In re F.B.
Filed 4/2/12 In
re F.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 CALIFORNIA
FIFTH APPELLATE DISTRICT
In re F. B., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
F. B.,
Defendant and
Appellant.
F061632
(Tulare
Sup. Ct. No. JJD064628)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Juliet Boccone, Judge.
Arthur L.
Bowie, 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 Janet E.
Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
F.B. claims
his commitment to the California
Department of Corrections and Rehabilitation, Division of Juvenile Justice
(DJJ) must be reversed, and the matter remanded to the juvenile court to allow
him to withdraw his admissions, because he was not advised he would be required
to register as a sex offender for the rest of his life. For the reasons that follow, we will affirm.
On April 1,
2010, a first amended petition was filed, alleging that F.B. came within the
provisions of Welfare and Institutions Code section 602 by virtue of his commission,
against C.M., of forcible rape (Pen. Code,
lewd act on a child under the age of 14 (§ 288, subd. (b)(1); counts 2, 3,
4, 6, 8), forcible sexual penetration by a foreign object (§ 289, subd.
(a)(1); count 5), attempted forcible sodomy (§§ 286, subd. (c)(2), 664;
count 7), and attempted forcible oral copulation (§§ 288a, subd. (c)(2),
664; count 9); and his commission, against N.M., of forcible lewd act on a
child under the age of 14 (§ 288, subd. (b)(1); counts 10, 11, 13, 14,
15), forcible rape (§ 261, subd. (a)(2); count 12), forcible oral
copulation (§ 288a, subd. (c)(2); count 16), and
subd. (c)(2), 664; count 17). As to each
count, it was further alleged F.B. committed an offense against more than one
victim (§ 667.61, subd. (b)) and, as to counts 3, 4, 6, 8, 10, 11, 13, 14,
and 15, that he engaged in substantial sexual conduct with the victim
(§ 1203.066, subd. (a)(8)).
name="_ftnref3" title="">[2]
On June 24,
2010, F.B. admitted counts 2, 3, 6, 11, and 15, and the attendant special
allegations. The remaining counts were
dismissed with the People retaining the right to discuss them for dispositional
purposes. On November 16, 2010,
following a contested disposition hearing, F.B. was declared a ward of the
court and committed to DJJ for a maximum confinement time of 75 years to
life. In pertinent part, the court
ordered F.B. to register as a sex offender.
On December
1, 2010, F.B.’s attorney was relieved, and new counsel substituted, at F.B.’s
request. Counsel subsequently requested
that F.B. be held locally, as counsel believed there were grounds for a Welfare
and Institutions Code section 778/779 petition, and F.B. “should be
withdrawing” his admissions.
name="_ftnref4" title="">[3] The request was denied. No such petition was filed, or request to
withdraw admissions made, prior to the timely notice of appeal.
“When a
criminal defendant chooses to plead guilty …, both the United States Supreme
Court and [the California Supreme Court] have required that the defendant be
advised on the record that, by pleading, the defendant forfeits the
constitutional rights to a jury trial, to confront and cross-examine the
People’s witnesses, and to be free from compelled self-incrimination. [Citations.]
In addition, [the California Supreme Court] has required, as a
judicially declared rule of state criminal procedure, that a pleading defendant
also be advised of the direct consequences of his plea. [Citations.]
If the consequence is only collateral, no advisement is required.” (People
v. Gurule (2002) 28 Cal.4th 557, 633-634.)
Except for the right to a jury
trial, the procedural safeguards accorded an accused in a juvenile proceeding
are identical. (In re Ronald E. (1977) 19 Cal.3d 315, 320-321, abrogated on another
ground as stated in People v. Mosby (2004)
33 Cal.4th 353, 360-361; In re Chadwick
C. (1982) 137 Cal.App.3d 173, 182; see also Cal. Rules of Court, rule
5.778.)
Here, the
court painstakingly explained to F.B. his constitutional rights and secured
waivers thereof. The court also advised
F.B. of various consequences of his admissions, including the maximum period of
physical confinement, possible commitment to DJJ, payment of restitution and a
restitution fine, possible imposition of gang terms, potential deportation if
he was not a citizen, and requirement that he submit biological samples for
identification analysis. The court
ascertained from defense counsel that counsel had had sufficient time to
discuss the case with F.B.; had discussed with him his rights, defenses, and
possible consequences of the admissions; believed F.B. understood his rights;
and concurred in F.B.’s admissions. The
court did not, however, advise F.B. that one of the consequences of his
admissions would be the requirement that he register as a sex offender for the
rest of his life.
The
Attorney General now says no error occurred because the registration
requirement was not a direct consequence of F.B.’s admissions; moreover, as to
all counts admitted by F.B., the petition contained a written notice that
adjudication as a ward of the court for the offense and a disposition to the
California Youth Authority (the former name of DJJ) would require F.B. to
register pursuant to section 290 of the Penal Code. F.B. maintains the registration requirement
was indeed a direct consequence of his admissions, and that even assuming he
was advised of a potential registration requirement by the petition, that
advisement did not meet the court’s obligation to advise of a
v. Zaidi (2007) 147 Cal.App.4th 1470, 1481, 1484.) We conclude no prejudicial error has been
shown.
The
requirement that in guilty plea cases the defendant must be advised of all
direct consequences of conviction “relates to the primary and direct
consequences involved in the criminal case itself and not to secondary,
indirect or collateral consequences.
[Citations.] A collateral
consequence is one which does not ‘inexorably follow’ from a conviction of the
offense involved in the plea.
[Citation.]” (
1352, 1355.)
The
California Supreme Court has held that the duty to register as a sex offender
under section 290 is a direct consequence of a conviction for committing a sex
offense specifically enumerated therein.
(People v. McClellan (1993) 6
Cal.4th 367, 376; see Bunnell v. Superior
Court (1975) 13 Cal.3d 592, 605; In
re Birch (1973) 10 Cal.3d 314, 322.)
The Attorney General argues the basis of these opinions (and of
at p. 1481) has been undermined by subsequent cases holding that the sex
offender registration requirement is not considered a form of punishment for purposes
of ex post facto or cruel and/or unusual punishment analyses under the state
and federal Constitutions. (E.g.,
105-106; In re Alva (2004) 33 Cal.4th
254, 292; People v. Castellanos (1999)
21 Cal.4th 785, 796; but see People v.
Hofsheier (2006) 37 Cal.4th 1185, 1197 [though not considered punishment,
sex offender registration requirement imposes “ ‘substantial’ and
‘onerous’ burden”].) She points to cases
in which our state Supreme Court has referred, albeit in dicta, to the
requirement as being a collateral consequence of a conviction. (E.g., People
v. Picklesimer (2010) 48 Cal.4th 330, 337-338 [addressing scope of trial
court’s post-remittitur jurisdiction to issue all orders necessary to carry
judgment into effect]; People v. Ansell (2001)
25 Cal.4th 868, 872-873 [discussing statutory amendment limiting availability
of certificates of rehabilitation].)
In
addition, the Attorney General implicitly suggests lifetime registration did
not inexorably follow from F.B.’s admissions.
Section 290 mandates lifetime registration for any person convicted of a
crime enumerated therein. (
governed by section 290.008, and arises only where the minor has committed an
offense enumerated in that section and been committed to DJJ after having been
adjudicated a ward of the juvenile court as a result thereof. (Id.,
subds. (a) & (c).) Because it was
not certain at the time of F.B.’s admissions that he would be committed to DJJ,
it was also not certain the registration requirement would be triggered. (But see People
v. Zaidi, supra, 147 Cal.App.4th at p. 1485 [rejecting argument no
advisement necessary because crime to which defendant pled did not mandate
registration, but gave sentencing court discretion whether to impose].) Additionally, Welfare and Institutions Code
section 781, subdivision (a) provides a means by which F.B. will, if he is
not convicted of a felony or misdemeanor involving moral turpitude and attains
rehabilitation to the court’s satisfaction, be able to gain relief from the
registration requirement.
name="_ftnref6" title="">[5] (But see People
v. Zaidi, supra, 147 Cal.App.4th at pp. 1485-1486 [rejecting argument
that legal possibility person required to register might eventually be relieved
of requirement meant trial court need not advise of lifetime registration
requirement].)
We need not
decide the issue(s) the Attorney General raises because F.B. is not entitled to
relief in any event.
First, F.B.
failed to object to the registration requirement at the disposition
hearing. “[W]hen the only error is a
failure to advise of the consequences of the plea, the error is waived if not
raised at or before sentencing. Upon a
timely objection, the sentencing court must determine whether the error
prejudiced the defendant, i.e., whether it is ‘reasonably probable’ the
defendant would not have pleaded guilty if properly advised. [Citation.]”
(People v. Walker (1991) 54
Cal.3d 1013, 1023.) The objection
requirement applies in juvenile as well as adult proceedings. (See generally In re Sheena K. (2007) 40 Cal.4th 875, 880-881.)
Here,
although the probation officer’s report was silent on the issue, the prosecutor
mentioned the lifetime sex offender registration requirement in her comments at
the conclusion of the evidentiary portion of the contested disposition
hearing. Despite this fact, F.B. did not
object — or even express surprise — when the juvenile court ordered him to
register as a sex offender at the time it made its dispositional rulings
several days later. Because F.B. readily
could have raised the advisement omission then, his failure to do so has
forfeited his claim of error. (See
p. 377; People v. Wrice (1995)
38 Cal.App.4th 767, 771.)
name="_ftnref7" title="">[6]
Second and
more importantly, F.B. has failed to demonstrate he was prejudiced by the
absence of an advisement of the lifetime registration requirement. “[T]he failure of the court to advise an
accused of the consequences of an admission constitutes error which requires
that the admission be set aside only if the error is prejudicial to the
accused.” (In re Ronald E., supra, 19 Cal.3d at p. 321.) Where, as here, juvenile delinquency
proceedings are concerned, a showing of prejudice requires that the minor
affirmatively demonstrate it is “reasonably probable that such admonishment
would have persuaded [him] to deny the truth of the allegations.” (Id.
at pp. 325-326; see People v.
Walker, supra, 53 Cal.3d at p. 1023.)
The record
before us contains no evidence of prejudice.
F.B. was represented by counsel, who is presumed to have advised him
about the possible consequences of his admissions (see Strickland v. Washington (1984) 466 U.S. 668, 689;
p. 322), and who in fact expressly represented that he had done so. Unlike the defendant in People v. Zaidi, supra, 147 Cal.App.4th at pp. at pages
1479-1480, 1488-1489, F.B. neither objected to imposition of the registration
requirement at the disposition hearing nor sought to withdraw his
admissions. Although appellate counsel
asserts F.B. would not have admitted the allegations of the petition had he
been given a proper advisement, counsel points, as support, to F.B.’s motion to
withdraw his plea. No such motion was made. Moreover, appellate counsel’s assertion “is
not a proper component of the record on appeal.” (People
v. McClellan, supra, 6 Cal.4th at p. 378.) While new trial counsel mentioned that F.B.
“should be withdrawing his admission,” no perceived basis for such an action
was given. Sheer speculation on our part
does not constitute an affirmative demonstration of prejudice on F.B.’s
part. Finally, F.B. received a favorable
plea agreement. Had he declined to admit
the five offenses, he would have faced a jurisdictional hearing on 17 sex
offenses, which could have resulted in a substantially greater sentence. This in turn could have resulted in an
increased period of actual custody,
name="_ftnref8" title="">[7] and could have adversely affected such things
as F.B.’s housing, security level, and programming at DJJ; the terms of any
parole; and the possibility of early discharge and of being relieved of the
registration requirement in the future.
F.B. has
failed to demonstrate that any additional advisement at the time of his
admissions would have caused him to reject the
DISPOSITION
The
judgment is affirmed.
Detjen, J.
Code unless otherwise stated.
