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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C068729

                   Plaintiff and Respondent,                                  (Super. Ct. Nos. 10JQ00457 &
                                                                                       11JQ00485)
         v.

I.V. et al.,

                   Defendants and Appellants.




         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 motions to withdraw their admissions
based on learning disabilities and ineffective assistance, the juvenile court denied their




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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, § 264.11 -- 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




1 Undesignated statutory references are to the Penal Code.


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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 right to a jury trial in this
case due 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] (McKeiver) that the due process clause of
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 McKeiver, but nonetheless argue they are 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.2 The minors




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,

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assert the judgments against them 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,3
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 juvenile proceeding. (McKeiver, 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


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.” 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).)
3 The Attorney General argues the minors forfeited their constitutional claims because
they did not object in the juvenile court to sex offender registration or residency
restrictions. In People v. Marchand (2002) 98 Cal.App.4th 1056, this court held that a
defendant forfeits a due process challenge to sex offender registration by failing to assert
it in the trial court. (Id. at p. 1061.) But there is no forfeiture where the minor presents a
facial constitutional challenge, i.e., a claim that presents a pure question of law that can
be resolved without reference to the particular sentencing record developed in the trial
court. (In re Sheena K. (2007) 40 Cal.4th 875, 887-889 [also recognizing appellate
court’s discretion to consider forfeited claims]; In re Spencer S. (2009) 176 Cal.App.4th
1315, 1323 [exercising discretion to consider minor’s equal protection claim even though
the claim was not raised below].) The minors’ jury trial claim is a facial constitutional
challenge that we may review even if raised for the first time on appeal.

                                                4
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. New Jersey (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. (Nguyen, supra, 46 Cal.4th at pp. 1010-1011, 1019-1025.) In Apprendi, the United
States Supreme 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. (Nguyen, supra, 46 Cal.4th at pp. 1019, 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.” (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.” (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

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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 Apprendi,
requiring jury findings]; In re J.L. (review granted March 2, 2011, S189721) [same]).
Until the California Supreme Court decides the issue, we will continue to be guided by
Nguyen.
                                             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

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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.

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       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); Zaidi, supra, 147 Cal.App.4th at p. 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

                                              8
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




                                              9
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.




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