IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
October 10, 2012
IN RE ALONZO J., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
ALONZO J., DEFENDANT AND APPELLANT.
(Super. Ct. No. JV130980) APPEAL from the findings and orders of the Superior Court of Sacramento County, Robert M. Twiss, Judge, sitting in the juvenile court.
The opinion of the court was delivered by: Butz , J.
CERTIFIED FOR PUBLICATION
This juvenile delinquency appeal concerns the legal right of a fully able 13-year-old to accept a plea bargain offer without his counsel's consent.
The juvenile here, Alonzo J., was charged in a petition under Welfare and Institutions Code section 602 (hereafter section 602) with two counts of assault with a deadly weapon by means of force likely to produce great bodily injury (a skateboard and a small metal heater) and one count of malicious damage to a door, arising from an argument with his mother. (Welf. & Inst. Code, § 602, subd. (a); Pen. Code, §§ 245, subd. (a)(1), 594, subd. (b)(2)(A).)*fn1
The juvenile court foreclosed Alonzo from accepting a prosecution offer to plead to one felony count of assault with a deadly weapon, with home supervision; in doing so, the juvenile court relied solely on Alonzo's counsel's belief that there was no factual basis for the plea. Following a contested jurisdictional hearing, the juvenile court sustained all three charges against Alonzo, continued him as a ward of the court, and directed his placement in either a foster home, group home, residential treatment center, or the home of a relative or friend.
We conclude the juvenile court erred under California Rules of Court, rule 5.778,*fn2 concerning the acceptance of pleas in juvenile court, and thereby failed to respect Alonzo's personal choice over a fundamental decision in his case--whether to accept the prosecution's plea bargain offer (assuming, as here, that the rule 5.778 criteria that protect the juvenile in accepting a plea bargain offer have been met). Consequently, we shall reverse the juvenile court's adjudication and fashion a disposition in line with analogous law.
FACTUAL AND PROCEDURAL BACKGROUND
The procedural facts are more critical to this appeal than the substantive ones. Consequently, most of our focus will be on the procedural facts.
On the night of November 1, 2010, police responded to a 911 call of a family disturbance at the residence that Alonzo shared with his mother and sister.
Alonzo's mother told the police that she and Alonzo had argued, that Alonzo had swung a skateboard at her and missed, and that he then hit her in the face with a space heater. At the contested jurisdictional hearing, the mother denied making these statements.
Alonzo's sister confirmed to the police that Alonzo "had hit [their] mom in the face" with a portable heater, but at the jurisdictional hearing, the sister did not recall saying this to the police.
Prior to the contested jurisdictional hearing, but apparently with the knowledge that Alonzo's mother and sister were recanting, the prosecution offered Alonzo the following plea: (1) plead to a single felony count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); (2) continue as a ward of the juvenile court (Welf. & Inst. Code, § 725, subd. (b) [previously, in March 2010, Alonzo had admitted a misdemeanor allegation of assault with a deadly weapon against his mother, and was adjudged a ward of the court]); (3) accept home supervision with electronic monitoring; and (4) be credited for time served in juvenile hall.
Alonzo wanted to accept this offer, but his attorney refused to consent. This disagreement spawned an initial Marsden*fn3 hearing on January 25, 2011, over Alonzo's dissatisfaction with his attorney, and a reconvened Marsden hearing on February 2, 2011.
At the initial Marsden hearing, Alonzo stated to the juvenile court that he wanted "to take the felony and get the ankle monitor and go home." Alonzo explained, "Well, I just I'm trying to go home to my family because I've been here for four months [i.e., in juvenile hall], and this is my last year that I get to spend with my sister [(who was 17 years old at the time)]. . . . And she [(Alonzo's attorney)] wants me to take the misdemeanor so I could go to the group home. But then it will be my birthday and I'll miss my birthday with my family. And I just want to spend time with my family. So I wanted to take the felony and get the ankle monitor and go home. But she [(his attorney)] won't agree with me."
Later in the initial Marsden hearing, Alonzo's counsel responded, "I see a little 13-year-old child who's desperate to get out of custody. He wants to be with his family. And he's willing to admit to a felony crime in order to get out of custody even though he himself acknowledges that he did not engage in the conduct of trying to hit or strike his mother with a deadly weapon or assault her with force likely to result in the infliction of great bodily injury."
At the initial Marsden hearing, the juvenile court explained to Alonzo that the prosecution had made a plea offer to Alonzo; that if Alonzo were to accept the offer, that would be how the case would be resolved; and that the offer was "very generous" and "much more favorable" to Alonzo "than the statutory maximums would be in the worst case scenario." Later, the trial court emphasized, in speaking to Alonzo, "Ultimately, these decisions are yours [(regarding the plea offer)] after you get the full benefit of [your attorney's] advice."*fn4
Responding to the juvenile court's last point about Alonzo having the ultimate decisionmaking power regarding the plea bargain offer, Alonzo's attorney noted, "[T]o the extent the Court advised my client that ultimately the decision is up to him, there's actually a [rule of the] California Rule[s] of Court [(rule 5.778)] and a Welfare and Institutions Code [section] [(§ 657, subd. (b))] that indicate unless an attorney representing a minor joins in the admission [of allegations in a section 602 delinquency petition], the Court cannot take the plea [based on such an admission]."*fn5
This prompted the juvenile court at the initial Marsden hearing to explain further to Alonzo, "So if you come in and say I want to admit it because I want to go home, and I ask the lawyers, well, what are the facts that could be proven here in court, if I'm not satisfied that the facts could be proven, . . . that you had, in fact, . . . done what was charged, I would not accept your admission. So you don't have that ultimate say."
With that, the juvenile court at the initial Marsden hearing denied Alonzo's Marsden motion.
About a week later, however, on February 2, 2011, the juvenile court reconvened the Marsden hearing because, said the court, "I may have inadvertently glossed over what the major issue that Alonzo was trying to raise and I wanted to make sure I didn't do that."
As the juvenile court then explained that major issue, "What I'm trying to resolve . . . is whether Alonzo has a right to make the admission [i.e., accept the prosecution's plea bargain offer] because it's solely and exclusively his decision, and there's no legal impediment to that or whether there is a legal impediment to that such that he does not have the right. . . . It seems to me that if you [(Alonzo's attorney)] looked at the circumstance[s] and determine[d] that he, in fact, is guilty but you think that the People can't prove it, he has a right to take the People's offer if he wants to. [¶] On the other hand, if you've [(Alonzo's attorney)] looked at the facts and done your investigation and you've concluded that he simply is not guilty, . . . so that he cannot legitimately stipulate to a set of facts which constitutes proof of [a Penal Code section] 245[, subdivision] (a)(1), then he does not have a right to take the People's offer because he can't get through the plea colloquy [(i.e., a factual basis to support the plea cannot be established)]."
At the reconvened Marsden hearing, the juvenile court then noted that Alonzo's counsel believed Alonzo was "simply not guilty," that the court was "not going to question [defense counsel's] personal assessment," and that that resolved the issue--the matter would be set for trial because no factual basis could be established for an admission of allegations (and the juvenile court affirmed its Marsden denial).
At the Marsden hearings, there was no allegation and no finding that Alonzo personally was unable to knowingly, intelligently and freely accept the prosecution's plea bargain offer.
As we shall explain more fully below, we conclude the juvenile court erred in two ways in considering the prosecution's plea bargain offer to Alonzo, and thereby failed to respect Alonzo's personal choice over a fundamental decision in his case--whether to accept that offer (assuming, as here, that the rule 5.778 criteria that protect the juvenile in accepting a plea offer have been met).
First, the juvenile court erred under the plea procedure for juveniles (rule 5.778) by not allowing Alonzo to plead no contest as an alternative plea procedure to admitting the allegations of the section 602 petition. (Rule 5.778(c), (d), (e).)
Second, the juvenile court impermissibly relied solely on the belief of Alonzo's defense counsel that there was no factual basis for a plea in this case, rather than independently determining this issue itself.
We will initially review the relevant law regarding juvenile and adult pleas and then turn our attention to the plea procedure at issue here.
I. The Law Regarding Juvenile and Adult Pleas
Because an adult defendant in a criminal case has "a constitutionally protected right to participate in the making of certain decisions which are fundamental to his or her defense" (In re Alvernaz (1992) 2 Cal.4th 924, 936 (Alvernaz) [citing "the crucial decision to reject a proffered plea bargain" (ibid.)]), an adult defendant has "personal control"--i.e., a "personal choice" that must be respected--over whether to accept or to reject a plea bargain offer (People v. Frierson (1985) 39 Cal.3d 803, 814 [emphasizing "the need to respect the defendant's personal choice on the most 'fundamental' decisions in a criminal case," including the decision whether to make a plea]; People v. Rogers (1961) 56 Cal.2d 301, 305 [a plea must be made "personally by [a] defendant" and not by his counsel]; Pen. Code, § 1018 ["every plea shall be entered or withdrawn by the defendant himself or herself in open court"]).
Since January 2007, rule 5.778 (formerly rule 1487 and, before that, rule 1354) has governed the process whereby a juvenile may admit, or enter a no contest plea to, allegations set forth in a section 602 delinquency petition. Rule 5.778 is analogous to Penal Code sections 1016, 1018 and 1192.5, which govern the taking of a plea in an adult criminal case. Penal Code section 1016 provides, among other things, that an adult may plead guilty or nolo contendere (no contest). (Pen. Code, § 1016, subds. 1 & 3; see rule 5.778(c), (d), (e) [juvenile may admit the allegations of a section 602 delinquency petition, or may plead no contest to those allegations].) Penal Code section 1018 states that every plea shall be entered or withdrawn "by the defendant himself or herself." (See rule 5.778(d) [admission of allegations "must be made by the child personally"].) And Penal Code section 1192.5 provides for due process in the taking of a plea by requiring the trial court to inquire of the defendant that the plea is freely and voluntarily made, and that there is a factual basis for it. (Pen. Code, § 1192.5, 3d par.; see rule 5.778(f)(5), (6) [the juvenile court must make these findings as well].) The Rules of Court "'have the force of statute to the extent that they are not inconsistent with legislative enactments and constitutional provisions.'" (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1011.)
Cases, too, analogizing these Rules of Court to these Penal Code sections, have recognized, with respect to juvenile plea proceedings, the requirement of a factual basis for a plea bargain based admission of allegations or no contest plea; the requirement for an explanation of the constitutional trial rights waived by a plea; and the requirement that, since a juvenile's admission of a penal charge in a juvenile court proceeding is tantamount to a plea of guilty, the juvenile "must personally" make the admission. (See In re Michael B. (1980) 28 Cal.3d 548, 553-555; In re Jermaine B. (1999) 69 Cal.App.4th 634, 639-640; and In re Regina N. (1981) 117 Cal.App.3d 577, 582-587.)
Thus, in light of these legislative and decisional analogies, the law generally affords juveniles the basic plea rights and protections that it affords adult criminal defendants, assuming those juveniles are, as here, capable of understanding and exercising those rights and protections.
As for the specific language in rule 5.778 that distinguishes between an "admission of allegations" and a "plea of no contest," that language is highlighted below as follows:
"(c) Admission of allegations; prerequisites to acceptance
" . . . If the child wishes to admit the allegations [in the section 602 delinquency petition], the court must first find and state on the record that it is satisfied that the child understands the nature of the allegations and the direct consequences of the admission, and understands and waives the [constitutional trial] rights [specified] in (b).
"(d) Consent of counsel--child must admit
"Counsel for the child must consent to the admission, which must be made by the child personally.
"(e) No contest
"The child may enter a plea of no contest to the allegations, subject to the approval of the court.
"(f) Findings of the court . . .
"On an admission or plea of no contest, the court must make the following findings noted in the minutes of the court: [¶] . . . [¶]
"(5) The admission or plea of no contest is freely and voluntarily made; [and]
"(6) There is a factual basis for the admission or plea of no contest[.]" (Italics added.)*fn6
And we must note one final plea principle. An adult plea statutory counterpart to rule 5.778--Penal Code section 1192.5--"requires a trial court to determine by independent inquiry, before accepting a plea of guilty or nolo contendere [(no contest)] to a felony offense, whether there exists a factual basis for the plea. The purpose behind the inquiry is to '"protect against the situation where the defendant, although he realizes what he has done, is not sufficiently skilled in law to recognize that his acts do not constitute the offense with which he is charged."'" (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576, italics added (Wilkerson).)
With this legal backdrop in mind on the juvenile and adult plea processes, we turn to the plea procedure at issue here.
II. The Plea Procedure At Issue Here
A. The Errors in the Procedure in this Case
Pursuant to the legal principles just set forth, we conclude the trial court erred in two ways in considering the prosecution's plea bargain offer to Alonzo.
First, the juvenile court effectively treated the prosecution's plea bargain offer as calling only for an "admission" by Alonzo of the allegations of the section 602 delinquency petition, to which Alonzo's counsel had to "consent." (Rule 5.778(d).) The juvenile court failed to recognize that Alonzo could, alternatively, "enter a plea of no contest to th[ose] allegations, subject [only] to the approval of the court." (Rule 5.778(e).) Not only rule 5.778, but a related rule as well as statutes recognize this distinction between an "admission" of, and a "no contest" plea to, section 602 petition allegations; this distinction is analogous to the adult criminal plea distinction between pleading guilty and pleading no contest. (Rule 5.754(b); see Welf. & Inst. Code, § 657, subd. (b); see also Pen. Code, §§ 1192.5, 1016, subds. 1 & 3.)
Second, the juvenile court impermissibly relied solely on defense counsel's "personal assessment" that Alonzo, in fact, was not guilty of the two assault charges, and therefore there was no "factual basis" to support the "admission" underlying the prosecution's plea offer (a "factual basis" is required not only for an "admission" of section 602 petition allegations, but also for a "plea of no contest" to such allegations). (Rule 5.778(f)(6).) The juvenile court did not properly "determine[,] by independent inquiry," whether there existed a factual basis for the plea offered Alonzo by the prosecution, through the procedure of a no contest plea. (See Wilkerson, supra, 6 Cal.App.4th at p. 1576.) Our state's high court concluded as follows in People v. Holmes (2004) 32 Cal.4th 432 (Holmes), explaining a trial court's "factual basis" duty under Penal Code section 1192.5 for approving a plea bargain for an adult criminal defendant:*fn7
"We conclude that in order for a court to accept a [plea bargain], it must garner information regarding the factual basis for the plea from either [the] defendant or defense counsel to comply with [Penal Code] section 1192.5. If the trial court inquires of the defendant regarding the factual basis, the court may develop the factual basis for the plea on the record through its own examination by having the defendant describe the conduct that gave rise to the charge [citation], or question the defendant regarding the factual basis described in the complaint or written plea agreement. [Citations.] If the trial court inquires of defense counsel regarding the factual basis, it should request that defense counsel stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement." (Holmes, supra, 32 Cal.4th at p. 436.)
Here, the juvenile court, by relying solely on defense counsel's "personal assessment" to establish the factual basis, did not "independently" determine the factual basis as required by Wilkerson, and did not follow the document-based path set forth by Holmes (see Holmes, supra, 32 Cal.4th at p. 436, citing with approval Wilkerson, supra, 6 Cal.App.4th at pp. 1576-1579).
In short, then, the juvenile court's plea procedure failed to respect Alonzo's personal choice over a fundamental decision in his case--whether to accept the prosecution's plea bargain offer (assuming, as here, the rule 5.778 criteria that protect the juvenile in accepting a plea offer have been met).*fn8
This conclusion raises the question, Did the juvenile court's improper plea procedure prejudice Alonzo? Our answer: Yes, it did.
The fully developed record before us shows a reasonable probability that the plea bargain offer here would have resulted in a more favorable resolution to Alonzo than the jurisdictional hearing. (See Missouri v. Frye (2012) 566 U.S. ___ [182 L.Ed.2d 379, 391] (Frye); Lafler v. Cooper (2012) 566 U.S. ___ [182 L.Ed.2d 398, 413] (Cooper).)
Had Alonzo been allowed, pursuant to the prosecution's plea bargain offer, to plead no contest to a single violation of Penal Code section 245, subdivision (a)(1), the juvenile court would not have sustained two such violations against Alonzo following the jurisdictional hearing, as well as the misdemeanor violation of Penal Code section 594, subdivision (b)(2)(A). And that fully developed record shows a reasonable probability that (1) Alonzo would have accepted the offer (given his comments at the Marsden hearings); (2) the prosecution would not have canceled the offer (given that it made two favorable offers and that its witnesses were recanting); and (3) the juvenile court would have approved the offer (given that the court stated initially that the case would be resolved pursuant to the terms of the plea bargain offer, if Alonzo accepted the offer; and given that the court later found a factual basis that would have supported the plea offer, and a factual basis appeared to be the court's only concern regarding the offer). (See Frye, supra, 566 U.S. at p. ___ [182 L.Ed.2d at p. 391] [applying this three-point test to establish prejudice in the analogous context of a plea offer lapsing or being rejected because of a defense counsel's ineffective assistance, assuming the prosecution and the juvenile court have the authority to exercise this discretion under state law, which they do in California--see Alvernaz, supra, 2 Cal.4th at pp. 942-944]; see also Cooper, supra, 566 U.S. at p. ___ [182 L.Ed.2d at p. 413] [if the record is fully developed on any of these three points, an appellate court may determine that point].)
And that leaves the matter of remedy. As to this matter, we are guided by our state high court's decision in Alvernaz, supra, 2 Cal.4th 924. The Alvernaz court held "that the appropriate remedy for ineffective assistance of counsel that has resulted in a defendant's decision to reject an offered plea bargain (and to proceed to trial [with a less favorable outcome]) is as follows: . . . [T]he district attorney shall submit the previously offered plea bargain to the trial court for its approval, unless the district attorney within 30 days elects to retry the defendant and resume the plea negotiation process. If the plea bargain is submitted to and approved by the trial court, the judgment shall be modified consistent with the terms of the plea bargain." (Id. at p. 944.)
Alvernaz rejected the remedies of specifically enforcing the offered plea bargain, or compelling the prosecution to reinstate the offer, deeming those remedies, following a fair trial and conviction, inconsistent with a trial court's discretion in determining the appropriate sentence and inconsistent with a prosecutor's discretion in negotiating and withdrawing offered plea bargains. (Alvernaz, supra, 2 Cal.4th at pp. 942-944; see also Cooper, supra, 566 U.S. at p. ___ [182 L.Ed.2d at p. 413] [basing the remedy there on the applicable state law from Michigan].)
Alvernaz involved a defense counsel's error that foreclosed the effectuation of a favorable plea bargain offer, while here the juvenile court's error resulted in a similar fate; either way, though, the same endpoint was reached--a favorable plea bargain offer was foreclosed erroneously. Consequently, a similar remedy is appropriate. Furthermore, because this is a juvenile delinquency case with Alonzo as a ward of the juvenile court, we are mindful of the legal requirement that minors under the juvenile court's delinquency jurisdiction "shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances." (Welf. & Inst. Code, § 202, subd. (b).) For these reasons, we fashion the disposition that follows.
The adjudication of the juvenile court is reversed. The prosecution shall submit the extant provisions of the previously offered plea bargain (delineated in the Procedural Facts segment of the Factual and Procedural Background of this opinion) to the juvenile court for its approval, unless the prosecution within 30 days elects to readjudicate Alonzo and resume the plea negotiation process. If the plea bargain is submitted to and approved by the juvenile court, the findings and orders of the juvenile court shall be modified consistent with the terms of the plea bargain. Pursuant to Welfare and Institutions Code section 202, subdivision (b), the juvenile court retains the power to fashion any order appropriate under the circumstances that is not inconsistent with this opinion. (CERTIFIED FOR PUBLICATION.)
We concur: BLEASE , Acting P. J. ROBIE , J.