Opinion
F074146
07-21-2017
In re J.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.M., Defendant and Appellant.
Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Henry J. Valle, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CEJ600070-2)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Michael G. Idiart, Judge. Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Henry J. Valle, Deputy Attorney General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Franson, J. and, Peña, J.
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Appellant J.M., a minor, appeals from the dispositional order in this matter, finding true the contention that appellant committed the crime of rape, accomplished by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another. (Pen. Code, § 261, subd. (a)(2).) Following our review of appellant's initial brief, filed pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we requested supplemental briefing addressing three issues concerning appellant's advisement regarding registration under section 290 and any potential claim of ineffective assistance of counsel arising at the time of appellant's plea. Appellant responded to that request by contending his plea advisement was improper, that he would not have admitted the petition if properly advised, and that he received ineffective assistance of counsel at his dispositional hearing. For the reasons set forth below, we affirm.
All further references are to the Penal Code unless otherwise noted. --------
FACTUAL AND PROCEDURAL BACKGROUND
On April 15, 2016, a first amended juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, subdivision (a), containing six counts alleging appellant committed the crimes of forcible rape (§ 261, subd. (a)(2)), forcible lewd act upon a child (§ 288, subd. (b)(1)), two counts of false imprisonment by violence (§ 236), forcible oral copulation (§ 288a, subd. (c)(2)(B)), and exhibiting a minor in pornography (§ 311.1, subd. (a)). The charges arose based on at least two alleged incidents involving a young girl appellant knew. In the first incident, appellant and one of his friends confronted the victim in a bedroom while at another friend's house. The two held down the victim and forcibly engaged in intercourse with her. In the second incident, appellant and two of his friends confronted the same victim on the street. They took a cell phone from her and insisted she accompany them to a friend's garage to get it back. At the garage, they forced the victim into the back seat of a car and made her perform oral sex on one of the three, while appellant recorded the incident.
At a hearing on May 25, 2016, appellant and his codefendants requested and received an extension of time to discuss a pending plea offer, stating they expected to change their plea and needed time to discuss the current offer. The offer was for appellant to admit to the forcible rape and exhibiting a minor in pornography charges, in exchange for the other charges being dropped. Following this extension, appellant indicated his desire to accept the plea and admit to the two charges.
The juvenile court then proceeded to "go over [appellant's] trial rights and the possible consequences of an admission." In the course of this discussion, as the court was proceeding through the charges in the petition, the following exchange between the juvenile court, the People, and appellant's counsel occurred with respect to the potential need for appellant to register as a sex offender under section 290:
"THE COURT: Now, does this - - due to his age, does the 290 registration not apply?
"[DEFENSE COUNSEL]: It does not.
"[PROSECUTOR]: It does not, Your Honor."
A second, similar exchange occurred with respect to count 6. When asking for appellant's admission, the juvenile court stated: "This also requires a provision of a blood sample, as I went over it with the other count to you. [¶] And because of your age, apparently the 290 registration doesn't apply." Contradicting the juvenile court's statements, in the actual petition, both counts 1 and 6 contained the following language below the charges: "NOTICE: Conviction of this offense will require you to register pursuant to Penal Code section 290. Willful failure to register is a crime."
Following these discussions, and the recitation of the factual basis for the plea, the court accepted appellant's admissions and dismissed counts 2 through 5. The matter was then set for a disposition hearing. However, shortly after the hearing ended, appellant was returned to the courtroom due to a dispute over the consequences of the plea. The People stated appellant's juvenile record could not be sealed under the terms of the agreement and that appellant would be eligible for placement at the Department of Juvenile Justice (DJJ). With respect to registration, the People suggested appellant would not be required to register, stating "and only 290, if he goes to - - no, he can't actually get 290, but it will be considered a non strike, and he is DJJ eligible."
In response to this argument, the juvenile court advised appellant his admission could result in placement at the DJJ. Appellant's counsel then requested an opportunity to conduct further research. According to counsel, "what the Court just went through with [appellant], along with the possibility of sealing this conviction, were major factors in the plea bargaining and discussions of this case" and the suggested consequences raised by the People "impact[s] whether or not [appellant's] family would want to continue with [appellant's] plea." The court subsequently granted an extension, noting that "at this point, there is no admission made formally."
Following the extension, the juvenile court reconvened to determine whether appellant wished to proceed with admitting the petition. Appellant's counsel requested appellant's petition remain in place and explained to the juvenile court that further research had confirmed appellant's record could be sealed upon turning 18 if he properly complied with the court's requirements. The juvenile court also formally advised appellant his admission could result in his placement at the DJJ. No further discussion concerning any potential registration requirements occurred. Appellant also confirmed he wished for his admission to stand.
At the June 23, 2016, disposition hearing, another issue arose. The People indicated to the juvenile court that appellant would not be eligible for placement at the DJJ based on his admission to count 6. The People sought to dismiss count 6 to ensure appellant would be eligible for a DJJ placement in the future. Appellant's counsel submitted on the request "based on the bench discussions we had earlier this morning, specifically the Court's indicat[ion] of at least an initial disposition" and acknowledged appellant knew the DJJ was an option should there be a violation of probation in the future.
The juvenile court granted the People's request, dismissed count 6, and moved forward with appellant's disposition. The juvenile court ordered appellant to serve 365 days at the Juvenile Justice Center, imposed several other terms and conditions, and noted the seriousness of appellant's conduct before stating, "but for your age you'd probably be going to DJJ. And there's eight years hanging over your head, and I suggest that if there's any hiccups, that you're going to be hiccupping right into DJJ."
This appeal timely followed. Appellant initially filed a Wende brief requesting this court review the record for arguable issues. As a result, this court ordered supplemental briefing on the following questions:
1. Was appellant incorrectly advised that because of his age he would not be required to register as a sex offender?
2. If appellant was incorrectly advised, does the record demonstrate he would not have pled guilty if he knew the registration requirement was a possible consequence of his plea?
3. Was appellant deprived of the effective assistance of counsel at the time of his plea?
Appellant and the People filed the requested briefing. We now consider those issues.
DISCUSSION
Appellant and the People agree that, as stated by the trial court and confirmed by counsel, appellant was incorrectly advised that his age exempted him from any registration requirements under section 290. The People argue, however, that registration was not a direct consequence of appellant's juvenile plea and therefore it was proper, under the circumstances, to instruct appellant he would not have to register. Alternatively, the People argue the record does not demonstrate appellant would not have admitted the petition had he been properly instructed. With respect to whether appellant received ineffective assistance of counsel, appellant states he received effective assistance at the time he entered his admission, but received ineffective assistance of counsel at his disposition, when counsel failed to object to dismissing count 6.
Standard of Review and Applicable Law
"When a criminal defendant chooses to plead guilty ..., both the United States Supreme Court and [the California Supreme Court] have required that the defendant be advised on the record that, by pleading, the defendant forfeits the constitutional rights to a jury trial, to confront and cross-examine the People's witnesses, and to be free from compelled self-incrimination. [Citations.] In addition, [the California Supreme Court] has required, as a judicially declared rule of state criminal procedure, that a pleading defendant also be advised of the direct consequences of his plea. [Citations.] If the consequence is only collateral, no advisement is required." (People v. Gurule (2002) 28 Cal.4th 557, 633-634.) Except for the right to a jury trial, the procedural safeguards accorded an accused in a juvenile proceeding are identical. (In re Ronald E. (1977) 19 Cal.3d 315, 320-321, abrogated on another ground as stated in People v. Mosby (2004) 33 Cal.4th 353, 360-361; In re Chadwick C. (1982) 137 Cal.App.3d 173, 182.) "[T]he failure of the court to advise an accused of the consequences of an admission constitutes error which requires that the admission be set aside only if the error is prejudicial to the accused." (In re Ronald E., supra, 19 Cal.3d at p. 321.) Where, as here, juvenile delinquency proceedings are concerned, a showing of prejudice requires that the minor affirmatively demonstrate it is "reasonably probable that such admonishment would have persuaded [him] to deny the truth of the allegations." (Id. at pp. 325-326.)
The California Supreme Court has held that the duty to register as a sex offender under section 290 is a direct consequence of a conviction for committing a sex offense specifically enumerated therein. (People v. McClellan (1993) 6 Cal.4th 367, 376.) Whether the consequence is discretionary or potentially subject to future relief does not relieve the court of advising of the registration requirement. (See People v. Zaidi (2007) 147 Cal.App.4th 1470, 1485-1486.)
Appellant Has Not Demonstrated Prejudice
Contrary to the People's position, we have no doubt that the juvenile court was obligated to inform appellant of the potential registration requirements arising as a consequence of his plea. Indeed, the juvenile court and the People appeared to be aware of this requirement at the time of the plea discussions, touching on the potential obligation to register several times. In light of this obligation, we also recognize that the juvenile court erred when it expressly instructed appellant he did not face a potential registration requirement based on his age at the time of the offense. The registration requirement of section 290 does not have an age-based component. (See § 290.008, subd. (a) ["Any person who, on or after January 1, 1986, is discharged or paroled from the Department of Corrections and Rehabilitation to the custody of which he or she was committed after having been adjudicated a ward of the juvenile court pursuant to Section 602 of the Welfare and Institutions Code because of the commission or attempted commission of any offense described in subdivision (c) shall register in accordance with the Act."].) Rather, registration is required if appellant is placed in the DJJ. (See In re Bernardino S. (1992) 4 Cal.App.4th 613, 619-620.) The court's indication that appellant would not have to register, regardless of his ultimate disposition, purely due to his age was therefore incorrect.
However, setting aside his admission due to this faulty instruction requires demonstrating appellant would probably not have admitted the petition if properly instructed. On this point, appellant argues his ability to have his records sealed was a major factor in his plea negotiations. As shown above, appellant delayed his admissions in order to fully research whether he would be able to seal his records upon a successful completion of probation and reserved the right not to admit to the petition should this not be the case. We do not agree, however, that appellant's concern over sealing his records demonstrates he would have failed to admit the petition had he been aware of the potential registration requirement. Under appellant's initial admission, he was apparently ineligible for placement at the DJJ and, thus, would not have likely rescinded his admission if properly advised. (See Welf. & Inst. Code, § 733, subd. (c).) Moreover, even if committed to the DJJ, appellant was still eligible to have his records sealed. (Welf. & Inst. Code, § 781, subd. (d).) Under the registration statute, "[a]ll records specifically relating to the registration in the custody of the Department of Justice, law enforcement agencies, and other agencies or public officials shall be destroyed when the person who is required to register has his or her records sealed." (§ 290.008, subd. (e); see Welf. & Inst. Code, § 781, subd. (c).) Thus, appellant's desire to ensure his records could be sealed would not be affected by a registration requirement. There is no indication that the prospect of a potential future registration requirement would have deterred appellant from initially admitting the petition.
Appellant Has Not Demonstrated Ineffective Assistance of Counsel
As part of our order for supplemental briefing, we requested the parties to address whether appellant received ineffective assistance of counsel at the time of his plea. To establish ineffective assistance of counsel, appellant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
Appellant does not argue ineffective assistance of counsel at the time appellant entered his admission. Having found no prejudice arising from the court's incorrect advisement, we agree that appellant cannot demonstrate the results of the proceedings would have been different had counsel recognized the court's error and advised appellant accordingly.
Appellant does, however, contend he received ineffective assistance of counsel at his disposition hearing. Specifically, appellant contends his counsel was ineffective in failing to object to dismissing count 6, thereby placing appellant at risk for a greater punishment by allowing for a potential DJJ placement and subsequent registration requirement. As an initial matter, our supplemental briefing order did not request argument on this issue. However, because appellant cannot show ineffective assistance of counsel on the current record, we briefly consider his claim.
" 'Tactical errors are generally not deemed reversible; and counsel's decision-making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation ...." ' " (People v. Hart (1999) 20 Cal.4th 546, 623-24.) "An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.)
Here, the record demonstrates at least one reasonable basis why appellant's counsel did not object. The People had filed a written motion demonstrating that the juvenile court was within its discretion to dismiss an admitted charge in order to render a juvenile eligible for commitment to the DJJ. Such dismissal may be appropriate even after a juvenile has admitted to the charges in a petition. (See In re Greg F. (2012) 55 Cal.4th 393, 401-402, 420 [finding court was within discretion to dismiss later 602 petition, after admissions entered, in order to permit more serious commitment based on later filed probation violation alleging same acts].) At the same time, the juvenile court appears to have indicated it did not believe a DJJ commitment was appropriate at the time. As such, it is possible that appellant's counsel did not object due to futility and because he would risk upsetting a favorable tentative disposition.
On such a record, it is not proper to infer that counsel's conduct was deficient. "[N]ormally a claim of ineffective assistance of counsel is appropriately raised in a petition for writ of habeas corpus .... where relevant facts and circumstances not reflected in the record on appeal, such as counsel's reasons for pursuing or not pursuing a particular trial strategy, can be brought to light ...." (People v. Snow (2003) 30 Cal.4th 43, 111.) Reviewing courts should not become engaged " 'in the perilous process of second-guessing.' " (People v. Pope (1979) 23 Cal.3d 412, 426.) Restraint avoids the risk of unnecessarily ordering reversal in a case "where there were, in fact, good reasons for the aspect of counsel's representation under attack. Indeed, such reasons might lead a new defense counsel on retrial to do exactly what the original counsel did, making manifest the waste of judicial resources caused by reversal on an incomplete record." (Ibid.)
DISPOSITION
The order is affirmed.