Filed 8/8/14 In re Juan O. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re JUAN O., a Person Coming Under the
Juvenile Court Law.
                                                                 D064957
THE PEOPLE,

         Plaintiff and Respondent,                               (Super. Ct. No. J228067)

         v.

JUAN O.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Browder A. Willis III, and Carlos O. Armour, Judges. Affirmed as modified.

         Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

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

Ryan H. Peeck, Deputy Attorneys General for Plaintiff and Respondent.
                                    INTRODUCTION

       Juan O. admitted willfully and unlawfully resisting, delaying and obstructing a

public officer during the discharge of the officer's duty. (Pen. Code, § 148, subd. (a)(1).)

The juvenile court made Juan a ward of the court and placed him on formal probation in

the Short Term Offender Program for up to 90 days. The conditions of Juan's probation

included a provision stating, "The minor is not to use force, threats, or violence on

another person."

       Juan appeals, contending we must reverse the judgment because the court failed to

inform him of his constitutional rights before accepting his admission. He further

contends we must modify the use of force probation condition because it

unconstitutionally precludes him from using force in lawful self-defense.

       The People concede the latter point and we order the court to modify the probation

condition to state, "The minor is not to use force, threats, or violence on another person

except in lawful self-defense." In all other respects, we affirm the judgment.

                                    BACKGROUND1

       A police officer responded to a call reporting juveniles smoking marijuana. When

the officer arrived, the officer saw Juan and another juvenile sitting on a wall and

detained them both. Juan's mother took custody of him. She told the officer, Juan was

out of control, he did not listen to her, and she was afraid of him. She agreed to enroll

him in the police department's diversion program.


1      The background facts are taken from the probation officer's social study.

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       Before the officer left the scene, Juan's mother flagged the officer down because

Juan had locked her out of their apartment. The officer instructed Juan to open the front

door, but he refused. He eventually opened the door, then ran to the bathroom and locked

that door. His mother pried open the door with a knife. Once the door was open, the

officer instructed Juan to get out of the shower. He refused, stating he did not have to

obey the officer. When the officer attempted to take Juan by the arm, Juan pulled away.

The officer then grabbed Juan's wrists, placed him in custody, and booked him into a

juvenile detention facility.

                                        DISCUSSION

                                               I

                               Waiver of Constitutional Rights

                                               A

       At his first court appearance, Juan's counsel informed the court she had advised

Juan of his constitutional and statutory rights. The court subsequently noted, without any

objection, "Juan's been advised of the charges against him, his constitutional rights and

the nature of the juvenile proceedings. He waives further reading of the petition and his

constitutional rights, enters a denial for the record."

       At the readiness hearing, Juan's counsel asked the court to set the matter for an

adjudication hearing. Before the readiness hearing concluded, Juan interjected, "Your

honor, if I could make a last moment request for." The court interrupted him and

suggested, "Why don't you ask your attorney first." He responded, "Because like

changing my mind about pleading guilty." The court replied, "Juan, hang on a second.
                                               3
It's important that you only talk to your attorney about what you're going to say first and

make sure that she lets you talk to me. Okay?" He acknowledged, "I understand."

       At the adjudication hearing, Juan's counsel informed the court Juan wanted to

admit one of the allegations against him. The court and Juan engaged in the following

colloquy:

            "[THE COURT:] So Juan, is that correct, that you are ready, willing
            and able to admit . . . the violation of Penal Code section 148.

            "THE MINOR: Yes, your honor. [¶] . . . [¶]

            "THE COURT: Have you had any drugs, alcohol or medication in
            the last 24 hours that would make it hard for you to pay attention?

            "THE MINOR: No, your honor.

            "THE COURT: Did you have an opportunity to speak to your
            attorney?

            "THE MINOR: Yes, your honor.

            "THE COURT: When you had your conversation with your
            [attorney], were you able to understand everything that she was
            explaining to you?

            "THE MINOR: Yes, your honor.

            "THE COURT: Do you understand that you have a right to go to
            trial on this petition?

            "THE MINOR: Yes, your honor.

            "THE COURT: Your attorney has indicated to me that you're
            willing to give up your right to go to trial in order to admit to
            [violating Penal Code section 148]; is that correct?

            "[MINOR]: Yes, your honor."



                                               4
       After discussing the potential immigration consequences of and dispositions for

his admission, the court inquired:

          "THE COURT: Keeping that in mind and keeping in mind
          everything that your attorney has explained to you, are you still
          willing to make your admission to [violating of Penal Code section
          148]?

          "THE MINOR: Yes, your honor."

       The court then accepted Juan's admission, finding he gave it freely and voluntarily.

                                              B

       Before the court accepted Juan's admission, the court was required to advise him

of what are commonly referred to as Boykin-Tahl2 rights: the privilege against

compulsory self-incrimination, the right to a trial, and the right to confront accusers.

(People v. Mosby (2004) 33 Cal.4th 353, 359 (Mosby).) The court's advisements were

incomplete because the court only advised Juan of his right to a trial. Juan contends the

court's error requires reversal of the court's judgment. We disagree.

       The court's failure to expressly advise Juan and obtain his waiver of all three

Boykin-Tahl rights before accepting his admission does not require reversal of the court's

judgment as long as the record affirmatively shows the admission was knowing,

intelligent, and voluntary under the totality of the circumstances. (Mosby, supra, at

pp. 360-361.) One circumstance weighing in favor of upholding the court's judgment is

Juan's counsel statement on the record at Juan's first appearance that she had advised him


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

                                              5
of his constitutional rights. Contrary to Juan's assertion, People v. Christian (2005) 125

Cal.App.4th 688 (Christian) does not preclude our consideration of this statement.

Christian stands for the proposition an appellate court may not presume from the mere

fact a defendant had a lengthy pre-plea conversation with his counsel that the

conversation included a discussion of the defendant's Boykin-Tahl rights. (Christian,

supra, at p. 698.) It has no application where, as here, counsel specifically indicated on

the record she had discussed Juan's constitutional rights with him.

       Another circumstance weighing in favor of upholding the court's judgment is

Juan's prior experience with the juvenile justice system. (Mosby, supra, 33 Cal.4th at

p. 365.) According to the probation officer's social study, Juan had a prior juvenile

adjudication stemming from two separate incidents. In December 2010 he was charged

with one count of grand theft (Pen. Code, § 487, subd. (a)) and one count of burglary

(Pen. Code, § 459) after he and a companion stole a 32-inch flat screen television from a

parked delivery truck. In February 2011 he was charged with one count of theft (Pen.

Code, § 484) and one count of breaking or removing vehicle parts (Veh. Code, § 10852)

after he and a companion entered a parked vehicle and attempted to remove the stereo.

The court disposed of the charges in March 2011 by making true findings on the grand

theft and theft charges and dismissing the remaining charges with a waiver under People

v. Harvey (1979) 25 Cal.3d 754 (Harvey waiver).3 The existence of the Harvey waiver



3      The Harvey waiver allowed the court to consider Juan's entire criminal history,
including any unfiled or dismissed charges, for disposition purposes. (People v. Snow
(2012) 205 Cal.App.4th 932, 936-937.)
                                             6
indicates Juan admitted the two charges for which the court made true findings. We may

infer he received Boykin-Tahl advisements before these admissions and, consequently,

has been aware of his Boykin-Tahl rights since then. (See Mosby, supra, 33 Cal.4th at

p. 365.)

       We further note at the time of the adjudication in this case, Juan was almost 18

years old, had completed high school, and was not receiving any special education or

mental health services. In addition, his voluntary remarks at the readiness hearing about

possibly changing his plea show both a sophisticated understanding of the juvenile justice

system and the capacity to assert rights when necessary. Other remarks he made on the

record and to the probation department, while not directly related to his Boykin-Tahl

rights, show similar sophistication and capacity. We, therefore, conclude under the

totality of the circumstances he voluntarily and intelligently admitted the violation of

Penal Code section 148 despite being advised of and having waived only his right to a

trial. (Mosby, supra, 33 Cal.4th at p. 365.)

                                               II

                  Constitutionality of Use of Force Probation Condition

       Juan contends, the People concede and we agree the use of force probation

condition is unconstitutionally overbroad because it precludes Juan from engaging in

lawful self-defense, which is protected by article 1, section 1 of the California

Constitution. (In re Sheena K. (2007) 40 Cal.4th 875, 890 [a probation condition limiting

a person's constitutional rights must be closely tailored to the purpose of the limitation to

avoid being unconstitutionally overbroad]; People v. Freitas (2009) 179 Cal.App.4th 747,

                                               7
750 [a probation condition may be overbroad if it prohibits constitutionally protected

conduct].) Accordingly, we shall direct the court to modify the condition to state, "The

minor is not to use force, threats, or violence on another person except in lawful self-

defense."

                                      DISPOSITION

       The court is directed to modify the use of force probation condition it imposed to

state, "The minor is not to use force, threats, or violence on another person except in

lawful self-defense." In all other respects, the judgment is affirmed.




                                                                         MCCONNELL, P. J.

WE CONCUR:


HUFFMAN, J.


AARON, J.




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