*1 Dist., B117079.Second Div. Five. Jan. [No. 1999.] B., In re JERMAINE a Person Under the Juvenile Court Coming Law. PEOPLE, THE Plaintiff and Respondent, B.,
JERMAINE Defendant and Appellant.
Counsel for Defendant Tavano, the Court Appeal, under T. appointment Joseph and Appellant. Williamson, General, Chief Assistant George Lungren, Attorney
Daniel E. General, Pollack, Attorney General, Assistant Wendelin Carol Attorney General, for Lee, Attorneys S. Deputy and Sunnie Susan D. Martynec Plaintiff Respondent.
Opinion Appellant, a minor, after giving as an adult was
GRIGNON, prosecuted J. into a negotiated disposi- entered and date of birth. Appellant a false name *4 in return for to a lesser offense no contest he pleaded tion which pursuant conviction, de- his prosecution sentence. Subsequent a probationary, to the certified and the matter was in fact minor termined was appellant his right had waived court concluded court. The appellant juvenile juvenile as an admission no contest plea treated appellant’s to a juvenile adjudication, the origi- in violation of found of the allegations appellant petition, Youth offense, the California and committed appellant nally charged his to withdraw was entitled (CYA). We conclude appellant Authority in to an juvenile and did not his right adjudication of no contest waive We reverse. Background Procedural
Facts 14, 1997, On July bom on 1981. January Jermaine B. was Appellant for sale of for He was arrested possession old. years was appellant name, Jason a false gave on that date. Appellant police cocaine base birth, to be an Ford, Believing appellant date 1979. July and a false for with adult, possession him by felony complaint charged the prosecution section 11351.5. Code Safety of Health of cocaine base in violation sale old, a certified 30, 1997, entered was still 16 years who On July appellant, in of cocaine for sale court to possession of no contest municipal In offense. a lesser Code section Health and Safety violation be placed would it was agreed appellant the no contest plea, exchange conditions, hundred one including on certain three formal probation years’ eighty days county jail. was advised his maximum state Appellant sentence would be four was not prison years. advised Appellant pursuant Penal Code section that the 1192.5 trial court could withdraw approval which would agreement, give to withdraw his appellant 13, 1997, no contest. On August was sentenced in court appellant superior He was awarded 45 pursuant plea agreement. days presentence credit.
On discovered true August name prosecution appellant’s and date of birth. Criminal in adult court were proceedings suspended, hall, remanded to and the juvenile was matter was certified to the appellant 29, 1997, court. On juvenile August was filed in wardship petition juvenile court had for sale cocaine alleging possessed base violation of appellant Health and Code section 11351.5. on the Safety was Appellant arraigned and denied the petition matter was set for petition. . adjudication 23, 1997, On court for September juvenile appellant appeared adjudi- cation. The was not entitled to a prosecution argued appellant hearing, because he had lied and had entered a of no contest concerning age in adult court. counsel objected out to Appellant’s pointed juvenile court that had no contest in order to take of a appellant pleaded advantage favorable counsel also out that disposition. Appellant’s pointed appellant was not on the but rather the attempting renege plea agreement, prosecu- tion had the certification to court. The instigated *5 concluded had waived his to an court appellant adjudication juvenile a false no contest in the by giving age pleading municipal record, minor counsel stated: And so for the the is “Right. Appellant’s for his to have an If the are asking adjudication today. People going issue, raise this should have raised it at the time of the they arraignment before the I’m I’m was set. So that it’s not adjudication arguing timely. [¶] also to the court’s in favor of the in that I objecting ruling proposed People [(1993) find there is a distinction in Jose D. Court 19 Superior [v.] case, based on the fact that in that Cal.App.4th Cal.Rptr.2d 664]] minor, adult, the who claimed to be an the benefit of a trial. actually got jury case, And in this the minor entered a no contest for the benefit of a plea plea bargain.”
Based on no contest in adult court to a violation of solely appellant’s plea 11351, Health and section Code court found Safety appellant At the disposition Health and Code section 11351.5. Safety violation of 1997, a 9, to the CYA for court committed appellant October for the confinement not exceed five instant maximum years period months, due nine to two offense. The maximum was increased period Code sections subdivision for violations Penal previous adjudications (a) and 415. him a ward of the from the orders declaring delinquent
Appellant appealed Code, the CYA. (Welf. 602) Inst. him to committing court & §
Discussion Plea Negotiated
Withdrawal of his no contest contends he was entitled withdraw plea. Appellant agree. We system.”
“Plea is in our criminal justice an bargaining accepted practice (1988) 44 Cal.3d (People 1249 [246 Cruz 439].) a specifying punishment Upon acceptance plea court, available to the the court not may punishment sentencing impose (Id. 1250.) than that in the “Where bargain. more severe specified p. is court and attorney accepted by prosecuting open cannot be sentenced on the the defendant. . . approved by more than that in the specified severe punishment Code, (Pen. as to the than other as proceed plea.” specified 1192.5.) is entered in benefits exchange “When guilty plea specified § such as the dismissal counts or an maximum agreed punishment, of other state, the agreement. both must abide terms of parties, including by that which the agreed exceed punishment may significantly parties v. Walker (People upon.” 861].) It is that a harsher than that agreed well settled disposition on a defendant. the court or the not be prosecution may imposed *6 495, 498-499, 404 262 S.Ct.
(Santobello v. New York U.S. [92 427].) 30 L.Ed.2d where the agreement, plea
The usual for violation of a plea remedy enforced, with to allow the defendant to cannot be is bargain specifically Walker, v. charges. (People trial on the original draw and togo plea 1026-1027.) makes material A defendant who 54 Cal.3d at supra, pp. 640 is not entitled to
misrepresentations negotiating bargain plea specific of the v. Johnson 10 Cal.3d 873 performance agreement. (People is, however, 604].) The defendant entitled Cal.Rptr. contest, withdraw or no if the trial court discovers the plea guilty (Id. and withdraws its of the at misrepresentations prior approval bargain. 1192.5, 872-873.) Pursuant to Penal Code section a defendant must be pp. informed the trial court or no contest prior negotiated plea guilty that the trial court’s of the is not and be approval bargain binding withdrawn. The defendant must also be that if advised approval withdrawn, the defendant has the to withdraw the bargain right defendant, (Ibid.) or no contest. If a has been admonished guilty who to withdraw the does not concerning right object plea, punishment excess of defendant to withdraw the bargain, right relinquishes Walker, 1024-1025.) If Cal.3d a defendant plea. (People pp. admonished, has not been a failure to to increased properly object punish- ment does not waive the defendant’s to the benefit of the bargain. (Ibid.)
Penal Code section 1192.5 is to negotiated expressly applicable court and there is no in the dispositions comparable provision However, and Welfare Institutions Code. Penal underlying principles Code section are situations similar to bargain 1192.5 applicable even if Penal Code section is not se guilty 1192.5 pleas, per applicable. (People Calloway violation].) of probation
30] [admission case, In this failed to his true name and minority reveal appellant entered adult court. into a of no contest in negotiated plea Appellant waived his to a contested of his conditionally disposition guilt innocence. This waiver was conditioned on an that he agreement expressly adult, more than would be sentenced as an and serve no placed probation, He did not on his days county jail. renege bargain. Appellant was satisfied to forward with the to which he had The go agreed. disposition to set discovered prosecution appellant’s misrepresentations sought however, aside its to bind agreement. sought appellant prosecution, time at the same releasing his side of while agreement, prosecution Indeed, of a from its side. and obtained sought finding prosecution had violation of a more serious offense than that to which appellant pled. In material concerning light appellant’s misrepresentations he is not entitled to identity age, specific performance and he does not so contend. He contends he should be allowed bargain, *7 of the plea has withdrawn approval the court because withdraw plea, from than and different far harsher a and he has received disposition bargain of a on the condition no contest He pleaded in the bargain. that specified was committed time and instead jail days sentence with probationary is Appellant contention persuasive. to 5 years. Appellant’s to the CYA for up is consonant with his unless disposition be bound to plea cannot the terms Here, Because was not. certainly it most bargain. terms of plea the pros- with by were complied agreement and conditions no contest. court, his is entitled to withdraw ecution and appellant his to right waived that appellant no merit to the contention There is First, to at the time disposition. his so by failing request withdraw the time he his to withdraw not advised of his right was appellant his right thus did not relinquish of no contest and entered the negotiated plea Second, time at the of the excess disposition. by failing object to withdraw sufficiently in juvenile counsel objected procedures appellant’s times, At all raise this issue on appeal. to preserve appellant’s to have court that wished informed the juvenile appellant counsel appellant’s times, effec all counsel objected At hearing. appellant’s an adjudicatory an admission in in adult court as no contest plea tuation of his negotiated the issue were sufficient preserve court. These objections juvenile move to withdraw that expressly It was not necessary appellant appeal. His for a contested made in adult court. request certified of no contest . clear was hearing sufficiently juvenile adjudicatory Hearing Right Adjudication Waiver of in hearing to an adjudicatory he was denied his right contends
Appellant to a his right that waived responds appellant court.. juvenile prosecution no contest. to be an adult pleading court by claiming juvenile correct. Appellant unquestionably individual, an adult at to have been claims
It is true that an who minor, in adult (2) is tried by jury but really the time of an offense was entitled to a new adjudica is not jury, is found guilty by received already the individual has court because tory hearing benefit of an additional procedural to a fair trial with the due process (In Harris re in juvenile is not available trial—which option—jury 391].) “[W]hether 5 Cal.4th matter of subject court is not a or adult question is tried person (Jose not a timely objection.” be waived if there is and thus may jurisdiction *8 D. Court Superior Cal.App.4th 664]; Harris, see also In re 5 Cal.4th at supra, 837-838.) An pp. individual who was a minor at the time of the offense waive the benefits of the may trial, law as to juvenile Court, but not as to (Jose D. sentencing. v. Superior 1100.) A Cal.App.4th so p. person convicted in adult court is nevertheless entitled to a juvenile (Ibid.) The has disposition. person not waived his or her to be treated as a right minor by falsely to be claiming offense; an adult at the time of the the person does not have the simply right to be tried twice. “By failing trial in adult object in a timely [to court] fashion trial in person] (Id. court.” juvenile 1101.) [the at p. waive[s] case,
In this did not appellant his to a exchange right adjudicatory for an adult hearing trial. jury his Appellant completely gave up kind of any for certain exchange benefits. This case does not involve a waiver of the site or nature of a contested This hearing. case involves negotiated violation of an plea offense. There is absolutely no for the authority that a proposition minor who enters into a negotiated in adult court be deemed to have admitted the offense in juvenile court and be to increased subject penalties. By his misrepresenting age, waived his appellant enforce the specifically He did plea bargain. waive his right withdraw begin anew if he could not be sentenced in accordance with the terms and conditions of his agreement. Accordingly, certified appellant’s no contest cannot be specifically enforced prosecution juvenile court.1
Disposition The order of is reversed. The matter is remanded wardship to the juvenile court for further consistent proceedings with this opinion. Perez, J.,
Godoy concurred.
TURNER, J.,P. Dissenting.
I. Introduction case, In this for the first time on the minor that he appeal, argues indirectly is entitled to withdraw his made in court to a municipal charge that, events, 1We note appellant in all never entered a ato violation of Health and 11351.5, Safety Code section adjudicated crime for which he was a ward of the Court, has repeatedly California which cocaine possession.1 issues for the rules constitutional concerning raising enforced strict waiver *9 courts, a based on right has never held that a minor has first time in appellate set aside an admission Code 1192.5 to with Penal section noncompliance the minor to permit I Penal Code section 1192.5 would construe plea. in was made when no such to set aside an admission or request move the requisite has failed to make the trial court. the minor Additionally, in he that he could be placed because advised showing of was prejudice (In re Ronald E. of in the as a result his youth authority plea municipal 781, 684]; 315, In re (1977) Cal.Rptr. 325-326 [137 369, 534].) (1979) 372-374 Jimmy M. 93 Cal.App.3d [155 II. Procedural Matters 6, a filed April The minor admitted as true the of petition Code, 9, 1993, (Pen. 415.) On June him in fighting with charging public. § 1993, with a ward of the court and on probation he was declared placed 1996, 16, the allegations the minor admitted numerous conditions. On April 1996, 13, receiving in another him with charging filed petition February Code, 496, (Pen. (a).) The minor was stolen were true. subd. property § a and thirty in a for not to exceed three years placed camp program period days.2 1997, 16, was the minor under against
On filed July felony complaint (Health & alias for base for sale. the of Jason N. Ford cocaine possession Code, minor, had claimed he was an 11351.5.) 18-year-old, Saf. The who § contest to a of cocaine charge possession with counsel and no appeared pled 13, 1997, Code, 11351) at (Health & Saf. in court. On municipal August § directly argued opening 1The in brief that he was entitled to withdraw minor never the Rather, plea. heading argument phrased opening the in the brief as guilty for minor’s follows, right adjudi an in constitutional denying “The court erred Jermaine his argument opening commenced as follows: “Due hearing.” posited cation The brief (In indispensable freedom. re Gault process primary is the foundation of individual law 1, .) compact in the which 20. . . It is the basic and essential term social 387 U.S. may exercise. rights powers and delimits the which the state defines the individual alone, (Id. at (Ibid.) Rights is for adults the Fourteenth Amendment nor of Bill of Neither including right 13.) adjudication hearing petition, right has a to an on the p. The minor witnesses, notice, right to assert right to and cross-examine attorney, to an confront (Id. 29-30)” portion remainder of the against pp. The privilege self-incrimination. hearing the effect of the adjudication analyzed an opening brief which discussed Cal.App.4th 1100-1101 Superior D. Jose Court decisions of Cal.Rptr.2d and In Harris 5 Cal.4th re 664] permit an directly question involves the whether of these decisions Neither 391]. guilty plea. accused to withdraw furloughed camp but did not subsequently from the minor was 2The record reflects that report supervision. and sentence probation superior imposition minor, sentence was suspended. who was to be an erroneously believed adult, was on three formal placed years’ ordered to serve one probation 27, 1997, hundred eighty days county jail. On it discovered August was that the minor had been sentenced as an erroneously adult under the name Jason Ford. Proceedings were He was superior suspended. ordered released from the and housed in the county hall. jail
On filed August was to section wardship petition pursuant Welfare and Institutions Code section 602 the minor with charging posses- Code, (Health sion for sale of cocaine 11351.5.) base. & Saf. There was no § *10 material difference between the in the allegations and those felony complaint in the When the wardship case was called in petition. juvenile court on 23, 1997, the minor’s counsel stated: September “It’s set for adjudication and the minor today here. The are not just got It’s people ready. my that Mr. Kubik called understanding off witnesses because he believes that the minor is not entitled to a trial. The minor is on juvenile probation.” Court, After a discussion the decision of concerning Jose D. v. Superior 1100,3 supra, 19 at the minor’s counsel said of the Cal.App.4th page courts, in the proceedings “The is that is municipal superior not problem what He was happened. with what in adult court.” At quite happy happened no time in the court did the minor juvenile move to set aside his no contest Further, the minor never filed plea. any request municipal superior 23, 1997, court to withdraw his no contest On plea. September juvenile Court, on relying Jose D. v. Superior supra, 19 at Cal.App.4th pages 1100-1101 found that the minor had waived his right be tried as a The juvenile. juvenile set the matter for a At the disposition hearing. 9, 1997, conducted on disposition hearing October court ordered juvenile the minor to remain a ward to Welfare and Institutions delinquent pursuant Code section 602 and committed him to the California Youth for Authority months, five nine years with credit for four hundred fourteen in days confinement custody. consisted of: five period physical years Code, (Health of cocaine base for possession 11351.5); sale & Saf. eight § Court, Superior supra, 3The decision of Cal.App.4th page Jose D. v. at one 19 1100 is opinions discussing present several scenarios such as are in misrep this case where a minor Harris, 837-838, age. resents her or his In the supra, pages decision of In re 5 Cal.4th at Supreme California Court determined that person juvenile whether a is tried in or adult court Therefore, question subject jurisdiction. is not a may right matter individuals waive Likewise, they (Ibid.) pose timely objection. be tried as a if do in Jose D. v. Court, 1100-1101, Superior Cal.App.4th pages 19 Appeal Court of found the minority superior minor’s failure to reveal his until his court trial completed was and he faced sentencing D., right adjudication amounted to a hearing. waiver to an In Jose our colleagues in the Fourth Appellate District concluded that a child is found who to be fit to be (Id. tried as a minor waive the benefits of as trial sentencing. law to but not as to 1100.) at p.
645 13, (Pen. 1996 for the stolen offense property February months receiving Code, 496, offense. and one month for the (a)); fighting public subd. § Code, (Pen. 415.) §
III. Discussion minors have adults in the context of a or no contest guilty plea, Like of the direct conse of an admission to be apprised prior entry to an giving up admitting quences adjudication re (In in a Michael B. whole or in part wardship petition. E., 548, 723, 173]; P.2d In re Ronald [169 Nonetheless, has 321.) Cal.3d at the California Court supra, 19 p. or forfeiture rules in the context of fundamental consistently waiver applied 153, 250 v. Williams 16 Cal.4th rights. (People constitutional that admission of [objection gang parapher Cal.Rptr.2d 710] associational under First and Fourteenth nalia violated defendant’s rights court]; Padilla waived in trial People Amendments when presented 388], P.2d (1995) 11 Cal.4th Cal.Rptr.2d disapproved 971 [47 Hill Cal.4th fn. 1 another point People 656, 952 instruction particular request 673] [failure *11 contention]; where there is no sua to instruct due duty process waived sponte 235, 1060, 1116, (1994) 20 v. 8 Cal.4th fn. People Rodrigues Cal.Rptr.2d [36 trial, 885 federal due fair P.2d defendant’s constitutional process, 1] [the reliable determination claims of a video guilt concerning admissibility in a not in the trial waived case when were tape capital they interposed 664, 140, court]; (1993) v. 6 173 Garceau Cal.4th People Cal.Rptr.2d [24 trial and 862 P.2d Fourteenth Amendment claims to a fair and 664] [Sixth not with selection waived when equal pre connection protection jury 1148, court]; 2 1174 (1992) sented in trial v. McPeters Cal.4th People [9 834, discriminatory juror 832 P.2d Amendment Cal.Rptr.2d [Sixth 146] court]; v. Ashmus selection issue waived in trial presented People when 972-973, 112, 932, (1991) fn. 10 820 P.2d 54 Cal.3d Cal.Rptr.2d 214] [2 self-incrimination, [Fifth, cruel and and Amendment Fourteenth Eighth, failure by due claims waived respectively unusual and punishment, process court].) them rules has been in trial The reason these interpose “ Court as follows: ‘An by appellate articulated California Supreme or rulings, not consider defects erroneous ordinarily procedural will asserted, could or where an objection connection with relief defenses sought but to the lower court some by appropriate have been was not presented acts or involve such intentional method .... circumstances may of estoppel as to be classified under headings appropriately acquiescence Often, however, that it is simply .... waiver explanation unfair an error on to take of advantage and to the adverse judge party trial 646 ” when it could
appeal (Doers have been corrected at the trial.’ easily v. 180, 184-185, Golden Bridge (1979) Gate etc. Dist. 23 Cal.3d fn. 1 [151 837, 1261], 588 P.2d italics.) original The California Supreme “ Court ‘The has held: general doctrine waiver is to purpose a defendant to encourage errors to the the trial bring attention of so that be corrected or they may avoided a fair trial had. . . .’” v. (People 1013, 902, (1991) 54 Walker 861].) 1023 P.2d Cal.Rptr.2d 819 [1 “ ‘ Further the California Court has held: “No Supreme procedural principle is more familiar to this Court than right,” constitutional or a sort, any other be forfeited in criminal as “may well as civil cases by failure to make assertion timely before a tribunal having juris- (United diction to it.” (1993) determine States v. Olano U.S. [Citation.]’ [507 725, 508, 517, 731 L.Ed.2d 1770]].)” 113 S.Ct. (People v. Saunders [123 580, 638, (1993) 5 1093].) Cal.4th 589-590 853 Cal.Rptr.2d [20 The California Court Supreme has only required objections specific connection with assertion of constitutional but rights, assignments error must be made There are well promptly. established consistently applied California Court holdings requiring prompt timely in connection with a host objections whole of constitutional and statutory 894, 25, issues. People (1998) v. 18 Cal.4th (E.g., Frye Cal.Rptr.2d 969 [77 misconduct]; 959 P.2d [prosecutorial (1998) Dennis 17 People v. 183] 468, 680, Cal.4th 950 P.2d Cal.Rptr.2d [prosecutorial mis [71 1035] conduct]; 155, 385, (1996) Cal.4th People Cal.Rptr.2d Alvarez [58 claim]; 926 P.2d Amendment confrontation v. Jackson People 365] [Sixth 1164, 49, 13 Cal.4th 920 P.2d Cal.Rptr.2d [56 1254] [admissi Code, 190.3, under bility gun (b)]; Pen. factor possession People § Turner Cal.4th 176-177 878 P.2d Cal.Rptr.2d 521] claim]; Amendment v. McClellan 6 Cal.4th People [Fourth 376-377 as judge 739] [misadvisement *12 of a 5 People (1993) v. Clark Cal.4th consequences guilty plea]; 689, 994 857 P.2d in Cal.Rptr.2d representation [22 1099] [conflicted Saunders, Amendment]; violation Sixth of the v. 5 People supra, Cal.4th Code, 589 violations of Pen. and p. [statutory 1025 1164 by prematurely §§ 228, (1993) the jury]; v. Welch 5 Cal.4th 235 discharging People [19 520, conditions]; 851 P.2d Cal.Rptr.2d v. [improper probation People 802] 1, 495, 2 (1992) Visciotti Cal.4th 825 P.2d 47-48 Cal.Rptr.2d [5 388] 115, (1990) voir dire v. 52 Cal.3d [improper questions]; People Gallego 179 679, 802 in to destruction of Cal.Rptr. [delay objecting [276 169] 367, evidence]; 731, (1990) v. Cal.3d People Wright 52 411 Cal.Rptr. [276 misconduct]; 802 P.2d (1989) [judicial People Carrera 49 221] 291, 348, 317 777 P.2d of [improper questioning [261 121] witnesses].) in constitutional and issues can consti Delay raising statutory waiver, forfeiture, tute and default of a defendant’s constitutional procedural and claims. statutory
647
rules
these consistently
requiring
though
applied
There are exceptions
in a
and
claims
statutory
of constitutional
and
articulation
prompt
specific
an
court.
to be
in
appellate
Appellate
court
in order for them
raised
trial
a trial
issues not
in
can consider
posited
in certain circumstances
courts
161-162,
148,
fn. 6
Williams
(1998)
Cal.4th
(People
[69
barred
917,
is not
court
jurisdictionally
948 P.2d
Cal.Rptr.2d
[appellate
429]
v. Dotson
People
issue
to the trial judge];
from
an
not
considering
presented
423,
547, 554,
941 P.2d
fn.
(1997)
Cal.Rptr.2d
56]
Cal.4th
[66
le-
unauthorized sentencing
raise issue
[Attorney
may
legally
General
331,
v. Scott
(1994)
Cal.4th
People
for
first time on
the
niency
appeal];
sentences].)
unauthorized
[legally
1040]
issues be preserved
the
that
general
One additional
exception
requirement
involves
articulation in a trial court
guilty pleas
their
and specific
by
prompt
Penal Code section
with the
adults where there has been
by
noncompliance
that
defendant
not receive a
sentence
greater
the
may
1192.5 requirement
“Where
Penal Code
1192.5
in relevant part,
than
section
promised.
provides
court and is
in
by
attorney
the
is
the
accepted
prosecuting
open
plea
court,
defendant,
this
as otherwise
in
provided
the
the
approved by
except
section,
than
on the
more severe
cannot be sentenced
plea
punishment
the
the court
not
as to the
other
plea
that
in
and
specified
plea
may
proceed
the
Court has twice held
than as
California
specified
plea.”4
that when
adult accused
advised that if a
sentence
greater
an
is
properly
seek for the first
time on
may
is
than
the defendant
imposed
promised,
plea
guilty or nolo
entirety,
“Upon
4In its
Penal Code
states:
contendere
section 1192.5
(2),
(6)
(3),
felony,
accusatory pleading charging
paragraph
to an
other than a violation of
or
(a)
(a)
(4)
paragraph
of Section
or
of subdivision
Section
of subdivision
harm,
violence,
264.1,
force,
duress,
great bodily
by
menace or threat of
Section
Section 286
violence, duress,
force,
(b)
by
menace or threat of
of Section
Section 288a
subdivision
harm,
(a)
punishment
the
great bodily
plea may specify
Section
the
or subdivision
by
court
may
specified by
jury
plea
guilty
of not
or fixed
the same extent as it
be
on a
contendere,
exercise
the court
guilty,
may specify
or not
plea
guilty,
on a
nolo
accepted by
is
powers legally
plea
thereafter of other
available to it. Where the
[ID
defendant,
except as
attorney
open
approved by
and is
prosecuting
section,
punishment
cannot be
on the
to a
more
provided
plea
otherwise
in this
sentenced
proceed
to the
than
than
in the
and the court
as
other
specified
severe
that
it
inform
defendant
specified
plea.
approves
plea,
If the court
of the
shall
as
(2) may, at
set
making
approval
binding,
its
is not
it
the time
prior
judgment,
its
application
probation
pronouncement
for
withdraw
case,
matter,
the defendant
light
of further
in that
approval
consideration
if
desires
do so. The court shall also
permitted
be
to withdraw his or her
he or she
shall
freely
satisfy
itself that the
inquiry
an
to be made of the defendant to
cause
*13
made,
is
voluntarily
plea.
accepted
the
If the
and that there is a factual basis for
[1[]
deemed
attorney
by
the
shall be
withdrawn
by
prosecuting
approved
the
the
have been
pleas
then
the
or
as would otherwise
available.
and the defendant
enter
withdrawn,
any
may not be received in evidence
the
or deemed
it
If
is withdrawn
[U]
nature,
criminal, civil,
including proceedings before
proceeding
any
special
action or
commissions, boards,
agencies,
and tribunals.”
to withdraw the
appeal
McClellan,
plea. (People
v.
supra, Cal.4th at p.
9;
Walker,
fn. People v.
However,
In my the limited to the exception objection requirement adult Walker, cases crafted in bargain People v. supra, 54 pages 1024-1025, should not to apply juveniles, where particularly they have engaged minor mendacity displayed by in a case such as this. Penal Code section 1192.5 has no to application It juveniles. refers to defendants, not minors. The of law provisions pertinent minors do not contain similar as in language Penal Code section 1192.5 to a pertaining violation of a sentencing agreement. Welfare and Institutions Code section 702.5 states: “In any conducted hearing to Section 701 or pursuant 702 to determine whether a minor is a described in Section person 601 or minor has a privilege against self-incrimination and has a to confron- right of, tation by, cross-examination witnesses.” Those must be ex- rights to a plained minor of an prior entry admission. California Rules of Court, 1487(b), (c), (d), rule (e) (f) sets forth the procedure applies in the event of an admission as “(b) follows: (§ 702.5)] [Rights explained After the advice giving rule required by the court shall advise those of each present of the following rights child: The to a right [ft] court on the by issues raised The petition; right [ft] assert the self-incrimination; privilege against (3) The confront [ft] and to cross-examine child; witness called any testify against and [ft] (4) to use the of the court process compel attendance of behalf, witnesses on the child’s (c) of allegations; [ft] [Admission prerequi- sites to The court shall acceptance] then whether the child intends to inquire admit or deny If the child petition. neither admits nor denies the the court allegations, shall state on the record that the child does not admit the If the admit allegations. child wishes to allegations, *14 that the child state the record that it is satisfied shall first find and on court of the the the and the direct consequences understands nature of allegations admission, and understands and waives the rights in subdivision (b). [51] (d) the child consent of Counsel for must counsel—child must admit] [Consent [5D admission, (e) the child by the which shall be made personally. [No to a the allegations, subject enter of no contest to child may plea contest] (§ an (f) 702)] the court On [5Q [Findings the of the court. of to approval contest, findings or the court shall make the following admission of no plea (1) the Notice has been as given required in the minutes of court: noted [5D (3) The [5Q (2) child; law; of residence of the county The birthdate and by the to a on has and waived the right child knowingly intelligently court, and cross-examine adverse wit- the the to confront by issues the of and to the of the court to attendance compel nesses use process behalf, the the against on the child’s and to assert privilege witnesses [5Q self-incrimination; (4) The the nature of the conduct child understands and the of an admission or alleged petition possible consequences contest; [5Q (5) The or no contest and freely of no admission made; [5D There the voluntarily (6) is a factual basis for admission or plea no contest; (7) [51] Those of the petition as admitted are true as [5Q [5Q 602; In The child is section or described alleged; by matter, a a section 602 the offense and it would be degree of whether an . .” misdemeanor or had the offense been committed adult. . felony by (Boldface omitted.) 1478 of the California None rule language minors, Court, to other Rules of law or applicable any provision law, similar to in Penal contains that language portion Hence, 1192.5, section I hold Code section Code 1192.5. would that Penal a to timely the sole basis for statutory excusing imposition objection of that at the of a entry a excess time of disposition promised admission, is a to minor who is violation of litigating inapplicable bargain appeal. Code section its terms only very
Not does Penal 1192.5 apply minor, not be any but and fairness dictate the minor granted logic record further in the face of his dishonesty unending leniency Moreover, are of fact and law the trial courts are where issues criminality. Cal.4th (In re Robbins litigated principally these fair a minor under 311]) and it is to require as a the plea prerequisite circumstances to make motion withdraw it is unfair its in an court. More to appellate point, litigating validity belated challenge to allow a the trial public prosecutor, in the trial could have been presented when the issue validity 590-591; Saunders, Doers Golden 5 Cal.4th at (People supra, pp. 184-185, Dist., 1.) fn. Finally, Bridge pp. etc. 23 Cal.3d Gate *15 650 issue,
terms of the considerations this the policy underlying minor needs to be held misconduct. accountable for his To create an to the exception under these objection requirement facts would elevate a rule of rigid process over the societal important goal minors accountable for their holding criminal conduct which them within the bounds of brings juvenile 642, 668, (1995) law. v. Avila 35 (People fn. 14 Cal.App.4th Cal.Rptr.2d [43 853]; 489, 504, (1995) People Wilder 35 fn. 6 Cal.App.4th [41 463].) These reasons warrant not policy Penal Code section extending 1192.5 to the exception objection requirement case. present
One final note is in order. views in terms of the My reasons which policy support application objection case requirement present should not be construed as are not any suggestion my colleagues cognizant of the minor’s deviousness. I believe are scope as offended they Rather, minor’s as I dishonesty am. believe that they stare principles decisis and the constitutional of all to have the state persons comply with its under a obligations I plea bargain outweigh have set analysis forth the need for a motion concerning to withdraw the in the trial court.
The Absence
a Showing Prejudice
In
if
there is
failure to
appeals,
advise minor as to the
commitment,
of a
potentiality
youth authority
the child has the burden of
857,
(1974)
In re
showing
Citing
Yurko
10 Cal.3d
prejudice.
864 [112
561],
E.,
in the decision of In re
Cal.Rptr.
Ronald
Cal.3d at
the California
Court held:
page
“We announced a
Supreme
declared rule of criminal
judicially
court to admonish
procedure requiring
an accused as to the
of an admission which
him
consequences
subject
severe sanctions. Unlike an uninformed waiver of the
constitu-
specified
tional
which renders a
or admission
rights
that
involuntary
requires
aside,
it be set
an uninformed waiver based
the failure
on
of the court to
admission
advise an accused of the
of an
constitutes error
consequences
which
that
admission be set aside
if the error is
requires
only
prejudicial
(Fn. omitted.)
to the accused.
Court then
applied
[Citation.]”
conclude,
that
later in its
as follows: “We
analysis
that
opinion
accordingly,
admission of the truth of the
petitioner’s
third
supplemen-
tal
was entered without
with such
petition
Boykin-Tahl
compliance
require-
ment.
v. Alabama
[(Boykin
IV. Conclusion reasons, the orders under review For I would foregoing modify has cocaine purposes indicate the minor been found have possessed and reduce the Code section 11351 Safety sale in of Health violation confinement physical accordingly. maximum period was denied April for review the Court Respondent’s petition 21, 1999.