In
re I.V.
Filed
5/2/13 In re I.V. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THIRD
APPELLATE DISTRICT
(Glenn)
----
In
re I.V. et al., Persons Coming Under the Juvenile Court Law.
THE
PEOPLE,
Plaintiff and
Respondent,
v.
I.V.
et al.,
Defendants and
Appellants.
C068729
(Super. Ct. Nos. 10JQ00457 & 11JQ00485)
The
minors admitted guilt on one count of rape
or sexual penetration by force against the will of the victim while acting
in concert with another person.
Following an evidentiary hearing on the minors’ subsequent
based on learning disabilities and ineffective assistance, the juvenile court
denied their motions to withdraw the admissions and committed the minors to the
Division of Juvenile Justice (DJJ) for the maximum period of nine years.
The
minors now contend (1) although delinquency
adjudications are traditionally made without a jury trial, the minors have
a federal due process right to a jury
trial in this case due to the lifetime residency restrictions; and (2) the
juvenile court failed to advise the minors that they would be subject to sex
offender registration and residency restrictions for life.
We
conclude the minors do not have a right to a jury trial, and they fail to show
prejudice resulting from improper advisement.
We will affirm the judgment.
BACKGROUND
Amended
petitions filed under Welfare and Institutions Code section 602, subdivision
(a), alleged that the minor I.V., age 17, and his twin brother (whose initials
are also I.V.), committed eight sexual offenses against E.A., who was 16 years
old. The minors admitted one count of
rape or sexual penetration by force against the will of the victim while acting
in concert with another person (Pen. Code, § 264.1
-- count VIII) in exchange for dismissal of seven counts charging other sexual
offenses.
The
minors subsequently retained private counsel and filed motions to withdraw
their admissions. The motions claimed
that due to the minors’ learning disabilities, and also due to ineffective
assistance by their former attorneys, the minors did not waive their
constitutional rights in a knowing and intelligent manner and did not
understand what they admitted or the consequences of their admissions. The minors also claimed that their former
counsel failed to conduct an adequate investigation of their case.
At
the hearing on their motions, the minors called witnesses, including their
former attorneys, presented documentary evidence, and testified
themselves. The former attorneys
testified that they informed the minors they would be required to register as
sex offenders. The minors testified to
the contrary. There was no testimony about
statements to the minors concerning the duration of the registration requirements
or the residency restrictions applicable to registered sex offenders. The juvenile court denied the minors’
motions.
The
juvenile court sustained the amended petitions for violations of section 264.1
and committed the minors to the DJJ for nine years, the maximum time each minor
could be confined in secured custody for a violation of section 264.1. The period of commitment was actually longer
for one of the minors due to a term imposed in a prior juvenile proceeding.
DISCUSSION
I
The
minors contend that although delinquency adjudications are traditionally made
without a jury trial, the minors have a federal due process
to the lifetime residency restrictions.
We disagree.
The
United States Supreme Court held in McKeiver
v. Pennsylvania (1971) 403 U.S. 528, 530, 545 [29 L.Ed.2d 647, 652, 661] (
the federal Constitution does not guarantee juveniles a right to a jury trial in
the adjudicative stage of a state juvenile court delinquency proceeding. The minors acknowledge the holding in
entitled to a jury trial because the consequences of these adjudications,
particularly the lifetime residency restrictions in section 3003.5, subdivision
(b), are so punitive that they render these juvenile proceedings
indistinguishable from adult criminal prosecutions.
must be reversed because they did not waive their jury trial rights.
The
minors did not claim below that they have a constitutional
right to a jury trial. Instead, they
elected to admit violations of section 264.1 and to enter pleas rather than proceed
with a contested court hearing. But
assuming the minors preserved their claims,
their assertion of a constitutional right to a jury trial in this context is
contrary to controlling precedent.
Over
four decades ago, the plurality opinion in McKeiver
concluded that trial by jury is not a constitutional requirement in a
supra, 403 U.S. at pp. 530, 545 [29 L.Ed.2d at pp. 652, 661].) In People
v. Nguyen (2009) 46 Cal.4th 1007, 1022 (Nguyen),
the California Supreme Court likewise recognized that juveniles do not have a
constitutional right to a jury trial.
Although Nguyen involved
whether the federal Constitution allows the use of a prior juvenile
adjudication as a strike under California’s
three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), the right
to a jury trial in juvenile proceedings was central to the decision because the
defendant claimed that Apprendi v.
(2000) 530 U.S.
466 [147 L.Ed.2d 435] (Apprendi)
barred the use of his juvenile adjudication to enhance his punishment for the
current offense where the prior juvenile proceeding did not afford him the
right to a jury trial. (
1010-1011, 1019-1025.) In
Court held that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.†(Apprendi,
supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) The Supreme Court in Nguyen held that Apprendi does
not preclude the use of a prior juvenile adjudication to enhance the sentence
against an adult offender simply because the juvenile proceeding did not confer
a right to a jury trial. (
1025, 1028.) Agreeing with the majority
of the courts holding that nonjury juvenile adjudications may be used to
enhance subsequent adult sentences (id.
at pp. 1020-1022), the California Supreme Court recognized that “the
introduction of juries in [juvenile proceedings] would interfere too greatly
with the effort to deal with youthful offenders by procedures less formal and
adversarial, and more protective and rehabilitative -- at least to a degree --
than those applicable to adult defendants.â€
(Id. at p. 1023.) The Supreme Court concluded that “the absence
of jury trials from juvenile proceedings does not significantly undermine the
fairness or accuracy of juvenile factfinding.â€
(Id. at p. 1025.)
The
minors nonetheless contend the lifetime residency restrictions in section
3003.5, subdivision (b) constitute punishment, and the facts required to impose
such punishment must be found true by a jury beyond a reasonable doubt. However, the California Supreme Court
previously held that the residency restrictions in section 3003.5 are not
punishment. (In re E.J. (2010) 47 Cal.4th 1258, 1278, 1280.) Although decided in a different context, the
Supreme Court said the residency restrictions are “clearly intended to operate
and protect the public in the present, not to serve as additional punishment
for past crimes.†(Id. at p. 1278, italics omitted.)
The
issue presented in this case is currently before the California Supreme
Court. (In re S.W. (review granted January 26, 2011, S187897) [whether a
juvenile court could constitutionally impose sex offender requirements without
a jury trial]; People v. Mosley
(review granted January 26, 2011, S187965) [does discretionary imposition of lifetime
registration and residency restrictions increase penalty within the meaning of
2011, S189721) [same]). Until the
California Supreme Court decides the issue, we will continue to be guided by
II
The
minors next claim they should be allowed to withdraw their admissions because
they were not advised that they would be subject to sex offender registration
and residency restrictions for life.
A
Regarding
sex offender registration, the minors contend the juvenile court failed to
advise them about the lifetime duration of the sex offender registration
requirement. The minors also assert the
plea forms misadvised them that the registration obligation would expire on
their 25th birthdays. In the presence of
the minors and their attorneys, the juvenile court read aloud the petitions
against the minors, including giving the minors notice that if the juvenile
court adjudicated them wards of the court for the charged offenses and
committed them to the DJJ they would be required to register as sex offenders
pursuant to section 290. Before the
juvenile court took the minors’ admissions, the juvenile court asked the minors
whether they understood that if they are sent to the DJJ they would be required
to register as sex offenders pursuant to section 290 upon their release. The minors responded that they understood the
juvenile court’s advisement. The record
does not reflect a verbal reference to the duration of the registration requirement
at that hearing, but the advisement and waiver of rights forms signed by the
minors stated that if the minors admitted a violation of section 264.1, they
would be required to register as sex offenders until their 25th birthdays.
The
minors rely on People v. Zaidi (2007)
147 Cal.App.4th 1470 (Zaidi). In that case, the First District Court of
Appeal held that before taking a plea, a court must advise a criminal defendant
that he or she will be required to register as a sex offender for life. (Zaidi,
supra, at pp. 1481-1486.) The minors
argue that the erroneous advisement regarding the length of sex offender
registration meant that their admissions were not voluntary and
intelligent. They add that their claim
is not forfeited by failure to object in the juvenile court because they could
not reasonably have brought the error to the juvenile court’s attention. The minors assert they would not have entered
the admissions had they been properly advised.
The
Attorney General counters that the minors forfeited their claims by not
objecting in the juvenile court.
Disagreeing with the holding of Zaidi,
the Attorney General urges that the juvenile court had no duty to advise the
minors about sex offender registration at the time of taking the minors’ pleas
because sex offender registration is a collateral, rather than direct,
consequence of a plea admission. The
Attorney General further argues that the minors should not be permitted to
withdraw their pleas because there is no evidence that they relied on any
advisement about the length of the registration requirement in entering their
pleas. According to the Attorney
General, the minors did not suffer any prejudice because if they had withdrawn
their pleas and were subsequently adjudicated of committing more than one
serious felony, they would still be required to register as sex offenders and
could not have been committed to the DJJ for less than nine years.
We
conclude that even if the minors’ claims are properly before us, and even if
the minors were incorrectly advised, the record does not contain evidence of
prejudice.
As
the minors acknowledge, they are entitled to withdraw their pleas only if they
establish that they were prejudiced by the failure to advise or the
misadvisement. (People v. McClellan (1993) 6 Cal.4th 367, 378 (McClellan); In re Moser
(1993) 6 Cal.4th 342, 352 (Moser);
1487.) In other words, to obtain relief,
each minor must show that he would not have admitted guilt had the juvenile
court given the allegedly required advisement.
(McClellan, supra, 6 Cal.4th
at p. 378; Moser, supra, 6 Cal.4th at
p. 352; Zaidi, supra, 147 Cal.App.4th
at p. 1487.)
Both
minors testified at the hearing on their motions to withdraw their
admissions. They also presented other
evidence. There is no evidence or
indication in the record that the minors would not have entered the admissions
to the section 264.1 violation if the juvenile court had advised them that they
would be required to register as sex offenders for life. Unlike in Zaidi,
there is no declaration or testimony in this case that the minors would not
have admitted the violations of section 264.1 if they had known they would be
required to register as sex offenders for life.
(Zaidi, supra, 147 Cal.App.4th
at p. 1488.) The assertion in the
minors’ appellate briefs concerning prejudice, with no support in the record,
does not satisfy the minors’ burden on appeal.
(McClellan, supra, 6 Cal.4th
at p. 378.)
The
motions to withdraw admissions do not complain that the juvenile court failed
to advise the minors about the lifetime registration requirement or that the
minors were misadvised about the duration of this requirement. The lack of any such evidence suggests that
the lifetime duration of the requirement to register as a sex offender had no
bearing on the minors’ decisions to admit the section 264.1 violation. (McClellan,
supra, 6 Cal.4th at p. 378.)
Moreover, the record shows that the minors were facing adjudication on
eight counts of alleged sexual offenses.
The juvenile court informed them that if it adjudicated them wards of
the court for the charged offenses and committed them to the DJJ they would be
required to register as sex offenders pursuant to section 290. The minors’ former attorneys testified that
they informed the minors they would be required to register as sex
offenders. And before the juvenile court
took the minors’ admissions, it asked the minors whether they understood that
if they were sent to the DJJ they would be required to register as sex
offenders pursuant to section 290 upon their release. The minors responded that they
understood. If adjudicated on the eight
counts, they faced lifetime sex offender registration and commitment for at
least nine years. Under those circumstances,
the minors agreed to admit one count in exchange for dismissal of seven
counts. On this record, the minors fail
to meet their burden of establishing prejudice from any error in the advisement
about the sex offender registration.
B
Turning
to the residency restrictions, the minors claim the juvenile court’s failure to
advise them of the restrictions renders their admissions invalid.
The
Attorney General responds that the minors’ claim is not ripe because there is
no evidence the residency restrictions will ever be applied to the minors. According to the Attorney General, the
juvenile court had no duty to advise the minors about the residency
restrictions because such restrictions are a collateral consequence of the
plea. The Attorney General also points
out the lack of evidence that the minors relied on the future potential
application of the residency restrictions in entering their pleas.
Once
again, even if the minors’ appellate claim is properly before us, and even if
there was a failure to advise, the lack of advisement does not compel reversal
because nothing in the record shows prejudice.
(McClellan, supra, 6 Cal.4th
at p. 378; Moser, supra, 6 Cal.4th at
p. 352; Zaidi, supra, 147 Cal.App.4th
at p. 1487.) Although the minors argue
they would not have admitted the section 264.1 violations had they been
>
advised about the residency restrictions,
there is no evidence in the record supporting that assertion.
DISPOSITION
The
judgment is affirmed.
MAURO , J.
We
concur:
HULL ,
Acting P. J.
HOCH ,
J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
name="_ftn2" title="">[2] While the minors broadly state that changes
in California’s juvenile delinquency law in the past four decades created
proceedings that closely match adult criminal proceedings, they only provide
argument with citation to authority regarding the punitive nature of the
residency restriction in section 3003.5.
Section 3003.5,
subdivision (b) provides that “[n]otwithstanding any other provision of law, it
is unlawful for any person for whom registration is required pursuant to
Section 290 to reside within 2000 feet of any public or private school, or park
where children regularly gather.â€
Because they admitted committing an offense enumerated in section
290.008, subdivision (c), the minors will be required to register as sex
offenders when they are discharged from the DJJ. (§ 290.008, subd. (a).)
