In re Veronique, F043917 (CA 6/4/2004)

• Decision Date: 04 June 2004
• Docket Number: F043917
• Court: California Supreme Court
• Parties: In re VERONIQUE P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. VERONIQUE P., Defendant and Appellant.

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In re VERONIQUE P., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. VERONIQUE P., Defendant and Appellant.

F043917

Court of Appeals of California, Fifth District

Filed June 4, 2004

Certified for Partial Publication^*

Appeal from a judgment of the Superior Court of Kern County, No. JW089034-04, Charles B. Pfister and Jon E. Stuebbe, Judges.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stan Cross and Barbara J. Moore, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

VARTABEDIAN, Acting P. J.

Fourteen-year-old Veronique P. admitted that she committed a violation of Penal Code section 245, subdivision (a)(1), assault with a deadly weapon, and was found to come within the jurisdiction of the juvenile court within the meaning of Welfare and Institutions Code section 602.¹ She appeals, claiming the juvenile court did not take a proper waiver of rights prior to her admission, the court erred in committing her to the California Youth Authority (CYA), and the court erred in designating her offense as falling within section 707, subdivision (b), because she was 14 years old when she committed the offense. We affirm the juvenile court orders and publish our discussion of the issue raised concerning section 707, subdivision (b).

BACKGROUND^*

Veronique was born in November of 1988. She first came to the attention of the juvenile court at the age of 10. She took $500 or more of her mother's cash. A petition was filed alleging that she committed grand theft, a violation of Penal Code section 487, subdivision (a). Veronique was advised of her constitutional rights and waived them. She admitted a misdemeanor theft violation, and the petition seeking to adjudge her to fall within section 602 was found to be true.

In July of 1999, Veronique was given probation and was housed in juvenile hall pending placement. Her mother did not want Veronique placed with her because the mother could not control her. Veronique was placed in four or more group homes; each placement was terminated shortly after it began because Veronique refused to be compliant and behave. In the interim she was housed in juvenile hall where she also experienced difficulties. Veronique was screened and rejected by 35 placement facilities. In April of 2001 Veronique was placed in the home of her adult sister.

On May 1, 2001, a new petition was filed alleging that Veronique had committed a second degree burglary by entering a church with intent to commit a theft. She was advised of her rights and waived them, admitting to a lesser charge of trespass. She was released to the care of her mother; her sister no longer wanted to care for Veronique because she was out of control.

Veronique failed to make a scheduled court appearance in December of 2001 and a bench warrant was issued. A new petition was filed in January of 2002 alleging a violation of probation. Veronique was advised of her rights and waived them. She admitted the probation violation. She was committed to juvenile hall for a period of time. She made minimal efforts while committed and violated rules. From May of 2002 to September of 2002, Veronique served commitments at three separate group homes. Each of these commitments failed. Veronique ran away from the last two homes. Between the commitments, she was housed in juvenile hall.

Veronique was released to her parent's custody in January of 2003. On March 27, 2003, Veronique got into a verbal altercation with S.W. The altercation escalated when S.W. struck Veronique and walked away. Veronique then stabbed S.W. four times. S.W. required immediate surgery for her wounds and was hospitalized.

A section 602 petition was filed alleging that Veronique committed an attempted murder against S.W. with the use of a deadly weapon and also inflicted great bodily injury on S.W. In addition, it was alleged she committed assault with a deadly weapon and inflicted great bodily injury.

Veronique filed a written waiver of her rights. This waiver was also signed by her attorney. A hearing was held, and Veronique admitted the assault with a deadly weapon. All other allegations were dismissed. Veronique was committed to CYA for four years.

DISCUSSION

I. Waiver of Rights^*

In exchange for an admission to one count of assault with a deadly weapon, the People agreed to dismiss the attempted murder charge contained in count 1, as well as the knife use enhancement and great bodily injury enhancements.

Veronique signed an advisal and waiver of rights form. She admitted count 2 of the petition, a violation of Penal Code section 245, subdivision (a)(1). The form contained all of the applicable rights, as well as an advisement of what could happen to her based on her admissions. She initialed each of these advisements separately. In addition, she initialed and signed the portion of the form that stated: "I understand each right listed above. I knowingly, intelligently, voluntarily and expressly waive and give up each of the rights in order to make the admissions, and to take advantage of the promises made to me."

The form also contained the following clause that was signed by Veronique's attorney: "I am the attorney of record for the minor, I have explained each provision of this form to my client, and I am satisfied that my client understands each provision. I join in the admission(s)."

At the readiness hearing the court indicated that it had received the waiver form. It stated to Veronique: "[D]o you understand and give up all of the rights set forth on this waiver of rights form that you've signed and initialed, and do you understand the consequences—do you understand the consequences of making this admission?" Veronique replied, "Yes, sir."

The court asked Veronique: "And as to Count 2 of the petition which alleges a felony violation of Penal Code 245 (A)(1), which is a form of assault with a weapon, do you admit that?" Veronique replied, "Yes, sir." Counsel stipulated to a factual basis. The court stated: "I find proper notice, and the information in the advisal of rights form to be true. The minor understands and voluntarily waives the constitutional rights and understands the consequences of the allegations and admissions. There is a factual basis for the admission, which is freely and voluntarily made, is true, and falls under W & I 602." The matter was referred to the probation department.

California Rules of Court, rule 1487 provides in pertinent part:

"(a) [Petition read and explained (§ 700)] At the beginning of the jurisdiction hearing, the petition shall be read to those present. On request of the child, or the parent, guardian, or adult relative, the court shall explain the meaning and contents of the petition and the nature of the hearing, its procedures and possible consequences.

"(b) [Rights explained (§ 702.5)] After giving the advice required by rule 1412, the court shall advise those present of each of the following rights of the child:

"(1) The right to a hearing by the court on the issues raised by the petition;

"(2) The right to assert the privilege against self-incrimination;

"(3) The right to confront and to cross-examine any witness called to testify against the child; and

"(4) The right to use the process of the court to compel the attendance of witnesses on the child's behalf.

"(c) [Admission of allegations; prerequisites to acceptance] The court shall then inquire whether the child intends to admit or deny the allegations of the petition. If the child neither admits nor denies the allegations, the court shall state on the record that the child does not admit the allegations. If the child wishes to admit the allegations, the court shall 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 rights in subdivision (b).

"(d) [Consent of counsel — child must admit] Counsel for the child must consent to the admission, which shall be made by the child personally."

Veronique claims the juvenile court failed to find that she understood the nature of the allegations against her or that she understood and gave up her specific constitutional rights. She argues that her plea did not satisfy due process or the requirements of California Rules of Court, rule 1487. In particular she contends that the dialogue between the court and Veronique did not demonstrate that she actually understood her rights or the factual basis for her admission and the consequences of the admission, particularly in the context of her age and her mental challenges. Veronique points out that the court never asked her or her counsel whether it was true that counsel explained each provision in the form to her. She concludes that it cannot be said that the plea was voluntary and intelligent under all of the circumstances, including her age, her lack of experience or sophistication, and her mental and educational challenges. Because she denied guilt to the probation officer, she argues it is reasonably probable that she would not have admitted the charges if she understood the nature of the allegations.

"It is now well established law that juvenile court proceedings, where a minor may be adjudged a delinquent and subjected to detention ... `"must measure up to the essentials of due process...."' (In re Michael M. (1970) 11 Cal.App.3d 741, 743.) "When a criminal defendant chooses to plead guilty ..., both the United States Supreme Court and this court [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...