In re Manuel C.

Filed 3/22/07 In re Manuel C. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Following a contested jurisdictional/dispositional hearing, appellant Manuel C. was found to have violated his probation and was ordered to spend 80 hours in the juvenile court work program. Manuel argues that this finding must be reversed because the juvenile court failed to advise him of his constitutional rights before accepting his slow plea. We reject this argument because Manuel did not enter a slow plea. Although defense counsel stipulated to certain facts, she aggressively argued against a true finding on the probation violation allegation. The factual stipulation was part of the defense strategy and was not tantamount to pleading guilty. Accordingly, we will affirm.^[1]

FACTS

On February 24, 2005, Manuel admitted a misdemeanor burglary. Maximum confinement time was set at one year. Manuel was adjudged to be a ward of the court and placed on probation for a maximum period of three years. A 10:00 p.m. curfew was a probation condition.

On July 3, 2006, a petition was filed under Welfare and Institutions Code sections 602 and 777, alleging that Manuel tampered with a vehicle (count 1) and that he attempted to burglarize a vehicle (count 2).^[2] The petition also alleged that Manuel violated the terms of his probation by committing these offenses and by violating his curfew (count 3).

A contested jurisdictional and dispositional hearing was conducted on August 18, 2006. At the outset of the hearing, the prosecutor announced that the People were moving to dismiss counts 1 and 2. Furthermore, the prosecutor and defense counsel agreed to stipulate to a set of facts that occurred in this case. And we will submit the decision to the Court. The court asked, With argument? The prosecutor replied, With argument. Defense counsel confirmed the prosecutors statements.

The parties stipulated to the following facts: Manuel was out at 12:15 in the morning on June 1st, and the police stopped him. They saw him looking into some car windows. They thought it was suspicious behavior, and the police stopped him. Also, Manuels mother would indicate that [Manuel] had had [sic] permission to be at a friends house; that he had called her shortly before he was picked up to ask her to come and pick him up. She needed to take a shower first. So he decided to walk home. It was about -- his house was about three or four blocks from where he was picked up. Finally, Manuel was with three other minors, and all four of them were peering into different vehicles in the residential area when the police observed them. The incident occurred on the morning before Manuel was to graduate from high school.

The court dismissed counts 1 and 2 and accepted the factual stipulation.

Thereafter, defense counsel argued against a true finding on the probation violation allegation. She did not dispute the fact that this is a technical violation. [Manuel] was out past curfew. The question then becomes whether or not this should be found as a violation of [section] 777 (a) whether or not the previous disposition of the Court has been ineffective in his rehabilitation. And we would argue that it has not. That cant be found true. She continued, Manuel has been on probation for over a year and a half. He hasnt had any further contact with law enforcement. He hasnt been brought in for another probation violation. He hasnt had any further petitions filed. While the police thought that Manuel was engaging in suspicious behavior, there was no evidence that he had actually touched any of the cars or [did] anything to any of the cars that were on the street. Defense counsel concluded, So the question is whether or not the previous disposition of the Court has been ineffective in his rehabilitation. And I would argue that that just is not true. He graduated from high school. He will be 18 in less than a month. And so wed ask the Court to find that the probation violation is not true.

The prosecutor responded that defense counsel had made an interesting argument. However, in his view, section 777, subdivision (a)(2) only requires proof by a preponderance of the evidence that Manuel had, in fact, violated a term of his probation. The violation was established by the facts that Manuel and his friends were out at 12:15 a.m. and were peering into vehicles in a residential area.

The court made the following finding: [N]ot only has Manuel technically violated the terms of his probation, but hes also violated the spirit of those terms. Because one of the things that we want minors on probation not to be doing is to be out engaging in suspicious activity past the time of curfew.

Thereafter, the court accepted the probation officers recommendation (which was joined by the prosecutor) and ordered Manuel to serve 80 hours in the work program. Manuel was to find his own site and was to start working by September 1, 2006, and finish by November 15, 2006. Probation was continued for a period not to exceed three years. Maximum confinement time was set at one year, less one day for time served.

DISCUSSION

Manuel argues that the probation violation finding must be reversed because defense counsel entered a slow plea and he was not informed of his Boykin-Tahl rights. As we will explain, the argument fails because defense counsel did not enter a slow plea.

In People v. Sanchez (1995) 12 Cal.4th 1 (Sanchez), our Supreme Court explained that Boykin-Tahl applies only to pleas of guilty and submissions on the preliminary hearing transcript, or slow pleas, by virtue of which [defendant] surrenders one or more of the three specified rights. [Citation.] (Id. at p. 28.)

In People v. Tran (1984) 152 Cal.App.3d 680, the Court of Appeal defined the term slow plea as follows: It is an agreed-upon disposition of a criminal case via any one of a number of contrived procedures which does not require the defendant to admit guilt but results in a finding of guilt on an anticipated charge and, usually, for a promised punishment. (Id. at p. 683, fn. 2.) Sanchez elaborated: [A slow plea is] a submission of the guilt phase to the court on the basis of the preliminary hearing transcripts that is tantamount to a plea of guilty because guilt is apparent on the face of the transcripts and conviction is a foregone conclusion if no defense is offered. (Sanchez, supra, 12 Cal.4th at p. 28.)

An appellate court, in determining whether a submission is a slow plea, must assess the circumstances of the entire proceeding. (People v. Wright (1987) 43 Cal.3d 487, 496 (Wright).) If, after such an examination, it appears that the defendant advanced a substantial defense, the submission cannot be considered to be tantamount to a plea of guilty. Sometimes, a defendants best defense is weak. He may make a tactical decision to concede guilt as to one or more of several counts as part of an overall defense strategy. A submission under these circumstances is not a slow plea . (Sanchez, supra, 12 Cal.4th at pp. 29.) Sanchez and other cases acknowledge that deciding whether a submission is a slow plea is often difficult, and courts generally review such pleas based on defendants willingness to contest guilt during the court trial. (Sanchez, supra, 12 Cal.4th at p. 28; see also Wright, supra, 43 Cal.3d at p. 49; People v. Tran, supra, 152 Cal.3d at p. 683.) Sanchez set forth two non-exclusive circumstances in which a submission is notconsidered a slow plea: (1) the preliminary hearing involves substantial cross-examination of the prosecution witnesses and the presentation of defense evidence or (2) the facts revealed at the preliminary examination are essentially undisputed but counsel makes an argument to the court as to the legal significance to be accorded them. [Citation.] (Sanchez, supra, 12 Cal.4th at p. 28, emphasis added.)

In this instance, it is evident that defense counsels stipulation to facts showing that Manuel was out past his curfew with some other youths and that police were suspicious of his conduct of peering into cars in a residential neighborhood was part of the defense strategy and did not amount to a slow plea.^[3] There is no evidence in the record indicating that there was an agreed upon outcome between the parties concerning the probation violation allegation; this allegation was contested by the parties. Defense counsel strongly argued against a finding of a probation violation. Defense counsel maintained that, although Manuel had committed a technical probation violation by being out past his curfew, the court should not find that Manuel violated his parole because the courts prior disposition had been effective in appellants rehabilitation. Defense counsel argued that the effectiveness was demonstrated by the facts that Manuel had been on probation for a year and a half without incident, was graduating from high school and was just two days short of his 18th birthday when he was detained. Defense counsel also argued that the stipulated facts showed that appellant was simply walking home with friends on the night of his graduation; there was no evidence that Manuel had engaged in any inherently wrongful behavior. Counsel further agreed it was only the police who characterized his conduct as suspicious.

Manuel acknowledges that his attorney argued against a true finding on the probation violation allegation. Yet, he asserts that the argument is not entitled to any significance because it is legally erroneous and is analogous to a request for a dismissal in the interests of justice. We disagree. As recognized in Sanchez, [s]ometimes, a defendants best defense is weak. (Sanchez, supra, 12 Cal.4th at p. 29.) Here, it was virtually impossible to controvert the fact that Manuel was out past his curfew. Defense counsel was forced to develop a strategy that accounted for this reality. Although she stipulated to facts establishing a technical probation violation, she contested the sufficiency of the evidence in one respect: Manuel had a legitimate reason to be out past curfew; he was merely walking home because his mother wanted to take a shower before picking him. Furthermore, defense counsel argued that the prior disposition was effective and therefore the probation violation allegation should not be found true. In sum, defense counsel presented a creative and innovative defense--that technical probation violations can be excused. Although the strategy proved unsuccessful, it was not tantamount to a slow plea. (Sanchez, supra, 12 Cal.4th at pp. 28-30 [submission on preliminary hearing transcripts was not slow plea]; Wright, supra, 43 Cal.3d at pp. 495-499 [partial submission on preliminary hearing transcript was not a slow plea].)

DISPOSITION

The judgment is affirmed.

_________________________

Levy, J.

WE CONCUR:

_______________________________

Harris, Acting P.J.

_______________________________

Gomes, J.

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^[1] This conclusion obviates any need to determine whether a juvenile court is required to advise minors of their Boykin-Tahl rights. (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.)

^[2] Unless otherwise specified, all statutory references are to the Welfare and Institutions Code.

^[3] The parties assume that the stipulation of facts that occurred in this instance is equivalent to a submission on a preliminary hearing transcript. For purposes of this discussion only, we accept this assumption.