1 Filed 5/2/13 In re I.V. CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT (Glenn)

----

In re I.V. et al., Persons Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,

v. I.V. et al., Defendants and Appellants. C068729 (Super. Ct. Nos. 10JQ00457 & 11JQ00485)

The minors admitted guilt on one count of rape or sexu al penetration by force against the will of the victim while acting in concert with another pe rson. Following an evidentiary hearing on the mi nors’ subsequent motions to withdraw their admissions based on learning disabilities and ineffective assistance, the juvenile court denied their2 motions to withdraw the admissions and co mmitted the minors to the Division of Juvenile Justice (DJJ) for the maximum period of nine years. The minors now contend (1) although de linquency adjudicati ons are traditionally made without a jury trial, the minors have a fe deral due process right to a jury trial in this case due to the lifetime residency restrictions; and (2) the juvenile court failed to advise the minors that they would be subject to sex offender regist ration and residency
restrictions for life. We conclude the minors do not have a right to a jury trial, a nd they fail to show prejudice resulting from improper adviseme nt. We will affirm the judgment.
BACKGROUND Amended petitions filed under Welfare and Institutions Code section 602, subdivision (a), alleged that the minor I.V., age 17, and his twin brother (whose initials are also I.V.), committed eight sexual offenses against E.A., who was 16 years old. The minors admitted one count of rape or sexual penetration by force against the will of the victim while acting in concert with another person (Pen. Code, § 264.1 1 -- count VIII) in exchange for dismissal of seven coun ts charging other sexual offenses. The minors subsequently retained privat e counsel and filed motions to withdraw
their admissions. The motions claimed that due to the minors’ learning disabilities, and
also due to ineffective assist ance by their former attorneys, the minors did not waive their constitutional rights in a know ing and intelligent manner and did not unders tand what they admitted or the consequences of their admissions. The minors also claimed that
their former counsel failed to conduct an adequate inves tigation of their case. At the hearing on their motions, the minors called witnesses, including their former attorneys, presented documentary evid ence, and testified them selves. The former

1 Undesignated statutory references are to the Penal Code.3 attorneys testified that they in formed the minors they would be required to register as sex
offenders. The minors testif ied to the contrary. There was no testimony about statements to the minors concerning the duration of th e registration requirements or the residency restrictions applicable to registered sex offe nders. The juvenile court denied the minors’
motions. The juvenile court sustained the amended petitions for violations of section 264.1
and committed the minors to the DJJ for nine years, the maximum time each minor could be confined in secured custody for a viol ation of section 264. 1. The period of commitment was actually longer for one of the minors due to a term imposed in a prior juvenile proceeding.
DISCUSSION
I The minors contend that although delin quency adjudications are traditionally made without a jury trial, the minors have a fe deral due process right to a jury trial in this case due to the lifetime residency restrictions. We disagree. The United States Supreme Court held in McKeiver v. Pennsylvania (1971) 403 U.S. 528, 530, 545 [29 L. Ed.2d 647, 652, 661] ( McKeiver ) that the due process clause of the federal Constitution does not guarantee j uveniles a right to a jury trial in the adjudicative stage of a state juvenile c ourt delinquency proceeding. The minors acknowledge the holding in McKeiver , but nonetheless argue th ey are entitled to a jury trial because the consequences of these adjudications, partic ularly the lifetime residency restrictions in section 3003.5, subdivision (b ), are so punitive that they render these juvenile proceedings indistinguishable from adult criminal prosecutions. 2 The minors

2 While the minors broadly state that changes in California’s juvenile delinquency law in the past four decades created proceedings th at closely match adult criminal proceedings,4 assert the judgments against th em must be reversed because they did not wa ive their jury trial rights.
The minors did not claim belo w that they have a constitutiona l right to a jury trial. Instead, they elected to admit violations of section 264.1 and to enter pleas rather than proceed with a contested court hearing. Bu t assuming the minors preserved their claims, 3 their assertion of a constitutional right to a ju ry trial in this context is contrary to controlling precedent. Over four decades ago, the plurality opinion in McKeiver concluded that trial by jury is not a constitutional requirem ent in a juvenile proceeding. ( McKeiver, supra, 403 U.S. at pp. 530, 545 [29 L. Ed.2d at pp. 652, 661].) In People v. Nguyen (2009) 46 Cal.4th 1007, 1022 ( Nguyen ), the California Supreme Court likewise recognized that juveniles do not have a constitutional ri ght to a jury trial. Although Nguyen involved

they only provide argument with citation to authority regarding the punitive nature of the residency restriction in section 3003.5. Section 3003.5, subdivision (b ) provides that “[n]otwithst anding any other provision of law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather.” Because they admitted committing an o ffense enumerated in section 290.008, subdivision (c), the minors will be re quired to register as sex offenders when they are discharged from the DJJ. (§ 290.008, subd. (a).)

3 The Attorney General ar gues the minors forfeited their constitutional claims because they did not object in the juvenile court to sex offender registration or residency restrictions. In People v. Marchand (2002) 98 Cal.App.4th 1056, this court held that a defendant forfeits a due process challenge to sex offender regi stration by failing to assert it in the trial court. ( Id. at p. 1061.) But there is no fo rfeiture where the minor presents a facial constitutional challenge, i.e., a claim th at presents a pure question of law that can be resolved without reference to the particul ar sentencing record developed in the trial court. ( In re Sheena K. (2007) 40 Cal.4th 875, 887-889 [also recognizing appellate court’s discretion to consider forfeited claims]; In re Spencer S . (2009) 176 Cal.App.4th 1315, 1323 [exercising discretion to consider minor’s equal protection claim even though the claim was not raised below].) The minors’ jury trial claim is a facial constitutional challenge that we may review even if raised for the first time on appeal.5 whether the federal Constitution a llows the use of a prior juvenile adjudication as a strike under California’s three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), the right to a jury trial in juvenile proceedi ngs was central to the decision because the
defendant claimed that Apprendi v. New Jersey (2000) 530 U.S. 46 6 [147 L.Ed.2d 435] ( Apprendi ) barred the use of his juvenile adjudica tion to enhance his punishment for the current offense where the prior juvenile procee ding did not afford hi m the right to a jury trial. ( Nguyen, supra, 46 Cal.4th at pp. 1010-1 011, 1019-1025.) In Apprendi , the United States Supreme Court held that “[o]ther than the fact of a pr ior conviction, any fact that increases the penalty for a crime beyond th e prescribed statutory maximum must be submitted to a jury, an d proved beyond a re asonable doubt.” ( Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) The Supreme Court in Nguyen held that Apprendi does not preclude the use of a prior juvenile adjudication to enhance the sentence against an adult offender simply because the juvenile proceeding did not confer a right to a jury trial. ( Nguyen, supra, 46 Cal.4th at pp. 1019, 1025, 1028.) Agreeing with the majority of the courts holding that nonjury juvenile adj udications may be used to enhance subsequent adult sentences ( id. at pp. 1020-1022), the California Supreme Court recognized that “the introduction of juries in [juvenile proceedings ] would interfere too greatly with the effort to deal with youthful offenders by proce dures less formal and adversarial, and more protective and rehabilitative -- at least to a degree -- than those applicable to adult defendants.” ( Id. at p. 1023.) The Supreme Court co ncluded that “the absence of jury trials from juvenile proceedings does not significantly unde rmine the fairness or accuracy of juvenile factfinding.” ( Id. at p. 1025.)
The minors nonetheless contend the life time residency restrictions in section 3003.5, subdivision (b) cons titute punishment, and the fa cts required to impose such punishment must be found true by a jury beyond a reasonable doubt. However, the California Supreme Court previously held that the residency restrictions in section 3003.5 are not punishment. ( In re E.J. (2010) 47 Cal.4th 1258, 1278 , 1280.) Although decided6 in a different context, the Supreme Court sa id the residency restrictions are “clearly intended to operate and protect the public in the present, not to serve as additional punishment for past crimes.” ( Id. at p. 1278, italics omitted.) The issue presented in this case is currently before th e California Supreme Court. ( In re S.W . (review granted January 26, 2011, S18 7897) [whether a juvenile court could constitutionally impose sex offender re quirements without a jury trial]; People v. Mosley (review granted January 26, 2011, S187965) [does discretionary imposition of lifetime registration and residency restrictions in crease penalty within the meaning of Apprendi , requiring jury findings]; In re J.L . (review granted March 2, 2011, S189721) [same]). Until the California Supreme Court decides the i ssue, we will continue to be guided by Nguyen.
II The minors next claim they should be allowed to withdraw their admissions because they were not advised that they would be subject to sex offender registration and residency restrictions for life.
A Regarding sex offender registration, the mi nors contend the juvenile court failed to
advise them about the lifetime duration of the sex offender registration requirement. The minors also assert the plea forms misadvised them that the regist ration obligation would expire on their 25th birthdays. In the pres ence of the minors and their attorneys, the juvenile court read aloud the petitions agai nst the minors, including giving the minors notice that if the juvenile court adjudicated them wards of the court for the charged
offenses and committed them to the DJJ they would be re quired to register as sex offenders pursuant to section 290. Before th e juvenile court took the minors’ admissions, the juvenile court asked the minors whether they understood that if they are sent to the DJJ they would be required to register as se x offenders pursuant to section 290 upon their release. The minors responded that they unde rstood the juvenile court’s advisement. The7 record does not reflect a verbal reference to the duration of the registration requirement at that hearing, but the advisement and waiver of rights forms signed by the minors stated
that if the minors admitted a violation of secti on 264.1, they would be required to register
as sex offenders until th eir 25th birthdays. The minors rely on People v. Zaidi (2007) 147 Cal.App.4th 1470 ( Zaidi ). In that case, the First District Court of Appeal held th at before taking a plea, a court must advise a criminal defendant that he or she will be requi red to register as a se x offender for life. ( Zaidi, supra , at pp. 1481-1486.) The minors ar gue that the erroneous advisement regarding the length of sex offender regist ration meant that their admissions were not voluntary and intelligent. They add that their claim is not forfeited by failure to object in the juvenile court because they could not reasonably have brought the error to the juvenile court’s attention. The minors assert they would not have entered the admissions had they been properly advised. The Attorney General co unters that the minors fo rfeited their claims by not objecting in the juvenile court. Disagreeing with the holding of Zaidi , the Attorney General urges that the juvenile court had no duty to advise the minors about sex offender registration at the time of taking the minors’ pleas because sex offender registration is a collateral, rather than direct, consequence of a plea admission. The Attorney General further argues that the minor s should not be permitted to withdraw their pleas because
there is no evidence that th ey relied on any advisement about the length of the registration requirement in entering their pleas . According to the A ttorney General, the minors did not suffer any prejudice because if they had withdrawn their pleas and were subsequently adjudicated of committing more th an one serious felony, they would still be required to register as sex offenders and co uld not have been committed to the DJJ for less than nine years.
We conclude that even if the minors’ clai ms are properly before us, and even if the minors were incorrectly advised, the record does not contain evidence of prejudice.8 As the minors acknowledge, they are entitled to withdraw their pleas only if they establish that they were prejudiced by the failure to advise or the misadvisement. ( People
v. McClellan (1993) 6 Cal. 4th 367, 378 ( McClellan ); In re Moser (1993) 6 Cal.4th 342, 352 ( Moser ); Zaidi, supra , 147 Cal.App.4th at p. 1487.) In other words, to obtain relief,
each minor must show that he would not have admitted guilt had the juvenile court given the allegedly required advisement. ( McClellan, supra, 6 Cal.4th at p. 378; Moser, supra, 6 Cal.4th at p. 352; Zaidi, supra , 147 Cal.App.4th at p. 1487.) Both minors testified at the hearing on th eir motions to withdraw their admissions. They also presented other eviden ce. There is no evidence or indication in the record that
the minors would not have entered the admissi ons to the section 26 4.1 violation if the juvenile court had advised them that they woul d be required to register as sex offenders
for life. Unlike in Zaidi , there is no declaration or testimony in this case that the minors
would not have admitted the violations of section 264.1 if they had known they would be required to register as se x offenders for life. ( Zaidi, supra , 147 Cal.App.4th at p. 1488.) The assertion in the minors’ appellate briefs c oncerning prejudice, with no support in the record, does not satisfy the minors’ burden on appeal. ( McClellan, supra, 6 Cal.4th at p. 378.)
The motions to withdraw ad missions do not complain that the juvenile court failed to advise the minors about the lifetime registration requirement or that the minors were misadvised about the duration of this require ment. The lack of any such evidence suggests that the lifetime duration of the requir ement to register as a sex offender had no bearing on the minors’ decisions to ad mit the section 264.1 violation. ( McClellan, supra, 6 Cal.4th at p. 378.) Moreover, the re cord shows that the minors were facing adjudication on eight counts of alleged sexu al offenses. The juve nile court informed them that if it adjudicated them wards of the court for the charged offenses and
committed them to the D JJ they would be required to regi ster as sex offenders pursuant to
section 290. The minors’ form er attorneys testified that th ey informed th e minors they9 would be required to register as sex offenders. And before the juvenile court took the minors’ admissions, it asked the minors whether th ey understood that if they were sent to the DJJ they would be required to register as sex offenders pursuant to section 290 upon their release. The minors responded that th ey understood. If adjudicated on the eight counts, they faced lifetime se x offender registration and co mmitment for at least nine years. Under those circumstances, the minors agreed to admit one co unt in exchange for
dismissal of seven counts. On this reco rd, the minors fail to meet their burden of establishing prejudice from any error in the advisement about the sex offender registration.
B Turning to the residency restrictions, th e minors claim the juvenile court’s failure
to advise them of the restrictions renders their admissions invalid. The Attorney General responds that the mi nors’ claim is not ripe because there is no evidence the residency restrictions will ever be applied to the minors. According to the Attorney General, the juvenile court ha d no duty to advise the minors about the residency restrictions because such restricti ons are a collateral consequence of the plea. The Attorney General also poi nts out the lack of evidence that the minors relied on the future potential application of the residency restrictions in entering their pleas. Once again, even if the minors’ appellate claim is properly before us, and even if there was a failure to advise, the lack of advisement does not compel reversal because nothing in the record shows prejudice. ( McClellan, supra, 6 Cal.4th at p. 378; Moser,

supra, 6 Cal.4th at p. 352; Zaidi, supra , 147 Cal.App.4th at p. 1487.) Although the minors argue they would not ha ve admitted the section 264.1 violations had they been10 advised about the residency restrictions, there is no evidence in the record supporting that
assertion.
DISPOSITION The judgment is affirmed.

MAURO , J.

We concur:

HULL , Acting P. J.

HOC H , J.