IN RE: THOMAS G.

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Court of Appeal, First District, Division 3, California.

IN RE: THOMAS G., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. THOMAS G., Defendant and Appellant.

No. A068385.

Decided: March 29, 1996

Leo Paoli, under appointment by the Court of Appeal, Napa, for defendant and appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Ann K. Jensen, Donald B. Chew, Deputy Attorneys General, San Francisco, for plaintiff and respondent.

The minor 1 appeals from the order of the juvenile court committing him to the California Youth Authority (CYA) following a violation of probation.   He alleges he was not adequately advised of his constitutional rights nor did he knowingly and voluntarily waive them before admitting the probation violation.   While the waiver of rights was deficient, we hold the error was harmless.   Additionally, he alleges the juvenile court abused its discretion in committing him to CYA. We disagree and affirm.

Facts

At the age of 16, Thomas was charged in his first jurisdictional petition with receiving stolen property, following the theft of a car by another minor.   He had previously been referred to the Theft Awareness program, following an earlier arrest.   On January 9, 1992, he stipulated to the receiving stolen property allegation.   According to the dispositional report, Thomas admitted occasional use of alcohol and marijuana, had been transferred from one high school because of behavioral problems, and was currently in continuation school where his attendance and academic performance were poor.

On August 4, 1992, the minor's mother reported she had not seen Thomas since August 1 and did not know his whereabouts.   A warrant was issued for his arrest but recalled a week later when Thomas and his mother appeared in court.

On November 2, a supplemental petition was filed, alleging the minor failed to attend school on 22 days, in violation of his probation.   His mother reported he was beyond her control, not making his whereabouts known and often staying out past the 10 p.m. curfew imposed as a condition of probation.   Thomas was arrested and produced a urine sample, which tested positive for marijuana.   Following a full admonition and proper waiver of rights, he admitted the failure to attend school.   He spent five days at juvenile hall for this violation and was continued on probation under the same terms and conditions.

On February 9, 1993, a second supplemental petition was filed, alleging Thomas had committed a felony battery with serious bodily injury.   Following a full jurisdictional hearing, the juvenile court found the allegation true.   Thomas spent another five days in juvenile hall, but the remainder of his sixty-day sentence was suspended pending his successful completion of probation.

On April 12, a third supplemental petition was filed.   Thomas had once again tested positive for marijuana, following an arrest for failure to comply with the directions of his probation officer.   After a complete waiver of rights and admission of the allegation, his previously suspended term in juvenile hall was imposed.

On August 10, a fourth supplemental petition was filed, alleging Thomas had used illegal drugs.   The minor again waived his rights and admitted the allegation, but, while awaiting disposition, he tested positive for marijuana.   Additionally, he had in large part failed to comply with a condition of his probation requiring him to complete community service work, even though he had been unemployed and was not attending school during the summer.   He was continued on probation and ordered to serve 20 days in juvenile hall.

On November 2, Thomas was stopped by the police while driving a car with equipment violations.   He appeared to be under the influence of drugs and was in possession of marijuana cigarettes and methamphetamine.   A fifth supplemental petition was filed.   Yet again, Thomas waived his rights and admitted violating various conditions of his probation and the commission of new offenses.   Because Thomas had reached the age of 18, out-of-home drug rehabilitation resources were not available.   The court continued him on probation and ordered him to spend 120 days in juvenile hall.

On July 9, 1994, Thomas left home in Mendocino County without permission.   He was arrested in Trinity County on July 12 on a felony charge of driving under the influence of alcohol or drugs resulting in injury.   The minor had driven a car off the road and down several hundred feet of embankment, injuring himself and two passengers.   He admitted having used marijuana earlier in the day and that there was a quantity of methamphetamine in the car at the time of the accident.   According to an officer on the scene, the minor appeared to be under the influence, possibly of marijuana.2

On that basis, a sixth supplemental petition was filed in Mendocino County, alleging the minor had violated probation by failing to obey all laws, failing to make his whereabouts known to his parent at all times, and by possessing or consuming alcohol or illegal drugs.   Initially, Thomas waived his right to a speedy adjudication of the petition in order to be transported to Trinity County for resolution of the felony charges there.

On September 29, in the adult court for Trinity County, Thomas pled guilty to driving under the influence of drugs resulting in injury.   He was sentenced to the low term of 16 months in prison to be served in CYA. That sentence was conditioned upon his receiving at least a 16–month sentence in Mendocino County Juvenile Court to be served concurrently with the Trinity County sentence.

On October 7, Thomas admitted the allegations of the sixth supplemental petition in Mendocino County.3  After various programs of counseling and periods of confinement in juvenile hall, he had failed to respond to the probation department's intervention efforts.   Instead, he consistently violated the terms of his probation and the directives of his probation officer.   The probation officer concluded Thomas was in need of a one- to two-year drug treatment program.   The officer noted that, because of Thomas's age, the county would have to pay the full cost of any independent substance abuse treatment program.   Consequently, the officer made the following recommendation:  “Therefore, I am recommending Thomas be committed to the California Youth Authority where I believe Thomas can benefit from the twenty-two formalized drug treatment programs available through the California Youth Authority.   The California Youth Authority also has a parenting project for incarcerated fathers, which is designed to provide fathers with positive parenting education and role models.[ 4 ]  ․ [T]he average stay at this time is approximately eighteen to twenty-two months.   Early parole is based on the youth completing and fully participating in the programs, and working on their identified issues, such as drugs, and acceptance of responsibility of their actions.   I believe Thomas can become successful if he so desires and takes advantage of the programs available to him at the California Youth Authority.”

At Thomas's request, the court granted a continuance so counsel could determine if Thomas was eligible for funding for a substance abuse treatment program.   Thomas's counsel told the court she understood the Trinity County court had sentenced Thomas to 16 months in prison (to be served at CYA) only because that court was told that Thomas would definitely be sent to CYA by the Mendocino County Juvenile Court on the probation violation.   Counsel was concerned that each court was sentencing Thomas to CYA, rather than granting probation, only because it believed the other court was doing so.   Counsel gave the Mendocino County court permission to contact Trinity County authorities and determine their position on the sentence.

On December 15, the Mendocino County Juvenile Court informed counsel that it had contacted the judge and deputy district attorney in Trinity County and had determined “․ that if [Thomas] did not receive a California Youth Authority commitment in [Mendocino] county, that the matter was to go back to Trinity County and they were prepared to prosecute the matter;  that Thomas would have the right to withdraw his plea, and if he did so, they were prepared to prosecute the matter.”   Counsel then informed the court she had been unable to secure independent funding for a substance abuse program.

The court then ruled as follows:  “Thomas has failed to change on probation that's been granted in the past.   As I look at the options that are available, I agree ․ that one of the things that Thomas needs to do is come to grips with the substance abuse problem.  [¶] You need to be in some sort of treatment where you are there and the treatment is there and you don't go away from the treatment.   I find that the best place for that in your case at this time is the Youth Authority, because they do have the facilities and they will offer the treatment.  [¶] You are committed to the California Youth Authority, and that will be for the term of four years and 10 months on the offenses as set forth in the proposed findings and orders.”

Discussion

I. Waiver of Rights

The minor alleges he did not voluntarily and intelligently waive his constitutional rights before his admission of the allegations in the sixth supplemental petition.   Here, the record shows only that, after the minor admitted the violation, the court asked his attorney whether Thomas had waived his constitutional rights.   The attorney answered affirmatively.   The record does not reflect the rights of which Thomas was informed, whether he understood them, or whether any waiver was voluntary.   The Attorney General argues that, despite the inadequacy of the advisement and specific waiver, the record as a whole demonstrates the minor voluntarily and intelligently made his admission.

 According to Boykin v. Alabama (1969) 395 U.S. 238, 242, 89 S.Ct. 1709, 1711–12, 23 L.Ed.2d 274, there must be an affirmative showing that a guilty plea was made intelligently and voluntarily in order to be upheld.   Specifically, an intelligent and voluntary plea requires knowledge and relinquishment of the rights to jury trial, to confront adverse witnesses, and against self-incrimination.  (Id. at p. 243, 89 S.Ct. at p. 1712.)   In In re Tahl (1969) 1 Cal.3d 122, 132–133, 81 Cal.Rptr. 577, 460 P.2d 449, the California Supreme Court required express advisement and waiver of the three Boykin rights.5  In the years following Tahl, the Supreme Court on several occasions stated that failure to expressly advise the defendant and to obtain express waivers of the Boykin–Tahl rights was reversible per se.   (People v. Wright (1987) 43 Cal.3d 487, 493–495, 233 Cal.Rptr. 69, 729 P.2d 260;  In re Ibarra (1983) 34 Cal.3d 277, 283, fn. 1, 193 Cal.Rptr. 538, 666 P.2d 980;  In re Ronald E., supra, 19 Cal.3d at pp. 320–321, 137 Cal.Rptr. 781, 562 P.2d 684.)   The court later acknowledged that these statements were not holdings but rather analogies or dictum.  (People v. Howard (1992) 1 Cal.4th 1132, 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315 (Howard ).)

In People v. Guzman (1988) 45 Cal.3d 915, 968, 248 Cal.Rptr. 467, 755 P.2d 917 (Guzman ), before admitting two prior convictions for purposes of enhancement,6 the defendant was erroneously informed he had a right to a “hearing” on that subject, rather than a right to a “jury trial.”   In an apparent rejection of the reversible-per-se rule, the Supreme Court upheld the admissions, despite the defective waiver, on the basis that there was no “reasonable probability” that had the defendant been properly advised he “(i) would have denied the priors and (ii) they would not have been found true.”   (Ibid.) 7

Recently, the Supreme Court again departed from the reversible-per-se rule, but on different grounds.   In Howard, supra, the defendant was not advised of, nor did he waive, his right against self-incrimination before he admitted a prior conviction enhancement.  (1 Cal.4th at pp. 1179–1180, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   The court held there need not be express advisements and waivers of the Boykin–Tahl rights;  however, “[t]he record must affirmatively demonstrate that the plea was voluntary and intelligent under the totality of the circumstances.”  (Id. at p. 1178, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   The court went on to find that the defendant's admission was voluntary and intelligent based upon the entirety of the record.  (Id. at p. 1180, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   The court did mention Guzman 's departure from the reversible-per-se rule but did not expressly overrule or disapprove Guzman, nor did it explain the status of Guzman 's harmless error rule in light of the totality of the circumstances rule set forth in Howard.   (Howard, supra, at p. 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   Notably, however, the court specifically rejected a standard of review that “requires reversal regardless of prejudice.”  (Id. at p. 1178, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

 Howard and Guzman may be harmonized in the following manner.   In order for a plea (or as here, an admission) to be constitutional, a defendant must intelligently and voluntarily waive his Boykin–Tahl rights.   This waiver is ordinarily proved by express evidence in the transcript of the proceedings.   However, according to Howard, when the entirety of the record demonstrates that the waiver was intelligent and voluntary, there is no need to set aside the plea.8  According to Guzman, even when the entire record fails to demonstrate the waiver was made intelligently and voluntarily, reversible error occurs only if there is a reasonable probability that had the defendant been properly advised he would not have entered into the waiver and the prior conviction would not have been found true.9

A. Totality of the Circumstances

 At the outset, we note that the perfunctory inquiry used by the trial court is a practice sternly to be discouraged.   The court certainly has an obligation to ensure that each accused individual knows and understands his rights before he gives them up.   Additionally, the litigation spawned by such a truncated inquiry is costly and almost completely avoidable.   Having so observed, we begin our analysis here by reviewing the record to determine if, despite the lack of express advisement and waiver, the record nonetheless demonstrates that Thomas intelligently and voluntarily relinquished his rights.   First, we address the Attorney General's claim that we may consider the minor's entire delinquent history, specifically previous advisements and waivers, as part of this record.

Ordinarily, when reviewing the constitutionality of a plea from the adult court, the appellate court has before it only the transcript of the particular plea at issue.   There may be evidence in an appellate record that an adult previously entered pleas of guilty or nolo contendere to other criminal charges.   This evidence could take the form of a probation report or rap sheet detailing previous criminal charges and dispositions.   However, as a matter of course, there is no complete record of the actual advisement and waiver of rights in those earlier proceedings.   The appellate record in a juvenile proceeding is quite different.   On appeal in a juvenile case, the appellate court often has a record of the juvenile's entire delinquent history, including the transcripts of previous proceedings.   Here, for instance, in addition to the transcript of the minor's admission of the sixth supplemental petition, we have the reporter's transcript of the minor's admission of four other supplemental petitions and the entire transcript of the hearing conducted on the second supplemental petition.   Consequently, the record contains ample evidence that the minor waived his Boykin–Tahl rights four times previously and exercised those rights on a fifth occasion.

 The question before us is whether this record of the minor's admission of the sixth supplemental petition establishes an intelligent and voluntary waiver.   Evidence that the minor was previously advised of, waived, or exercised his constitutional rights is relevant on that question.   However, the circumstances of the sixth supplemental petition were quite different from those of the previous petitions.   Here, the minor had recently pled guilty to criminal charges in the adult court of another county, arising out of the same incident that formed the basis of the sixth supplemental petition in the juvenile court.   In spite of the minor's previous awareness of his rights, the sixth supplemental petition presented a unique situation.   We cannot say, on this record, that the minor was aware that he retained the panoply of constitutional rights in this juvenile proceeding, given that he had already admitted his culpability in adult court.   Consequently, though the evidence of previous proceedings is relevant, it cannot save this defective admission.

The colloquy between the court and the minor before his admission was completely devoid of any reference to the Boykin–Tahl rights or any waiver of those rights by the minor.  (See fn. 3, ante.)   The only mention of a waiver came after Thomas's admission.   Then, counsel responded to the court's question and said the minor waived his constitutional rights.   Thomas's admission is analogous to those found to be deficient because no advisement or waiver had been conducted before or after the admission of prior conviction enhancements.  (People v. Stills (1994) 29 Cal.App.4th 1766, 1769–1771, 35 Cal.Rptr.2d 486;  People v. Johnson (1993) 15 Cal.App.4th 169, 177–178, 18 Cal.Rptr.2d 650;  People v. Moore (1992) 8 Cal.App.4th 411, 416–418, 10 Cal.Rptr.2d 286.)   Similarly, in People v. Howard (1994) 25 Cal.App.4th 1660, 1665, 31 Cal.Rptr.2d 103, the defendant was advised of and waived his right to a jury or court trial as to a prior conviction enhancement.   However, there was no advisement or waiver of his right to confrontation and against self-incrimination.   His admission was invalid.

We distinguish various cases in which a defective waiver was upheld based upon the totality of the circumstances.   In Howard, supra, 1 Cal.4th at pages 1179–1180, 5 Cal.Rptr.2d 268, 824 P.2d 1315, the defendant admitted a prior conviction enhancement after being advised of and waiving his right to jury trial and to confront the witnesses against him.   Although no express advisement or waiver of the right against self-incrimination occurred, the court found “[t]he record in this case affirmatively demonstrates that defendant knew he had a right not to admit the prior conviction and, thus, not to incriminate himself.”  (Id. at p. 1180, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

In People v. Randle, supra, 8 Cal.App.4th at pages 1031–1034, 10 Cal.Rptr.2d 804, while the jury deliberated on the issue of guilt, the defendant admitted his prior conviction.   The court first advised him of his Boykin–Tahl rights but obtained an express waiver of the rights to confrontation and against self-incrimination only.   Nonetheless, the court concluded a valid waiver of the right to jury trial had occurred:  “Appellant knew that, by admitting the prior conviction at a time when the jury was still deliberating, he was giving up his right to have that jury decide the issue of the prior.   Rather, that issue was being decided, by his admission to the trial judge in the jury's absence, at the very time the jurors were still deliberating.”  (Id. at p. 1035, 10 Cal.Rptr.2d 804.)

Finally, in People v. Sovereign (1993) 27 Cal.App.4th 317, 39 Cal.Rptr.2d 38, the defendant pled guilty as charged, but the record contained no express advisement or waiver of the right to jury trial.   The court upheld the plea:  “The record reveals appellant was actively represented by counsel and preparing for trial prior to his decision to enter a guilty plea.   Before entering his plea appellant was advised by the court that he would be giving up the right to confront his accusers and his right against self-incrimination.   Appellant was further advised that he would be relinquishing the right to present a defense and to present witnesses on his behalf.   Appellant stated he understood and waived these rights.  [¶] ․ Appellant was present when both the court and defense counsel specifically mentioned that he would be waiving his right to a jury trial by entering a guilty plea.   He did not question or rebut this assertion, nor did he thereafter move or ask the trial court to vacate his plea.”  (Id. at p. 321, 39 Cal.Rptr.2d 38.)

In the foregoing cases in which the appellate courts upheld admissions or pleas despite inadequate waiver, there was evidence in the record that the defendant was expressly advised of and waived some of his rights and must have voluntarily and intelligently waived other rights by clear implication.   The same cannot be said of the record before us.   Thomas was not expressly advised of, nor did he expressly waive, any rights.   His counsel's comment to the contrary contains no specific information from which we can imply a voluntary and intelligent waiver.

B. Harmless Error

 Next, we consider whether the defective waiver of rights was harmless error.   According to Guzman, supra, 45 Cal.3d at page 968, 248 Cal.Rptr. 467, 755 P.2d 917, in order to satisfy a test of harmless error, a defendant must show a different outcome was reasonably probable absent the error.   In the context of an inadequate waiver, the minor must show a reasonable probability that he would not have admitted the allegations of the supplemental petition if he had been properly advised of his rights and that the allegations would not have been found true.   Acknowledging Guzman 's application of a harmless error analysis, we review the error here under the more stringent standard of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, which requires reversal unless the error is harmless beyond a reasonable doubt.   We do so because federal constitutional error is ordinarily examined under the Chapman standard, rather than the “reasonable probability” standard first articulated in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 and employed in Guzman.10

 The minor has made no showing of prejudice.   We are convinced beyond a reasonable doubt that no different outcome would have occurred had the minor been adequately advised.   The record indicates the minor pled guilty to felony charges in Trinity County and was sentenced to serve his state prison sentence in CYA in order to avoid an actual state prison commitment.   The Trinity County authorities decided not to pursue a state prison commitment only on condition that the minor be committed to CYA by the Mendocino County Juvenile Court.   There is no reasonable doubt suggesting that, if the minor had been fully advised of his rights, he would have declined to admit the allegations of the petition and foregone the generous joint disposition.   Additionally, there is no reasonable doubt that the minor would not have been found in violation of probation given that his judicial admission of criminal conduct in Trinity County was available to the prosecutor in Mendocino County.  (See People v. Chagolla (1984) 151 Cal.App.3d 1045, 1048–1049, 199 Cal.Rptr. 181.)

Consequently, despite the defective waiver of rights, the minor has not demonstrated the error was other than harmless.

II. Abuse of Discretion **

Disposition

The order of the juvenile court is affirmed.

FOOTNOTES

1.   We recognize Thomas was no longer a minor at the time of his most recent probation violation and disposition hearing.   We preserve the use of the term because the matter reaches us from the juvenile court.

2.   We draw the facts of the Trinity County case from the probation report prepared for the juvenile court in Mendocino County.

3.   The colloquy as to waiver of rights at the time of this admission was as follows:“THE COURT:  Thomas, you understand the allegation here is that you violated the terms of your probation by failing to make your whereabouts known at all times and by consuming alcohol or a drug?“Do you admit that allegation?“THE MINOR:  Yes, sir.“THE COURT:  [Defense counsel], has Thomas waived his constitutional rights and entered this admission with your consent?“[DEFENSE COUNSEL]:  Yes, your honor.”

4.   At the time of sentencing, Thomas was the father of an eight-month-old baby girl.

5.   Juveniles have all the Boykin–Tahl rights except the right to trial by jury.  (In re Ronald E. (1977) 19 Cal.3d 315, 321, 137 Cal.Rptr. 781, 562 P.2d 684.)

6.   The requirement of express admonition and waiver of the Boykin –Tahl rights was made applicable to the admission of prior convictions used as sentencing enhancements in In re Yurko (1974) 10 Cal.3d 857, 863, 112 Cal.Rptr. 513, 519 P.2d 561.

7.   In People v. Ray (1990) 220 Cal.App.3d 943, 948, 269 Cal.Rptr. 682, Division Five of this district held the Guzman harmless error analysis was limited to “assess[ing] the effect of advisements which are overly vague,” rather than to advisements that fail to mention one or all of the Boykin–Tahl rights.   The Ray majority was reluctant to hold that Guzman overruled the earlier decisions in Ronald E., Ibarra, and Wright.  (Ibid.)  However, the Supreme Court has subsequently characterized the standard of review language in those latter cases as dictum.  (Howard, supra, 1 Cal.4th at p. 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   Both the majority and concurring opinions in Ray criticized the reversible-per-se standard and called for clarification by the Supreme Court.  (220 Cal.App.3d at pp. 950–951, 269 Cal.Rptr. 682.)

8.   We do not conclude that no error occurs, because the Supreme Court took pains to reaffirm the requirement of specific advisement and waiver “[i]n the exercise of [its] supervisory powers.”  (Howard, supra, 1 Cal.4th at p. 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   We simply find that in some circumstances the error may be harmless.

9.   In People v. Randle (1992) 8 Cal.App.4th 1023, 1035, 10 Cal.Rptr.2d 804, the court held a technically deficient waiver was voluntary and intelligent on the totality of the circumstances.   However, the court indicated it would also have found any error harmless under the Guzman standard.  (Id. at pp. 1035–1036, fn. 2, 10 Cal.Rptr.2d 804.)

10.   To the extent our interpretation of Guzman is erroneous, we invite the Supreme Court to clarify this area of the law.

FOOTNOTE.   See footnote *, ante.

CORRIGAN, Acting Presiding Justice.

PARRILLI and McGUINESS***, JJ., concur.