James H., In re

• Decision Date: 19 March 1985
• Docket Number: No. C,C
• Citation: 165 Cal.App.3d 911,212 Cal.Rptr. 61
• Court: California Court of Appeals Court of Appeals
• Parties: In re JAMES H., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. JAMES H., a Minor, Defendant and Appellant. E000714 (Formeriv. 33302).

Page 61

212 Cal.Rptr. 61

165 Cal.App.3d 911

In re JAMES H., a Person Coming Under the Juvenile Court Law.

The PEOPLE of the State of California, Plaintiff and Respondent, v. JAMES H., a Minor, Defendant and Appellant.

E000714 (Former No. Civ. 33302).

Court of Appeal, Fourth District, Division 2, California.

March 19, 1985.

[165 Cal.App.3d 915] Gary D. Baughman, Redlands, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Michael D. Wellington and Pat Zaharopoulos, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

MORRIS, Presiding Justice.

James H., a 16-year-old minor, admitted as true the allegations in a petition which charged him with burglary. (Pen.Code, § 459.) Minor was committed to the California Youth Authority for a maximum of six years.

On appeal minor contends that the trial court erred in accepting his admission to the burglary charge without obtaining a knowing and intelligent waiver of his constitutional rights, and in not securing his personal waiver of his right to have the dispositional hearing before the same judge to whom he admitted the offense. Minor also contends that it was error to commit him to the California Youth Authority. We find no error.

FACTS

Minor burglarized a residence in Palmdale, California. Shortly thereafter he was taken into custody by the Los Angeles County Sheriff.

A petition filed in the Los Angeles Superior Court pursuant to section 602 of the Welfare and Institutions Code charged minor with one count of burglary, a felony. (Pen.Code, § 459.) Minor admitted the allegations of the petition in the juvenile proceeding before the Los Angeles court.

Being a resident of San Bernardino, minor was transferred to San Bernardino County for the dispositional hearing. The San Bernardino Superior Court committed minor to the California Youth Authority for a maximum of six years.

This appeal followed.

DISCUSSION

I.

Minor contends that his admission of the charge of burglary was unlawful because the juvenile court failed to obtain a knowing and intelligent waiver of his constitutional rights. We disagree.

Minor cites two leading cases in support of his contention. In Boykin v. Alabama (1969) 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, the United States Supreme Court held that it could not be assumed from a silent record that the constitutional rights necessarily forfeited by a guilty plea to a felony charge had been freely and intelligently waived. In In re Tahl (1969) 1 Cal.3d 122, 131-132, 81 Cal.Rptr. 577, 460 P.2d 449, the California Supreme Court interpreted Boykin to mean that a free and intelligent waiver by the accused of the constitutional rights enumerated in Boykin could not be inferred. The Boykin-Tahl holdings have been held extended to juvenile proceedings. (In re Regina N. (1981) 117 Cal.App.3d 577, 583-584, 172 Cal.Rptr. 810; In re Michael M. (1970) 11 Cal.App.3d 741, 743-744, 96 Cal.Rptr. 887; Cal.Rules of Court, rule 1354.)

Thus, minor contends specifically that the trial court erred in not adequately explaining minor's "right to remain silent," and in not obtaining a separate personal waiver of the right to remain silent and to confront his accusers. No authority offered by minor, however, specifically addresses these contentions.

We hold that the trial court record in the instant case sufficiently demonstrates a free and intelligent waiver by minor of his right to remain silent and to confront his accusers. The Constitution "... does not require the recitation of a formula by rote or the spelling out of every detail by the trial court. It does mean that the record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, ..." ¹ (In re Tahl, supra, 1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.)

Here the trial judge told minor that he had a "right to remain silent." This was an adequate substitution for and explanation of the "right against self-incrimination." The theory of defendant's counsel, that because there was no explanation of the "right to remain silent" the minor could have believed that he had a right not to question witnesses at trial because that is what the attorney is for, is unpersuasive. The "right to remain silent" has resounded through the consciousness of virtually all Americans since Miranda v. State of Arizona (1966) 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694; the "right not to question witnesses at trial" is newly created by defense counsel for purposes of this appeal. In addition, this minor, with his significant juvenile record, had extensive personal exposure to law enforcement personnel and judicial proceedings. (Cf. Winton v. Municipal Court (1975) 48 Cal.App.3d 228, 242, 121 Cal.Rptr. 561.) Finally, immediately after being informed of his right to remain silent, minor, represented by counsel, expressly told the court that he understood his rights. This same colloquy has been upheld. (People v. Salazar (1979) 96 Cal.App.3d Supp. 8, Supp. 11, fn. 1, 157 Cal.Rptr. 834.)

We also hold that the trial court did not err in obtaining a single personal waiver by minor of the right to remain silent and to confront his accusers, for many of the same reasons articulated above. Although there is a legitimate constitutional interest in having a record that demonstrates the minor made an intelligent and knowing waiver of his rights, that interest does not justify burdening the trial court with unnecessary procedural details. (See In re Tahl, supra, 1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.) In the instant case the two constitutional rights at issue were clearly delineated on the record by the trial court, the waiver was found to be knowing and intelligent by the court, and minor was a sophisticated juvenile offender represented by counsel. Prior case law supports our determination that it was unnecessary for the trial court to obtain a separate personal waiver for each of the two constitutional rights minor relinquished upon admitting the offense charged. (See People v. Salazar, supra, 96 Cal.App.3d at Supp. pp. 11-12, fn. 1, 157 Cal.Rptr. 834.)

II. Arbuckle Right

Minor contends that the trial court erred in not securing his personal waiver of his Arbuckle right to have his dispositional hearing before the same judge who accepted his admission to the burglary charge. We find no error.

People v. Arbuckle (1978) 22 Cal.3d 749, 756-757, 150 Cal.Rptr. 778, 587 P.2d 220, states that: "As a general principle, moreover, whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge. Because of the range of dispositions available to a sentencing judge, the propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant's decision to enter a guilty plea. [Citations.]" Arbuckle has been extended to juvenile proceedings. (In re Mark L. (1983) 34 Cal.3d 171, 177, 193 Cal.Rptr. 165, 666 P.2d 22; In re Ray O. (1979) 97 Cal.App.3d 136, 139, 158 Cal.Rptr. 550.) Under Arbuckle and its progeny, if error is found, minor is entitled to a new dispositional hearing before the judge who accepted his admission or plea, or if that is administratively impossible, then minor should be permitted to withdraw his admission or plea. (Arbuckle, supra, at p. 757, 150 Cal.Rptr. 778, 587 P.2d 220; In re Mark L., supra, at p. 180, fn. 7, 193 Cal.Rptr. 165, 666 P.2d 22.)

Failure to Contemporaneously Object

At the threshold level, minor failed to preserve his Arbuckle right for appeal by failing to object before the trial court. Generally, it is a well-established rule that failure to object in the trial court precludes one from raising the point for the first time on appeal. (See People v. Hillery (1974) 10 Cal.3d 897, 899-900, 112 Cal.Rptr. 524, 519 P.2d 572; Pen.Code, § 1259.) This contemporaneous objection rule is not new to the juvenile court arena; for example, in an analogous situation, "[u]nless the minor objects, a judge or referee who has conducted a fitness hearing may participate in any subsequent contested jurisdiction hearing relating to the same offense" (Cal.Rules of Court, rule 1348(j); see Breed v. Jones (1975) 421 U.S. 519, 539, fn. 21, 95 S.Ct. 1779, 1790 fn. 21, 44 L.Ed.2d 346), and the issue is waived for appeal (In re James D. (1981) 116 Cal.App.3d 810, 816-819, 172 Cal.Rptr. 321). Indeed, "... even constitutional rights, including those of a minor in the area of juvenile court procedure, will ordinarily be waived by silence, i.e., by their nonassertion." (Id., at p. 817, 172 Cal.Rptr. 321; see Donald L. v. Superior Court (1972) 7 Cal.3d 592, 600, 102 Cal.Rptr. 850, 498 P.2d 1098 [right to counsel], disapproved on other grounds in In re Winnetka V. (1980) 28 Cal.3d 587, 596, 169 Cal.Rptr. 713, 620 P.2d 163.)

The requirement of a contemporaneous objection has been applied to the Arbuckle right. To argue Arbuckle on appeal when improperly assigned to another judge for disposition, a minor must have moved for reassignment to the judge to whom his admission was given, or have objected to the new judge. (People v. West (1980) 107 Cal.App.3d 987, 992, 165 Cal.Rptr 24; see People v. DeJesus (1980) 110 Cal.App.3d 413, 419, 168 Cal.Rptr. 8; In re Ray O., supra, 97 Cal.App.3d at pp. 139-140, fn. 2, 158 Cal.Rptr. 550.) "[H]e does not have the option of taking his chances before the different judge and, if the result is unfavorable, then demand the original judge." (People v. West, supra.)

There is an exception to the waiver of Arbuckle on appeal for the failure to make a contemporaneous objection. People v. Rosaia (1984) 157 Cal.App.3d 832, 840, 203 Cal.Rptr. 856, holds that: "Nevertheless, fairness dictates that before accepting silence or acquiescence in sentencing by a different...