1 Filed 9/25/13 In re C.F. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

In re C.F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,

v. C.F., Defendant and Appellant. E056937 (Super.Ct.No. J244512) OPINION

APPEAL from the Superior Court of San Bernardino Count y. Barbara A. Buchholz, Judge. Reve rsed with directions. David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant.2 Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, and A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys Ge neral, for Plaintiff and Respondent. Defendant and appe llant, C.F. (Minor), touched hi s two-year-old stepsister’s vagina with his hand and his erect penis. He admitted to committing a lewd and lascivious act. He was ordered into out- of-home placement and placed on formal probation on various terms and conditions. Minor now claims on appeal as follows: 1. The trial court prejudicially erred in failing to advise him of his constitutional rights in taking his admission, and therefor e his plea was not kno wingly and intelligently made. 2. The juvenile court abused its discreti on in ordering that Minor be put into outof-home placement. 3. The juvenile court failed to make th e appropriate findings pursuant to Welfare and Institutions Code section 7 26, subdivisions (a) and (d). 4. The probation conditions that he not possess any dangerous or deadly weapons, not associate with persons under the age of 14 years, and not possess obscene material were unconstitutionally broad and vague. We reverse the judgment.3 I FACTUAL 1 AND PROCEDURAL BACKGROUND On June 1, 2012, Minor was visiting his fa ther and stepmother at their home. His stepmother entered the bedroom of her two-ye ar-old daughter and found Minor straddling her. Minor admitted to her that he touched the baby’s vagina with his hand and his erect penis. Her vagina wa s a little red and wet. On June 5, 2012, a Welfare and Institu tions Code section 602 petition was filed against 13-year-old Minor for a felony viol ation of Penal Code section 288, subdivision (a). On June 20, 2012, Minor admitted the ch arge. Minor’s mother and stepfather were ordered to find a suitable relative for placemen t of Minor but were unsuccessful. After a hearing regarding proper placem ent, Minor was ordered into out-of-home placement and placed on probation under various terms and conditions.
II FAILURE TO ADVISE MINOR OF HIS CONSTITUTIONAL RIGHTS Minor contends the trial court did not pr operly advise him of his constitutional rights to a court trial, to confront witnesses, and his right against self-incrimination when taking his admission to the viola tion of Penal Code s ection 288. He insists that based on the totality of the circumstan ces, the record does not sup port that he knowingly and intelligently waived his rights.

1 The facts are derived from the probation report.4 A. Additional Fact ual Background On June 20, 2012, Minor appeared for a pretrial. Each of the parties announced their appearances. The trial court asked Mino r’s counsel if there wa s a resolution of the matter. Minor’s counsel stated that Minor would admit the charge. The following exch anged occurred: “[THE COURT:] [Minor], turning to you I need to ask if you had enough time today to speak with your attorney and as k her any questions th at you might have? “THE MINOR: Yes, sir. “THE COURT: All right. [¶] Also, has anyone threatened yo u or forced you to make an admission? “THE MINOR: No, sir. “THE COURT: All right. [¶] Has anyo ne made you any prom ises so you would make an admission today? “THE MINOR: No, sir. “THE COURT: All right. Thank you. [¶ ] And [Minor], because of your age I need to ask you, do you understand th e difference between right and wrong? “THE MINOR: Yes, sir. “THE COURT: All right. [¶] Is it wrong to touch someone inappropriately without their permission? “THE MINOR: Wait, can you say that question one more time?5 “THE COURT: Sure. [¶] Is it wr ong for you to sexually touch someone inappropriately without their permission? “THE MINOR: Yes, sir. “THE COURT: Can you give me another example of something that is wrong or illegal to do? “THE MINOR: Fighting? “THE COURT: Fighting is a good example, yes. [¶] Can you also give me an example of something g ood or right to do? “THE MINOR: Just following the law. “THE COURT: Okay. That’s good enou gh. [¶] [Minor], I do see that you understand the difference betw een right and wrong so I will accept an admission from you with respect to the pending charge. [¶] If you would be good enough to answer my next question with a yes or no response if you would. [¶] Do you admit on or about June 1st, 2012, in the above named judicial distri ct that you did commit the crime of lewd act upon a child in violation of Penal Code Section 288 as a felony? “THE MINOR: Yes, sir. “THE COURT: All right. “[DEFENSE COUNSEL]: Join. “[PROSECUTOR]: Accept. “THE COURT: Court finds that Couns el has consented and joined in the admission on behalf of the [M]inor. [¶] The district attorney is satisfied with the6 admission and notice has been gi ven as required by law. [¶] The information on the petition is correct as to [Minor]’s date of birt h and county of residenc e. [¶] The [M]inor knowingly and intelligently waiv ed his right to a hearing on the issues presented as well as his Constitutional Rights. [¶] The [M]i nor understands the nature of the conduct alleged in the petition as well as consequences of the admission. The admission has been made freely and voluntarily. There’s a factual basis for the admission. The allegations of the petition will be deemed true as charged in Count I.”
B. Analysis A criminal defendant’s plea of guilty am ounts to a waiver of three constitutional rights: (1) the privilege against self-incrimina tion; (2) the right to a trial by jury; and (3) the right to confront one’s accu sers. Accordingly, the trial court must advise a defendant of these rights and obtain his or her waiver of each right before taking such a plea. ( Boykin v. Alabama (1969) 395 U.S. 238, 243; In re Tahl (1969) 1 Ca l.3d 122, 132 (collectively, Boykin-Tahl ).) “Proper advisement and waivers of these rights in the record establish a defendant ’s voluntary and intelligent ad mission” of the charge. ( People v. Mosby (2004) 33 Cal.4th 353, 356 ( Mosby ).) “The Boykin-Tahl protections afforded an accused, other than the right of trial by jury, are available to juveniles charged pursuant to the Juvenile Court Law, as proceedings thereunder may result in a subs tantial deprivation of liberty analogous to incarceration for crime. [Citation.] The absence of a knowledgeable waiver of constitutional rights before entering a guilty plea or, in the case of juvenile court7 proceedings, the admission of juri sdictional facts constitutes gr ounds for relief . . . .” ( In re Ronald E. (1977) 19 Cal.3d 315, 321, ab rogated on other grounds in People v. Howard (1992) 1 Cal.4th 1132, 1174-1178.) Here, the colloquy between the juvenile co urt and Minor establishes that he was not advised of his constitutional rights. Alt hough the juvenile court asked if Minor had been coerced into entering his admission, an d also determined whether he knew right from wrong, at no time did the juvenile court ask for a waiver of his Boykin-Tahl rights. Moreover, there was no written plea agr eement signed by Minor containing the appropriate advisements. “[I]f the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of ‘the entire proceeding’ to assess whether the defendant’s admission . . . was intelligent an d voluntary in light of the totality of circumstances. [Citation.]” ( Mosby, supra, 33 Cal.4th at p. 361.) Any error in accepting an admission will be deemed ha rmless if the record affirmatively shows that it was voluntary and intelligent under the to tality of the circumstances. ( People v. Howard,

supra, 1 Cal.4th at pp. 1175-1178.)
In Mosby, supra, 33 Cal.4th 353, the defendant was given incomplete Boykin-Tahl advisements in that he was not advised of hi s right to remain silent and to confront witnesses against him. ( Mosby, supra, at pp. 357-358, 360.) On appeal, the defendant contended that the trial court’s incomplete a dvisement of rights rendered his admission of a prior conviction invalid. However, the Calif ornia Supreme Court pointed out that the8 defendant had just sat through an entire jury trial. Applyi ng the totality of circumstances test, the Mosby court concluded th at the “defendant voluntar ily and intelligently admitted his prior conviction despite be ing advised of and having waived only his right to jury trial.” ( Id. at pp. 364-365, fn. omitted.) “‘[H]e knew he did not have to admit [the prior conviction] but could have had a jury or court trial, had ju st participated in a jury trial where he had confronted witnesses and remain ed silent, and had experience in pleading guilty in the past, namely, the very conviction he was now admitting.’” ( Id. at p. 365.) Although Mosby was in the context of a defendant’s admission of a prior conviction, our Supreme Court has assumed that the same tota lity of the circumstances test applies “on direct appeal from a guilty plea to a substantive offense . . . .” ( People v. Allen (1999) 21 Cal.4th 424, 439, fn. 4.) The situation here is not compar able to the one presented in Mosby . Minor had no previous convictions and no ex perience in court. He wa s a 13-year-old boy facing his first criminal conviction. A lthough Minor had apparently discussed the matter with his counsel, there is nothing in the record to support that his counsel advised him of his constitutional rights. Moreover, the fact that the trial court stated on the record that Minor had waived his constitutional rights appear s to be merely a recitation of a familiar statement made by the juvenile court in taki ng admissions, and is not based on an actual, on-the-record waiver by Minor.9 The People argue that under the tota lity of the circumstances the record demonstrates a voluntary and intelligent decisi on to admit the allegati on. They refer to the clerk’s transcript, which states: “Court informs the [M]inor of constitutional rights to confrontation and against self incriminati on, the nature of the offense and possible consequences of admission right to compel the attendance of witnesses.” The People contend that based on the minute order, there appears to be proceedings that were not transcribed during which the juvenile court properly advised Minor. Where a discrepancy exists between the re porter’s transcript and an entry in a minute order, the record will be harmonized wh erever possible, but “[i]f it cannot be harmonized, whether one portion of the reco rd should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case. [Citation.]” ( People v. Harrison (2005) 35 Cal.4t h 208, 226.) The reporter’s transcript for June 5, the day th at Minor’s admission was taken, contains a complete recitation of the proceedings on that date. The parties stated their appearances and the admission was immediately taken. Th ere is no indication th at any part of the proceeding was not reported. On this reco rd, we must conclude that the necessary advisements were not given to Minor out side the record of the proceedings.10 The People’s reliance on People v. Sullivan (2007) 151 Cal.App.4th 524 is misplaced. In Sullivan , the reporter’s transcript of the hearing on the defendant’s
Faretta 2 motion was not available and the defe ndant claimed that he was not given proper advisements. ( People v. Sullivan, supra, at pp. 544, 548.) The appellate court presumed the trial court gave the proper advi sements in the face of no evidence to the contrary, and denied the defendant’s claim. ( Id. at p. 550.) In this case, we have the reporter’s transcri pt of the hearing on Minor’s admission. Nothing in the transcript of the proceedings on June 5 suggests that any further advisements, either written or oral, were provid ed to Minor. The trial court’s reference to Minor waiving his right to a hearing as well as his constitutional rights does not indicate that an off-the-record discussion occurred. The totality of the circumstances does not permit the inference that Minor voluntarily and intelligently waiv ed his constitutional rights. Therefore, the failure to advise Minor and obtain his waivers c oncerning his constitutional rights was not harmless. Minor’s conviction fo r violating Penal Code secti on 288, subdivision (a) must be reversed. Since we reverse this matter on the grounds that Mi nor did not knowingly and voluntarily waive his right s, we need not address Mino r’s other claims raised on appeal as they are moot.

2 Faretta v. California (1975) 422 U.S. 806.11 III DISPOSITION The judgment is reversed and Minor’s sentence is vacated. The matter is remanded to the juvenile court for furthe r proceedings for Minor to enter a new admission to the charge, or procee d to trial if he so chooses.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI J.
We concur:

McKINSTER Acting P. J.

MILLER J.