Filed 9/25/13 In re C.F. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re C.F., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
                                                                         E056937
         Plaintiff and Respondent,
                                                                         (Super.Ct.No. J244512)
v.
                                                                         OPINION
C.F.,

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Barbara A.

Buchholz, Judge. Reversed with directions.

         David R. Greifinger, under appointment by the Court of Appeal, for Defendant

and Appellant.




                                                             1
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Annie

Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.

        Defendant and appellant, C.F. (Minor), touched his two-year-old stepsister’s

vagina with his hand and his erect penis. He admitted to committing a lewd and

lascivious act. He was ordered into out-of-home placement and placed on formal

probation on various terms and conditions. Minor now claims on appeal as follows:

        1. The trial court prejudicially erred in failing to advise him of his constitutional

rights in taking his admission, and therefore his plea was not knowingly and intelligently

made.

        2. The juvenile court abused its discretion in ordering that Minor be put into out-

of-home placement.

        3. The juvenile court failed to make the appropriate findings pursuant to Welfare

and Institutions Code section 726, subdivisions (a) and (d).

        4. The probation conditions that he not possess any dangerous or deadly weapons,

not associate with persons under the age of 14 years, and not possess obscene material

were unconstitutionally broad and vague.

        We reverse the judgment.




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                                              I

                   FACTUAL1 AND PROCEDURAL BACKGROUND

       On June 1, 2012, Minor was visiting his father and stepmother at their home. His

stepmother entered the bedroom of her two-year-old daughter and found Minor straddling

her. Minor admitted to her that he touched the baby’s vagina with his hand and his erect

penis. Her vagina was a little red and wet.

       On June 5, 2012, a Welfare and Institutions Code section 602 petition was filed

against 13-year-old Minor for a felony violation of Penal Code section 288, subdivision

(a). On June 20, 2012, Minor admitted the charge. Minor’s mother and stepfather were

ordered to find a suitable relative for placement of Minor but were unsuccessful. After a

hearing regarding proper placement, Minor was ordered into out-of-home placement and

placed on probation under various terms and conditions.

                                              II

           FAILURE TO ADVISE MINOR OF HIS CONSTITUTIONAL RIGHTS

       Minor contends the trial court did not properly advise him of his constitutional

rights to a court trial, to confront witnesses, and his right against self-incrimination when

taking his admission to the violation of Penal Code section 288. He insists that based on

the totality of the circumstances, the record does not support that he knowingly and

intelligently waived his rights.




       1   The facts are derived from the probation report.

                                              3
       A. Additional Factual Background

       On June 20, 2012, Minor appeared for a pretrial. Each of the parties announced

their appearances. The trial court asked Minor’s counsel if there was a resolution of the

matter. Minor’s counsel stated that Minor would admit the charge.

       The following exchanged occurred:

       “[THE COURT:] [Minor], turning to you I need to ask if you had enough time

today to speak with your attorney and ask her any questions that you might have?

       “THE MINOR: Yes, sir.

       “THE COURT: All right. [¶] Also, has anyone threatened you or forced you to

make an admission?

       “THE MINOR: No, sir.

       “THE COURT: All right. [¶] Has anyone made you any promises so you would

make an admission today?

       “THE MINOR: No, sir.

       “THE COURT: All right. Thank you. [¶] And [Minor], because of your age I

need to ask you, do you understand the difference between right and wrong?

       “THE MINOR: Yes, sir.

       “THE COURT: All right. [¶] Is it wrong to touch someone inappropriately

without their permission?

       “THE MINOR: Wait, can you say that question one more time?




                                            4
       “THE COURT: Sure. [¶] Is it wrong for you to sexually touch someone

inappropriately without their permission?

       “THE MINOR: Yes, sir.

       “THE COURT: Can you give me another example of something that is wrong or

illegal to do?

       “THE MINOR: Fighting?

       “THE COURT: Fighting is a good example, yes. [¶] Can you also give me an

example of something good or right to do?

       “THE MINOR: Just following the law.

       “THE COURT: Okay. That’s good enough. [¶] [Minor], I do see that you

understand the difference between right and wrong so I will accept an admission from

you with respect to the pending charge. [¶] If you would be good enough to answer my

next question with a yes or no response if you would. [¶] Do you admit on or about June

1st, 2012, in the above named judicial district that you did commit the crime of lewd act

upon a child in violation of Penal Code Section 288 as a felony?

       “THE MINOR: Yes, sir.

       “THE COURT: All right.

       “[DEFENSE COUNSEL]: Join.

       “[PROSECUTOR]: Accept.

       “THE COURT: Court finds that Counsel has consented and joined in the

admission on behalf of the [M]inor. [¶] The district attorney is satisfied with the


                                             5
admission and notice has been given as required by law. [¶] The information on the

petition is correct as to [Minor]’s date of birth and county of residence. [¶] The [M]inor

knowingly and intelligently waived his right to a hearing on the issues presented as well

as his Constitutional Rights. [¶] The [M]inor understands the nature of the conduct

alleged in the petition as well as consequences of the admission. The admission has been

made freely and voluntarily. There’s a factual basis for the admission. The allegations of

the petition will be deemed true as charged in Count I.”

       B. Analysis

       A criminal defendant’s plea of guilty amounts to a waiver of three constitutional

rights: (1) the privilege against self-incrimination; (2) the right to a trial by jury; and (3)

the right to confront one’s accusers. Accordingly, the trial court must advise a defendant

of these rights and obtain his or her waiver of each right before taking such a plea.

(Boykin v. Alabama (1969) 395 U.S. 238, 243; In re Tahl (1969) 1 Cal.3d 122, 132

(collectively, Boykin-Tahl).) “Proper advisement and waivers of these rights in the

record establish a defendant’s voluntary and intelligent admission” of the charge.

(People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby).)

       “The Boykin-Tahl protections afforded an accused, other than the right of trial by

jury, are available to juveniles charged pursuant to the Juvenile Court Law, as

proceedings thereunder may result in a substantial deprivation of liberty analogous to

incarceration for crime. [Citation.] The absence of a knowledgeable waiver of

constitutional rights before entering a guilty plea or, in the case of juvenile court


                                               6
proceedings, the admission of jurisdictional facts constitutes grounds for relief . . . .” (In

re Ronald E. (1977) 19 Cal.3d 315, 321, abrogated on other grounds in People v. Howard

(1992) 1 Cal.4th 1132, 1174-1178.)

       Here, the colloquy between the juvenile court and Minor establishes that he was

not advised of his constitutional rights. Although the juvenile court asked if Minor had

been coerced into entering his admission, and also determined whether he knew right

from wrong, at no time did the juvenile court ask for a waiver of his Boykin-Tahl rights.

Moreover, there was no written plea agreement signed by Minor containing the

appropriate advisements.

       “[I]f the transcript does not reveal complete advisements and waivers, the

reviewing court must examine the record of ‘the entire proceeding’ to assess whether the

defendant’s admission . . . was intelligent and voluntary in light of the totality of

circumstances. [Citation.]” (Mosby, supra, 33 Cal.4th at p. 361.) Any error in accepting

an admission will be deemed harmless if the record affirmatively shows that it was

voluntary and intelligent under the totality of the circumstances. (People v. Howard,

supra, 1 Cal.4th at pp. 1175-1178.)

       In Mosby, supra, 33 Cal.4th 353, the defendant was given incomplete Boykin-Tahl

advisements in that he was not advised of his right to remain silent and to confront

witnesses against him. (Mosby, supra, at pp. 357-358, 360.) On appeal, the defendant

contended that the trial court’s incomplete advisement of rights rendered his admission of

a prior conviction invalid. However, the California Supreme Court pointed out that the


                                               7
defendant had just sat through an entire jury trial. Applying the totality of circumstances

test, the Mosby court concluded that the “defendant voluntarily and intelligently admitted

his prior conviction despite being advised of and having waived only his right to jury

trial.” (Id. at pp. 364-365, fn. omitted.) “‘[H]e knew he did not have to admit [the prior

conviction] but could have had a jury or court trial, had just participated in a jury trial

where he had confronted witnesses and remained silent, and had experience in pleading

guilty in the past, namely, the very conviction he was now admitting.’” (Id. at p. 365.)

Although Mosby was in the context of a defendant’s admission of a prior conviction, our

Supreme Court has assumed that the same totality of the circumstances test applies “on

direct appeal from a guilty plea to a substantive offense . . . .” (People v. Allen (1999) 21

Cal.4th 424, 439, fn. 4.)

       The situation here is not comparable to the one presented in Mosby. Minor had no

previous convictions and no experience in court. He was a 13-year-old boy facing his

first criminal conviction. Although Minor had apparently discussed the matter with his

counsel, there is nothing in the record to support that his counsel advised him of his

constitutional rights. Moreover, the fact that the trial court stated on the record that

Minor had waived his constitutional rights appears to be merely a recitation of a familiar

statement made by the juvenile court in taking admissions, and is not based on an actual,

on-the-record waiver by Minor.




                                               8
       The People argue that under the totality of the circumstances the record

demonstrates a voluntary and intelligent decision to admit the allegation. They refer to

the clerk’s transcript, which states: “Court informs the [M]inor of constitutional rights to

confrontation and against self incrimination, the nature of the offense and possible

consequences of admission right to compel the attendance of witnesses.” The People

contend that based on the minute order, there appears to be proceedings that were not

transcribed during which the juvenile court properly advised Minor.

       Where a discrepancy exists between the reporter’s transcript and an entry in a

minute order, the record will be harmonized wherever possible, but “[i]f it cannot be

harmonized, whether one portion of the record should prevail as against contrary

statements in another portion of the record will depend on the circumstances of each

particular case. [Citation.]” (People v. Harrison (2005) 35 Cal.4th 208, 226.) The

reporter’s transcript for June 5, the day that Minor’s admission was taken, contains a

complete recitation of the proceedings on that date. The parties stated their appearances

and the admission was immediately taken. There is no indication that any part of the

proceeding was not reported. On this record, we must conclude that the necessary

advisements were not given to Minor outside the record of the proceedings.




                                             9
       The People’s reliance on People v. Sullivan (2007) 151 Cal.App.4th 524 is

misplaced. In Sullivan, the reporter’s transcript of the hearing on the defendant’s

Faretta2 motion was not available and the defendant claimed that he was not given

proper advisements. (People v. Sullivan, supra, at pp. 544, 548.) The appellate court

presumed the trial court gave the proper advisements in the face of no evidence to the

contrary, and denied the defendant’s claim. (Id. at p. 550.)

       In this case, we have the reporter’s transcript of the hearing on Minor’s admission.

Nothing in the transcript of the proceedings on June 5 suggests that any further

advisements, either written or oral, were provided to Minor. The trial court’s reference to

Minor waiving his right to a hearing as well as his constitutional rights does not indicate

that an off-the-record discussion occurred.

       The totality of the circumstances does not permit the inference that Minor

voluntarily and intelligently waived his constitutional rights. Therefore, the failure to

advise Minor and obtain his waivers concerning his constitutional rights was not

harmless. Minor’s conviction for violating Penal Code section 288, subdivision (a) must

be reversed. Since we reverse this matter on the grounds that Minor did not knowingly

and voluntarily waive his rights, we need not address Minor’s other claims raised on

appeal as they are moot.




       2   Faretta v. California (1975) 422 U.S. 806.

                                              10
                                             III

                                      DISPOSITION

       The judgment is reversed and Minor’s sentence is vacated. The matter is

remanded to the juvenile court for further proceedings for Minor to enter a new

admission to the charge, or proceed to trial if he so chooses.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                         RICHLI
                                                                                  J.

We concur:


McKINSTER
                     Acting P. J.


MILLER
                                J.




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