnref6" title="">
These principles include the
following. Guilty pleas and admissions
may be withdrawn before judgment and for good cause shown. (§ 1018; People v. Superior Court of
San Francisco (Giron) (1974) 11
Cal.3d 793, 796.) “Mistake, ignorance or
any other factor overcoming the exercise of free judgment is good cause for
withdrawal of a guilty plea.
[Citations.]†(
566.) The moving party has the burden to
produce evidence of good cause by clear and convincing evidence. (People
v. Wharton (1991) 53 Cal.3d 522, 585.)
“[S]ection 1018 … requires liberal
construction of its provisions to promote justice. However, the promotion of justice includes a
consideration of the rights of the prosecution, which is entitled not to have a
guilty plea withdrawn without good cause.
[Citation.]†(
Cal.App.3d 923, 928.) “Guilty pleas
resulting from a bargain should not be set aside lightly and finality of
proceedings should be encouraged.
[Citations.]†(
103.)
The
withdrawal of a plea or admission rests in the sound discretion of the trial
court, and will not be disturbed on appeal unless an abuse of discretion is
clearly demonstrated. The reviewing
court must adopt the trial court’s factual findings if supported by substantial
evidence. (People v. Wharton, supra,
53 Cal.3d at p. 585; People v. Fairbank
(1997) 16 Cal.4th 1223, 1254.)
B.
Analysis
The court
did not abuse its discretion when it denied appellant’s motion to withdraw
based on whether he was properly advised of and waived his constitutional
rights. As set forth in the procedural
history, ante, appellant initialed
and signed each line in the formal written advisement and waiver of
rights. At the hearing, the court
carefully reviewed the advisement form and repeatedly asked appellant if he
initialed and signed the document, whether he understood his rights and that he
was waiving his rights, and whether any promises had been made to induce his
waivers and admissions. In response to
each question, appellant responded that he understood and waived his rights,
and no promises had been made to him.
On appeal,
in order to defeat the impact of his written and verbal waivers and admissions,
appellant acknowledges that he signed the form, responded to the court’s
advisements, and admitted the allegations.
However, he insists that his “free and clear judgment†was overcome
because the court promised that he would be immediately released from custody
once he entered his admissions and agreed to DEJ.
The procedural history refutes this
assertion. Appellant waived his rights
and entered his admissions during the August 12, 2011, hearing. Appellant acknowledged that he was entering
his admissions based on his eligibility for DEJ, and conditioned on the
determination of whether he was found suitable for DEJ. Neither the court nor his attorney made any
statements that he was going to be immediately released upon admitting the allegations
in the petition.
At the
August 26, 2011, dispositional hearing, the court advised appellant that he was
eligible for DEJ. Appellant’s attorney
explained that appellant’s father was opposed to DEJ, but that appellant had
decided to accept the terms and conditions and enter the program. The court asked appellant whether he wanted
to accept DEJ, and appellant said yes.
During this exchange, the court
addressed appellant’s custodial status, and explained the “upside†of DEJ was
that he would get out of custody, and the charges would be dismissed and
eliminated from his record if he followed the court’s orders. But the court also advised appellant about
the “[d]own side†of DEJ, that if he failed to “follow the terms and conditions, then you get this record later on,
and then you get locked up because
you violated the terms of your probation.
That’s the down side.†The court
also advised him that he would remain in custody if he decided that he wanted a
trial on the allegations. (Italics
added.)
The entirety of the exchange
demonstrates that the court did not induce appellant to admit the allegations
on August 12, 2011, or accept DEJ on August 26, 2011, based on any promises of
leniency or the immediate release from custody.
The court advised appellant that while he would be released, he had to
comply with the terms and conditions of DEJ or he would “get locked up†for
violating probation. As we will discuss
in section II, post, the court
specifically advised appellant about those terms and conditions.
The record further undermines appellant’s
claim that he agreed to DEJ because he was promised his immediate release. As the court later noted, appellant was not
immediately released from custody after the court found he was suitable and he
agreed to DEJ on August 26, 2011. Even
though he remained in custody, he did not move to withdraw his admissions based
on the allegation that he was supposed to be immediately released after the
August 26, 2011, hearing.
Appellant also complains that he
did not receive any benefits from his admissions since he admitted all the
allegations in the petition. To the
contrary, appellant received the benefit of the DEJ program—that the entirety
of the petition would be dismissed and his record cleared if he complied with
the terms and conditions. As we will discuss
in section II, post, the terms and
conditions were not particularly onerous in this case.
Finally,
appellant argues his attorney was prejudicially ineffective for failing to
“properly investigate†his motion to withdraw.
Appellant asserts that if his attorney had conducted a proper
investigation, “he would have learned [that appellant] was correct in
testifying that he immediately agreed to the DEJ program when the court
promised release from custody. Such a
promise amounted to good cause for the motion to have been granted.â€
Appellant’s ineffective assistance
claim is meritless in light of the record.
At the probation violation hearing, appellant’s attorney verbally
advised the court that appellant wanted to withdraw his admissions. His attorney filed an extensive written
motion to withdraw, he requested and obtained an evidentiary hearing, appellant
testified at that hearing that he only agreed to DEJ because he thought he
would get out of custody, and his attorney relied on that testimony to argue
that the motion to withdraw should be granted.
Appellant’s attorney was not ineffective based on the record before this
court.
II.
Motion to
Withdraw Based on DEJ Advisements
We next
turn to appellant’s contention that his motion to withdraw should have been
granted because he never received the proper advisements about the DEJ program,
the terms and conditions, and what conduct would result in violation of
DEJ. Appellant asserts he was never
advised about “what [he] must do or—more importantly—what he must not do if he
wanted to complete the DEJ program,†and he did not understand “the
consequences of what was essentially a minor violation of the terms of the DEJ
program.â€
A.
DEJ
Advisements
We begin with the requirements for
the DEJ program. The determination of
whether to grant DEJ requires consideration of “two distinct essential elements
of the [DEJ] program,†which are “eligibility†and “suitability.†(In re Sergio R. (2003) 106
Cal.App.4th 597, 607, fn. 10, italics in original;
(a)(1)-(6).)
attorney has the duty to assess a minor’s eligibility for DEJ: “The prosecuting attorney shall review
his or her file to determine whether [the eligibility requirements set forth
above] apply.†(Welf. & Inst. Code,
§ 790, subd. (b), italics added; Cal. Rules of Court,
If the minor is found eligible for
DEJ, the prosecuting attorney “shall file a declaration in writing with
the court or state for the record the grounds upon which the determination is
based, and shall make this information available to the minor and his or her
attorney.†(Welf. & Inst. Code, §
790, subd. (b), italics added.) Upon
finding the minor eligible, the prosecuting attorney “must file†a form
entitled “Determination of Eligibility-Deferred
Entry of Judgment-Juvenile (form JV-750),†at the time that the section 602
wardship petition is filed. (Rule
5.800(b), first italics added.)
If the prosecutor determines the
minor is eligible for DEJ, the prosecutor must serve “written notification to
the minor†of his or her eligibility.
This notification may be provided in Form JV-751, entitled “Citation and
Written Notification for Deferred Entry of Judgment—Juvenile.†(See, e.g., In re C.W. (2012) 208 Cal.App.4th 654, 659-661 (
§§ 790, 791) This notice “shall
also include†notice of the hearing, “ ‘[a] full description of the
procedures for deferred entry of judgment’ [citation] and ‘[a] clear statement
that, in lieu of jurisdictional and disposition hearings, the court may grant a
deferred entry of judgment with respect to any offense charged in the petition,
provided that the minor admits each allegation contained in the petition and
waives time for the pronouncement of judgment’ [citation].†(C.W.,
supra, 208 Cal.App.4th at p. 660; § 791, subds. (a)(1)-(a)(3), italics
added.)
is ineligible for deferred entry of
judgment, the prosecuting attorney must complete and provide to the court, the
child, and the child’s attorney†the form JV-750, so stating. (Rule 5.800(e), italics added.)
eligibility is established, the juvenile court has the discretion to determine
if the minor is suitable for DEJ after consideration of certain statutory factors. (In re Usef S. (2008) 160 Cal.App.4th
276, 283-284 (Usef S.); In re Luis B. (2006) 142 Cal.App.4th
1117, 1123 (Luis B.).)
However, the juvenile court is not
required to conduct a suitability hearing if the prosecutor determines the
minor is eligible for DEJ, and the minor receives the requisite notice of his
or her eligibility, but he or she nevertheless denies the allegations of the
petition and requests a contested hearing.
(In re Kenneth J. (2008) 158
Cal.App.4th 973, 976-980 (Kenneth J.);
Usef S., supra, 160 Cal.App.4th at
pp. 281-283.) In such circumstances, the
minor’s denial of the allegations and insistence on a contested hearing are
“tantamount to a rejection of DEJ.†(
980; Usef S., supra, 160 Cal.App.4th
at p. 286, fn. 3.)
B.
Analysis
The instant
record reflects the prosecutor completed and filed Form No. JV-750, and
determined appellant was eligible for DEJ.
The prosecutor also completed and filed Form No. JV-751, written
notification as to DEJ. The instant
record does not contain proofs of service for either document.
prosecutor found the minor eligible for DEJ and failed to comply with the
notice requirements, so that the minor denied the petition and requested a
hearing without realizing that such conduct effectively waived his right to
DEJ. (See, e.g., C.W., supra, 208 Cal.App.4th at pp. 660-662.) Nor does it involve the situation where the
minor denied the petition and requested a hearing, while the prosecutor
completely failed to determine the minor’s eligibility, in the absence of any
argument that the minor was ineligible.
(See, e.g., Luis B., supra,
142 Cal.App.4th at pp. 1121-1123.)
Instead, the record reflects that all relevant parties were well aware
that appellant was eligible for DEJ before he entered his admissions, he
entered his admissions on condition that he would be found suitable for DEJ, he
was advised of his suitability for DEJ, and he agreed to the terms and conditions
of the DEJ program.
Appellant complains that he was
forced to accept DEJ against the wishes of his father. His arguments on this point are
inconsistent. First, the record
indicates that at the August 12, 2011, hearing, his father was initially present
but then had to leave the courtroom because of health problems before appellant
admitted the allegations. At the
dispositional hearing of August 26, 2011, appellant’s attorney stated that his
father was present and against appellant’s acceptance of DEJ, but neither
appellant nor his attorney explained the reason for his father’s opposition.
Appellant’s motion to withdraw his
admissions asserted that he “apparently†was not allowed to speak to his
father, “who vehemently†opposed his entry into DEJ. At the evidentiary hearing, however,
appellant testified he knew his father did not want him to accept DEJ, but
again claimed he agreed just to be released from custody. In any event, appellant did not testify that he
was not allowed to speak to his father, or offer any details about the reasons
for his father’s opposition to DEJ.
Next, appellant asserts he was
never advised about the nature of the terms and conditions of his DEJ
probation, what he had to do to comply with the program, or how he could violate
the terms and conditions. This argument
is again refuted by the entirety of the record.
Appellant was repeatedly advised by the court and his probation officer
about the terms and conditions of DEJ, that he had to comply with those terms
and conditions, and he would be returned to custody if he violated those terms
and conditions.
Indeed, the terms and conditions of
appellant’s DEJ program were simple and straightforward: the completion of 80 hours in the juvenile
court work program and to work as assigned; attend and satisfactorily complete
Blanton Academy, obey all rules and regulations, and immediately enroll; not to
possess or use any weapons; not to possess, use, or consume any illegal drugs
or intoxicants; and attend school regularly and obey all school rules. The court advised him that if he could not
follow those terms and conditions, “then you get this record later on, and then
you get locked up because you violated the terms of your program.†At the conclusion of the dispositional
hearing, the court reiterated these points:
do: 80 hours in the work program; can’t
be in possession of dope, stolen property, or weapons; got to go to school; got
to obey the law. You do all that, a year
from now, none of this happened.â€
(Italics added)
At the
hearing on his probation violation, his probation officer testified he met with
appellant before he entered the DEJ program, explained the terms and
conditions, and also explained that he “pretty much [had] to be perfect†for
one full year to comply with DEJ. “You
know, obey your parents, attend school regularly, obey all school rules. If you have drug orders, you will be randomly
drug tested. You cannot test dirty for
anything. If he’s going to go to Blanton
Academy, he has to successfully complete Blanton Academy. I told him the ramifications,
if you will, or what the possible other dispositions or options that you were
to face if you were to fail DEJ.â€
(Italics added)
Appellant violated probation
because he tested positive for marijuana in September 2011 and January 2012; he
failed to complete the juvenile work program; he failed to attend school
regularly, and he was dropped from Blanton Academy because he failed to comply
with attendance requirements. These violations
were hardly “minor,†they did not involve grey areas or unexplained
consequences of his probation conditions, and instead reflect his failure to
comply with the most basic requirements of his probation.
The
entirety of the record thus indicates appellant was fully advised of his
eligibility and suitability for DEJ, the terms and conditions of his
continuation in the DEJ program, what he had to do to successfully complete
probation, and what conduct would result in violating probation and DEJ.
III. Determination of the
Factual Basis for Appellant’s Admissions
Appellant
next contends his admissions are invalid because the court failed to find a
factual basis for the four counts alleged in the juvenile petition. Appellant concedes his attorney stipulated to
a factual basis, but asserts the court was required to conduct an independent
review of the record to determine if there was a factual basis for each
allegation. Appellant further asserts
the court’s failure to conduct an independent review was prejudicial because
there was no factual basis for any of the allegations in the petition.
A.
Factual
Basis
Rule
5.778(f)(6) (formerly rule 1487(f)(6)) provides that when a minor admits or
enters a no contest plea to the allegations in a juvenile petition, the court
must make a finding that there is a factual basis for the admission or
plea. This procedural is analogous to
the factual basis requirement in adult criminal pleas, as set forth in section
1192.5.
“[T]he
trial court must garner information regarding the factual basis either from the
defendant or defense counsel. If the
trial court examines the defendant regarding the factual basis for the plea,
the court may have the defendant describe the conduct that gave rise to the
charge [citation], or may question the defendant regarding the detailed factual
basis described in the complaint or written plea agreement. [Citation.]
If the trial court inquires of defense counsel regarding the factual
basis, counsel may stipulate to a particular document that provides an adequate
factual basis, such as a complaint, police report, preliminary hearing
transcript, probation report, grand jury transcript, or written plea
agreement.†(People v. Holmes (2004) 32 Cal.4th 432, 442.)
“[A] trial
court possesses wide discretion in determining whether a sufficient factual
basis exists for a guilty plea [or admission].
The trial court’s acceptance of the … plea, after pursuing an inquiry to
satisfy itself that there is a factual basis for the plea, will be reversed
only for abuse of discretion.
[Citation.] A finding of error
under this standard will qualify as harmless where the contents of the record
support a finding of a factual basis for the … plea. [Citations.]â€
(People v. Holmes,
1571, 1576.)
For
example, in In re Michael B. (1980)
28 Cal.3d 548, the trial court failed to enter a finding that there was a
factual basis for the minor’s admission of forgery allegations. The California Supreme Court found there was
no reasonable likelihood of prejudice because the probation report set forth
the details of the offense, the court read the charging allegations to the
minor at the hearing, and the minor admitted the allegation. (Id.
at p. 556.) “Under the circumstances,
the trial court unquestionably would have found that there was a factual basis
for [the minor’s] admission.†(
In
1557, the attorneys stipulated to a factual basis for the defendant’s guilty
plea. On appeal, however, the defendant
argued the stipulation was insufficient.
Mickens concluded any error
was harmless because the probation report “could have supported a factual basis
finding.†(Id. at pp. 1564-1565.)
B.
Analysis
Appellant’s
argument that the court failed to make the appropriate finding for a factual
basis is meritless. Appellant’s attorney
stipulated to a factual basis in both the written advisement and waiver and
before the court. The probation report
provided an extensive narrative of facts and circumstances of the allegations
in the petition, as summarized above, and the court later stated it had
reviewed that report.
Appellant acknowledges these
circumstances, but asserts a juvenile court must disregard a stipulation from
the juvenile’s attorney and conduct an independent review of the entire record
to determine the existence of a factual basis for a juvenile’s admissions. Appellant’s novel argument is based on an
opinion from the Third District, but the California Supreme Court granted
review in that case, and it may not be cited.
(In re Alonzo J., review
granted Jan. 23. 2013, S206720.)
In any event, there was no evidence
of any tension or disagreement between appellant and his attorney. While his attorney explained appellant’s
initial equivocation about DEJ, appellant indicated his decision to accept the
program. The juvenile court accepted the
stipulation about the factual basis from appellant’s attorney, and later
reviewed the probation report, which set forth the circumstances of the
allegations in the juvenile petition. To
the extent the court should have conducted a more extensive inquiry, any error
is harmless given the existence of the probation report’s factual statement.
IV.
Designation
of Offenses as Felonies
Appellant’s
final issue is that the juvenile court abused its discretion when it found two
counts alleged in the petition, and admitted by appellant, were felonies
instead of misdemeanors.
A.
Background
As set forth, ante, appellant admitted the four allegations in the juvenile
petition: count I, attempted residential
burglary (§§ 664/460, subd. (a)); count II, carrying a loaded firearm
(§ 12031, subd. (a)(2)(F)); count III, active participation in a criminal
street gang (§ 186.22, subd. (a)); and count IV, misdemeanor vandalism
(§ 594, subd. (b)(2)(A)). (CT 1-4,
RT 5-7) The parties agree that counts II
and III were “wobbler†offenses, i.e., punishable alternatively as felonies or
misdemeanors if committed by an adult.
On July 23, 2012, after the court
found appellant in violation of DEJ, it adjudged him a ward of the court, set
his maximum confinement time, and committed him to Camp Erwin Owen. The court stated it had reviewed appellant’s
case in “some detail,†and found that counts II and III were felonies and not
misdemeanors.
B.
Analysis
Welfare and
Institutions Code section 702 provides, in part: “If the minor is found to have committed an
offense which would in the case of an adult be punishable alternatively as a
felony or a misdemeanor, the court shall declare the offense to be a
misdemeanor or felony.†Thus, a decision
to treat an offense punishable as either a misdemeanor or a felony is within
the court’s broad discretion. (See
§ 17, subd. (b).) Although the
juvenile court must declare a wobbler offense as either a misdemeanor or felony
(In re Manzy W. (1997) 14 Cal.4th 1199, 1209), the court need not state
its reasons for making its determination.
(In re Jacob M. (1989) 210 Cal.App.3d 1178,
1180-1182.)
attacking the court’s determination of a wobbler offense “ ‘to clearly
show that the sentencing decision was irrational or arbitrary. [Citation.]
In the absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on
review.’ [Citation.]†(People
v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 977-978.)
Appellant apparently concedes the
court complied with Manzy W.,
expressly found counts II and III were felonies and not misdemeanors, and was
thus aware of its discretion. However,
appellant insists the court abused its discretion when it made those findings
because there was no evidence to support the two counts. In making this argument, however, appellant
solely relies on his previous assertions addressed in section III,
required to independently review the entire record to determine if there was a
factual basis for appellant’s admissions.
He does not cite to any authorities regarding the juvenile court’s
duties under Welfare and Institutions Code section 702. We have already rejected appellant’s
reject appellant’s renewed application of those arguments.
The dispositional order is
affirmed.
J.
admissions, the following facts are from the probation report.
