Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PDL20050196.
BLEASE, ACTING P. J.
This case consolidates the appeals from two judgments involving the minor, R. M.
Between April and May 2006, the minor R. M., then 12 and one-half-years old, forced then 11-year old A. M. to repeatedly orally copulate him. He threatened to have A. M. killed if he told anyone about the sexual molestation. The minor appeals the adjudication finding he committed forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)), a forcible lewd act upon a child under 14 years of age (Pen. Code, § 288, subd. (b)(1)) and false imprisonment by violence. (Pen. Code, § 236.) On appeal, he contends the judgment must be reversed because the court failed to find he knew the wrongfulness of the sexual offenses. We shall affirm the judgment as to these counts.
In subsequent proceedings, the court found that the minor resisted arrest (Pen. Code, § 148, subd. (a)(1)) and committed a misdemeanor assault. (Pen. Code, § 245, subd. (a)(1).) The minor appeals these adjudications contending the court abused its discretion because it failed to adduce a factual basis for the offenses and because it failed to determine whether counsel consented to the admissions.
We shall find that counsel did consent to the admissions but that the court failed to adduce a factual basis for the admissions. We shall reverse the judgment and remand the case to the trial court for further proceedings. Lastly, the minor contends the court erred in calculating his maximum time of confinement. The People properly concede this point. We accept that concession.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Prior to the petitions at issue here, the minor had an extensive record of juvenile adjudications including battery and sexually molesting a child. In 2005, the minor admitted committing a battery, resisting arrest and making criminal threats. As a result of the admission, the minor was placed on probation for 18 months.
In 2006, a probation violation was filed, alleging the minor had tested positive for marijuana and was suspended from school. The minor admitted the violations, was adjudged a ward of the court under Welfare and Institutions Code section 725, subdivision (b). He was placed on probation for 18 months.
Further undesignated statutory references are to the Welfare and Institutions Code.
In February 2007, the minor admitted to felony vandalism and violating his probation. He was placed on probation for 46 months and committed to the control of the probation department for placement in a group home.
In June 2007, the minor admitted committing a lewd act upon a child under 14. The minor’s seven-year old cousin alleged he had molested her by putting his hand down her pants. He was placed on probation for 12 months, committed to a group home and ordered to serve 255 days in the juvenile hall.
The minor was terminated from the group home in October 2007 for failure to comply with the rules of the facility and for exhibiting defiant behavior towards a staff member. A probation violation petition was filed and the minor was continued in placement.
In March 2008, the minor admitted another violation of probation due to his refusal to comply with the rules of the program, destructive behavior and assaultive behavior towards staff.
In April 2008, a petition was filed alleging that between April and August 2006, the minor committed forcible oral copulation against A. M. (Pen. Code, § 288a, subd. (c)(2)), a forcible lewd act upon A. M., a child under 14 years of age (Pen. Code, § 288, subd. (b)(1)) and false imprisonment by violence upon A. M. (Pen. Code, § 236.) He denied the allegations and a jurisdictional hearing was held.
At the hearing, A. M. testified. At the time of the molestations, the minor was 12 years old and A. M. was 11 years old. They were friends and played together, including playing video games in the minor’s bedroom. The minor was a few inches taller than A. M. Usually an adult was in the home and sometimes A. M.’s sister was also there. Between five and seven times, the minor shoved a crutch against the door to prevent it from being opened. He pulled down his pants and underwear and forced his erect penis into A. M.’s mouth. The minor threatened he would hit A. M. if he did not orally copulate the minor or if he told anyone. Sometimes afterwards, the minor would force A. M. to watch pornographic videos. The minor would not remove the crutch from the door and would not allow A. M. to leave the room for a few hours. When A. M.’s sister knocked on the door, he told her to go away. When A. M. attempted to remove the crutch from the door, the minor beat him. Both the minor’s grandmother and A. M.’s sister had found the door to the minor’s room closed and locked with the crutch.
The minor had beaten A. M. most of his life. One time he tried to refuse to orally copulate the minor and the minor punched him in the back, stomach and arms, leaving bruises. The minor told A. M. he was in a gang and if A. M told anyone about the assaults, he would have the gang kill A. M. A. M. continued to visit the minor because he thought nothing would happen. But it did. When he finally realized what was happening, he stopped going to the minor’s house. He had not been there since mid-May 2006.
A. M. did not tell anyone about the molestations because he the minor had threatened to kill him. A. M.’s mother sometimes noticed he had bruises and would act withdrawn and agitated after returning from the minor’s.
In mid-May 2006 A. M. told his mother he did not want to go to the minor’s home anymore because the minor had problems. When the minor was committed to juvenile hall and a group home in the fall of 2006, A. M. felt safer reporting what the minor had done. In November 2006, A. M’s sister reported the minor had sexually assaulted her. A. M. reported the assaults in March 2008, after he learned that his sister had also been assaulted.
Detective Petersen interviewed the minor at juvenile hall. The minor denied having sexual conduct with A. M., although he admitted having shown him pornography. He also admitted to inappropriate behavior with A. M.’s sister. As to the assertion of sexual molestation of A. M’s sister, the minor stated “I shouldn’t have done it. I knew it was wrong.”
At trial the minor again denied locking A. M. in the bedroom, forcing A. M. to orally copulate him or inappropriately touching A. M. He admitted showing A. M. pornography and admitted locking the door with a crutch when he and A. M. were playing video games. He admitted molesting A. M.’s sister between August and October 2006.
The court found the allegations of the petition true beyond a reasonable doubt. The court found A. M. very credible and believable, and his testimony specific and detailed. The court found there was no basis to argue the acts were consensual and that the delay in reporting was understandable, given the threats involved.
A petition was filed on July 30, 2008, alleging the minor had resisted arrest and violated his probation. (Pen. Code, § 148, subd. (a).) The next day a petition was filed alleging defendant had committed a battery with serious bodily injury. (Pen. Code, § 243, subd. (d).) The battery allegation was reduced to a misdemeanor assault. (Pen. Code, § 245, subd. (a)(1).) The minor admitted the allegations in both petitions and was placed on probation. The court calculated the minor’s maximum time of confinement as 15 years and four months.
DISCUSSION
I
The minor contends the judgment involving forcible oral copulation must be reversed because the court failed to find he knew the wrongfulness of his sexual offenses against and false imprisonment of A. M. The minor acknowledges such a finding can be implied, but contends there is not sufficient evidence to support such an implied finding. We disagree.
A child under the age of 14 years may not be found to have committed criminal offenses “unless the prosecution proves the child understood the wrongfulness of his conduct.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 297.) “‘[S]ection 26 articulates a presumption that a minor under the age of 14 is incapable of committing a crime. (Pen. Code, § 26, subd. One.) To defeat the presumption, the People must show by “clear proof” that at the time the minor committed the charged act, he or she knew of its wrongfulness. This provision applies to proceedings under Welfare and Institutions Code section 602....’ [Citation.]” (In re Marven C. (1995) 33 Cal.App.4th 482, 486.) Only those minors “‘under 14 who--as demonstrated by their age, experience, conduct, and knowledge--clearly appreciate the wrongfulness of their conduct rightly may be made wards of the court in our juvenile justice system. [Citation.]’ [Citation.]” (Ibid.)
The “clear proof” standard articulated in Penal Code section 26 requires “‘that the People... prove by clear and convincing evidence that the minor appreciated the wrongfulness of the charged conduct at the time it was committed.’ [Citation.]” (In re Marven C., supra, 33 Cal.App.4th at p. 486.) “Although a minor's knowledge of wrongfulness may not be inferred from the commission of the act itself, ‘the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment’ may be considered. (In re Tony C. (1978) 21 Cal.3d 888, 900[].) Moreover, a minor's ‘age is a basic and important consideration [citation], and, as recognized by the common law, it is only reasonable to expect that generally the older a child gets and the closer [he] approaches the age of 14, the more likely it is that [he] appreciates the wrongfulness of [his] acts.’ (In re Cindy E. (1978) 83 Cal.App.3d 393, 399[].)” (People v. Lewis (2001) 26 Cal.4th 334, 378.) “Reliance on circumstantial evidence is often inevitable when, as here, the issue is a state of mind such as knowledge.” (In re Tony C., supra, 21 Cal.3d at p. 900.)
“On appeal from the true findings, we must affirm an implied finding that the juvenile understood the wrongfulness of his conduct if the implied finding is supported by substantial evidence. [Citations.] [¶] When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. [Citations.] The trier of fact, not the appellate court, must be convinced of the defendant's guilt, and if the circumstances and reasonable inferences justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.] This standard of review applies with equal force to claims that the evidence does not support the determination that a juvenile understood the wrongfulness of his conduct.” (In re Jerry M., supra, 59 Cal.App.4th at pp. 297-298, fn. omitted.) We find in this case, there was ample evidence the minor knew the wrongfulness of his acts.
Here, the minor was 12 and one-half-years old when he assaulted A. M. While he was not so close to 14 years old, he was not so young as to be inherently incapable of understanding the wrongful nature of his acts. (See In re James B. (2003) 109 Cal.App.4th 862, 872 [minor, who was 12 years 10 months old, understood wrongfulness].) Defendant had also sexually molested A. M’s sister and stated “I shouldn’t have done it. I knew it was wrong.” That molestation occurred just months after the molestation of A. M., but was adjudicated before the molestation of A. M. It was reasonable for the court to infer if the minor understood the wrongfulness of his acts against A. M.’s sister, he understood it as to A. M. Furthermore, the minor’s own conduct during these offenses indicates he knew what he was doing was wrong. The minor propped a crutch against the door, locking it to ensure no one would come in, prevented A. M. from leaving the room for hours after the assaults, beating A. M. when he tried to remove the crutch, and telling A. M.’s sister to go away when she knocked on the door. The minor also threatened to have A. M. killed by the minor’s gang if he told anyone and beat A. M. when he refused to orally copulate him. This conduct shows “an awareness that ‘he had to accomplish his intended deed in private in order to minimize the risk of detection and punishment.’ [Citation.]” (In re Paul C. (1990) 221 Cal.App.3d 43, 53.) On this record, there is substantial evidence to support the trial court’s implied finding that the minor understood the wrongfulness of his acts in sexually molesting A. M. and falsely imprisoning him.
II
Defendant contends the trial court abused its discretion in finding he committed the misdemeanors of resisting arrest and assault because it failed to adduce a factual basis for the offenses.
The People contend Penal Code section 1192.5 does not apply to juvenile cases and to the extent it does, the minor suffered no prejudice because the court implicitly found an adequate factual basis for the plea. On the record before us, we cannot agree.
Rule 5.778 of the California Rules of Court (Rule) governs the process whereby a minor may admit, or enter a no contest plea, to allegations set forth in a petition pursuant to section 602 of the Welfare and Institutions Code. Rule 5.778(f)(6) requires that the court must make a finding that “There is a factual basis for the admission or plea of no contest[.]” Rule 5.778 is analogous to section 1192.5 of the Penal Code which governs the taking of a plea in an adult criminal case. (See In re Michael B. (1980) 28 Cal.3d 548, 554-560 [analogizing portions of Welfare and Institutions Code and Penal Code and recognizing the requirement for a factual basis in a plea bargain or admission in a juvenile proceeding].) “‘A minor's admission of a juvenile court petition is analogous [to a guilty plea], for it constitutes an assent to all facts essential to a finding that the minor is a person described in section 602.’ (In re John B. (1989) 215 Cal.App.3d 477, 484[]; In re Patterson (1962) 58 Cal.2d 848, 853[] [admission by minor is equivalent to plea of guilty].)” (Ricki J. v. Superior Court (2005) 128 Cal.App.4th 783, 791.)
“Section 1192.5 requires a trial court to determine by independent inquiry, before accepting a plea of guilty or nolo contendere 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.”’ [Citations.]” (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576.)
“The trial court's finding that there is a factual basis for the plea is reviewed for an abuse of discretion. (People v. Holmes (2004) 32 Cal.4th 432, 442-443[] (Holmes).) If there is error, it will be deemed harmless if the record supports a finding of a factual basis for the conditional plea. (Id. at p. 443.)” (People v. Willard (2007) 154 Cal.App.4th 1329, 1333, (Willard).)
“‘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. [Citation.] Under either approach, a bare statement by the judge that a factual basis exists, without the above inquiry, is inadequate.’ (Holmes, supra, 32 Cal.4th at p. 436, italics added.) ‘A reference to a complaint containing a factual basis for each essential element of the crime will be sufficient under section 1192.5 to establish the factual basis for the plea.’ (Id. at p. 440, italics added.)” (Willard, supra, 154 Cal.App.4th at p. 1333.)
A review of the record shows no factual basis for the minor’s plea. The court stated: “To the amended charges in the F petition that on or about July 15th of this year you committed the crime of assault in violation of Penal Code Section 245(a), a misdemeanor, on Jason Dyer, you admit that charge?” The minor answered, “Yes.” The court then inquired, “And to the petition, the petition filed July 30th, which alleges on or about May 23rd of this year you resisted, delayed or obstructed the juvenile hall correctional officers in the performance of their duties in violation of Penal Code Section 148(a)(1), a misdemeanor; do you admit that charge?” The minor answered, “Yes.”
The People argue that the reference to the petitions was a sufficient factual basis to support the plea. If these petitions had contained facts supporting the elements of the offenses beyond the elements of the offenses, the reference to them might well have been sufficient. However, the petitions contain no more than the elements of the offenses alleged against the minor. While the extent of the inquiry is left to the discretion of the court, acceptable means of establishing a factual basis include asking the accused to describe the conduct giving rise to the charge, asking the attorneys to recite specific information or referencing specific portions of the record that provide a factual basis for the plea. (People v. Wilkerson, supra, 6 Cal.App.4th at pp. 1576-1577.) None of those procedures was followed here. The mere admission of a criminal charge does not establish the factual basis for the charge. To conclude otherwise would eliminate the requirement for the factual basis.
Here, as in Willard, there are no documents which contain factual support for the allegations in the petitions. The only document relative to these misdemeanor charges are the petitions themselves. The petitions allege the date of the conduct and the names of the defendant and the victim of the assault. The remaining allegations of the petitions are in the language of the statute. “The statutory language sets forth the elements of the offense, not facts. (See Holmes, supra, 32 Cal.4th at p. 440.) This is not enough to satisfy the purpose of the factual basis inquiry, to corroborate what defendant had already admitted by his plea.” (Willard, supra, 154 Cal.App.4th at p. 1335.) Accordingly, the court erred in accepting the minor’s admission without an adequate factual basis.
III
Defendant also contends the trial court abused its discretion by finding he had committed the misdemeanor of resisting arrest and assault, because there was no finding counsel consented to the admissions. We disagree.
Section 657, subdivision (b) provides: “At the detention hearing, or any time thereafter, a minor who is alleged to come within the provisions of Section 601 or 602, may, with the consent of counsel, admit in court the allegations of the petition and waive the jurisdictional hearing.” Rule 5.778(d) provides: “Counsel for the child must consent to the admission, which must be made by the child personally.” There is no requirement that there be an express finding of counsel’s consent on the record.
Further, counsel was at the hearing. The court inquired whether it was agreeable that the minor would admit the two misdemeanor charges. Defense counsel responded, “Yes, your Honor.” This is sufficient to establish counsel consent to the minor’s admission to the misdemeanor offenses of resisting arrest and assault.
IV
The minor contends the trial court improperly calculated his maximum time of confinement. It appears the minor is actually pointing out a error in addition. The probation report indicated the minor’s maximum time of confinement for all of his petitions, excluding the misdemeanor resisting arrest and assault, at 14 years and six months. The minor does not dispute that calculation. The court then indicated the two additional misdemeanors would add eight months to the minor’s maximum time of confinement. The minor does not dispute that calculation. Then the court apparently made a mathematical error and calculated the incorrect maximum term of confinement at 15 years and four months, rather than 15 years and two months. The People properly concede this error.
DISPOSITION
The judgment as to the adjudications for forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)), forcible lewd act upon a child under 14 years of age (Pen. Code, § 288, subd. (b)(1)) and false imprisonment by violence (Pen. Code, § 236) are affirmed. The judgment as to the misdemeanor resisting arrest and assault is reversed and the matter is remanded to the trial court. The trial court shall give the prosecution, as soon as the matter can be heard, an opportunity to establish a factual basis for the minor’s plea to resisting arrest and assault. If the prosecution does so, the trial court shall reenter the judgment and prepare and distribute a new Minute Order. If the prosecution does not establish a factual basis for the plea, the court shall allow the minor the opportunity to withdraw his admission and hold further proceedings. (Willard, supra, 154 Cal.App.4th at pp. 1335-1336.) The trial court shall correct the maximum time of confinement as is appropriate following the disposition of the misdemeanor offenses.
We concur: NICHOLSON, J. CANTIL-SAKAUYE, J.