In re Andre C.















Filed 3/25/13 In re Andre C. 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(San Joaquin>)

----






>

In re ANDRE C., a Person Coming Under the Juvenile Court Law.	C071221 (Super. Ct. No. 69024)
THE PEOPLE, Plaintiff and Respondent, v. ANDRE C., Defendant and Appellant.

Pursuant
to a resolution reached at a contested jurisdictional
hearing, the minor, Andre C., admitted one count of href="http://www.fearnotlaw.com/">child abuse (Pen. Code, § 273a,
subd. (a)),href="#_ftn1" name="_ftnref1"
title="">[1]
and three other such counts were dismissed along with a count of corporal
injury on a cohabitant (§ 273.5).

The
juvenile court declared the admitted count to be a felony, adjudged
Andre C. to be a ward of the court, set a maximum confinement term at six
years, ordered Andre C. to be placed in a suitable licensed placement
while on probation, and then placed Andre C. in the Rite of Passage
program (ROP) in Nevada.

On
appeal, Andre C. contends the juvenile court (1) violated his legal right
to special education that conforms to his Individual Education Plan (IEP), (2)
erred in requiring him to obtain his high school diploma or GED as a probation
condition, as there was no evidence of his ability to comply, and (3) failed to
determine his ability to pay a $100 restitution fine. We shall order the correction of a clerical
error on the disposition order, brought to our attention, but otherwise affirm
the juvenile court’s adjudication and orders.


FACTUAL BACKGROUND

The
parties stipulated that the police report contained a factual basis for the
admitted count. As summarized by the
probation report, the police report stated as relevant:

Police
were dispatched to Andre C.’s home on December 20, 2011, on a disturbance call. Andre C.’s father informed the officers
that Andre C., then just a few days shy of 16 years old, and his
girlfriend, then 17 years old, “had been fighting all night long” and that the
girlfriend’s mother was present at the residence to take the girlfriend and the
couple’s infant child.

According
to the girlfriend, she and Andre C. had been arguing out of jealousy, each
believing the other might be cheating.

Officers
noticed the girlfriend’s face was red and swollen on one side.

Subsequent
investigation disclosed that Andre C. had been abusive to the couple’s
one-month-old infant daughter over her crying—yelling in the baby’s ear,
duct-taping her mouth, placing her in a closet, and slapping her buttocks (the
count Andre C. admitted involved this slapping).

DISCUSSION

I. The Juvenile
Court Adequately Considered Andre C.’s Educational

Needs in Placing Andre C. in the ROP Program

Andre C.
contends the juvenile court erred in failing to review or consider his IEP at
the dispositional hearing and prior
to ordering that he be placed in ROP. We
disagree.

Background

In
February 2012, the juvenile court disagreed with the probation department’s
initial recommendation that Andre C. be commi`tted to juvenile hall for 90
days. The court believed camp or
placement was more suitable. The court
ordered Andre C. evaluated by Gary Cavanaugh, M.D., a psychiatrist, “for a
psychological report and recommendations,” and ordered the probation department
to prepare a supplemental report “with an eye towards placement or camp” to
determine if Andre C. “qualifie[d] for either and what would better meet
his personal needs.” The court noted
that Andre C. did not have any school credits, and noted the importance of
finding a placement where Andre C. “has to go to school.” (The initial probation report noted that
Andre C. was a ninth grader at “one.Insight at Discover,” having been
expelled from high school, and further noted that he had “a history of IEP’s
for behavioral reasons and for learning disabilities.”)

In March
2012, Dr. Cavanaugh filed the court-ordered psychological report. Cavanaugh acknowledged that Andre C.
“had 28 disciplinary reports in the sixth grade and has had IEP’s for
behavioral issues and learning disabilities,” but the doctor did “not see
evidence of a major psychiatric illness” and concluded, after evaluating
Andre C.’s learning abilities, that Andre C.’s “intelligence appears
to be within the average range, although it appears that he has some problems
with math.” Cavanaugh also concluded
that Andre C. “would best be served in a setting where there is a maximum
of structure and the requirement to take responsibility for his actions.”

The
probation department, in its supplemental report, “strongly recommend[ed] ROP,
Nevada” for Andre C. According to
the department, ROP is a highly structured program, and provides an extensive counseling
program, parenting classes, anger management classes, and the opportunity to
also participate in vocational trades.

In May
2012, the juvenile court placed Andre C. in ROP, finding that the ROP
programs are “really, really good programs,” that ROP was in Andre C.’s
“best interest,” that there were no equivalent facilities in California, and
that Andre C. would be able to “get his high school education” there. At this hearing, Andre C.’s attorney
stated that Andre C. was “excited to go to ROP Nevada” because he thought
it was “going to help him”; and Andre C. added that when he completes the
ROP Program, he “want[s] to go to UC Berkeley.”


Analysis

“A
juvenile court’s commitment order may be reversed on appeal only upon a showing
the court abused its discretion.
[Citation.] ‘ “We must
indulge all reasonable inferences to support the decision of the juvenile court
. . . .” ’ ” (>In re Robert H. (2002)
96 Cal.App.4th 1317, 1329-1330.)

“Education
Code section 56000 declares that ‘all individuals with exceptional needs have a
right to participate in free appropriate public education
. . . .’ ‘Individuals
with exceptional needs’ includes any child who is ‘[i]dentified by an
individualized education program [IEP] team as a child with a disability,’ as
defined by the [federal] Individuals with Disabilities
Education Act (20 U.S.C. § 1400 et seq.)
. . . .” (>In re Angela M. (2003)
111 Cal.App.4th 1392, 1397, fn. omitted (Angela M.); Ed. Code, § 56000, subd. (a).)

The
juvenile court must address and determine a child’s general and special
education needs, identify a plan to meet those needs, and set forth findings on
a Judicial Council form, form JV-535.
(Cal. Rules of Court, rule 5.651(b)(2); see Angela M., supra,> 111 Cal.App.4th at
p. 1398.)

>Angela M. addressed the requirement of a
juvenile court to consider a minor’s educational needs. That decision found the juvenile court there
abused its discretion in committing the minor to the California Youth Authority
(now the Division of Juvenile Justice) without mentioning the issue of
educational needs, as the court was “clearly on notice that [the minor] may
have special educational needs.” (>Angela M., supra, 111 Cal.App.4th at
pp. 1398-1399.)

The
instant case is not Angela M. Here, the juvenile court was clearly
aware of its duty to consider Andre C.’s educational needs, and did
consider them, stressing the importance of appropriate schooling. The juvenile court ordered an additional
psychological evaluation and a supplemental probation report; the completed
evaluation included a detailed analysis of Andre C.’s learning
abilities. The psychiatrist who
performed the psychological evaluation did not see evidence of a major
psychiatric illness, and concluded that Andre C.’s intelligence was within
the average range; the psychiatrist reached these conclusions in the context of
noting that Andre C. “has had IEP’s for behavioral issues and learning
disabilities.” Moreover, as the People
perceptively recognize, although the record notes a “history of IEP’s,” there
is nothing indicating that Andre C. had a current IEP. Finally, the juvenile court found that
Andre C. could “get his high school education” (and “even help
. . . get[ting] into college if that’s what [Andre C.] wants to
do,” as well as vocational training) at ROP, Nevada, a program the probation
department had “strongly recommend[ed]” for Andre C.

We conclude the juvenile court adequately
considered Andre C.’s educational needs in placing him with ROP, and the
court’s failure to formalize its educational findings in form JV-535 is
harmless on this record.

II. The Juvenile
Court Properly Imposed the Probation Condition That

Andre C. Obtain a High School Diploma and/or GED

Andre C.
contends this probation condition must be stricken as unreasonable, as there
was no evidence of his ability to comply.
We disagree.

A
juvenile probationer may be subject to “any and all reasonable conditions” the
juvenile court “may determine fitting and proper to the end that justice may be
done and the reformation and rehabilitation of the ward enhanced.” (Welf. & Inst. Code, § 730, subd.
(b).)

Andre C.
argues that “[i]n the instant case, as in [In
re] Robert M. [(1985)
163 Cal.App.3d 812 (Robert M.)]
, evidence indicated [Andre C.] lacked the ability to comply with the
educational probation condition. The
probation report alerted the court to [Andre C.’s] learning disabilities,
history of IEP’s, and total lack of any credits towards graduation. The psychological report by Dr. Cavanaugh
states, ‘[Andre C.] had some difficulty with reverse digit span, simple
calculations, and simple change-making problems. His fund of general information [appears]
intact at a lower level.’ Neither the
court nor Dr. Cavanaugh ever viewed the minor’s IEP, which would have revealed
the nature and extent of his learning disabilities. [¶]
Yet the court imposed a pro forma probation condition that [Andre C.]
obtain a GED and/or high school diploma.
The court certainly did not fashion the condition to fit
[Andre C.’s] circumstances.”

In
Andre C.’s psychological evaluation, however, Dr. Cavanaugh, as
noted, acknowledged that Andre C.
“had 28 disciplinary reports in the sixth grade and has had IEP’s for
behavioral issues and learning disabilities,” but the doctor did not see
“evidence of a major psychiatric illness” and found that Andre C.’s
“intelligence appears to be within the average range
. . . .” As also noted,
Cavanaugh’s psychological evaluation included a detailed analysis of
Andre C.’s learning abilities.
Furthermore, at the time of these proceedings, Andre C. was only in
the ninth grade, the beginning of high school; this could account for his lack
of school credits. Finally,
Andre C. is unlike the minor in Robert
M., supra, 163 Cal.App.3d 812. In
Robert M, the appellate court struck
a probation condition that required the minor to obtain satisfactory grades,
concluding that it was fundamentally unfair to deprive the minor “of his
liberty for failing to achieve a level of school performance undoubtedly beyond
his capacity.” (Id. at p. 817.) The
minor in Robert M. was 13 years old
and in the seventh grade, but he had second grade vocabulary skills, third
grade reading and math skills, and an IQ of 70.
(Id. at p. 816.)

We
conclude the juvenile court properly imposed the probation condition that
Andre C. obtain his high school diploma or equivalent.

III.
Andre C. Has Forfeited the General Fund Fine Issue;

In Any Event, Any Error Was Harmless

Andre C.
contends the juvenile court ordered him (together with his parents) to pay a
fine of $100 to the General Fund of San Joaquin County pursuant to Welfare and
Institutions Code section 731, subdivision (a)(1), without determining whether
he (Andre C.) had the ability to pay as the statute requires. Andre C. concedes that defense counsel
did not object to this order.

This
court has concluded that, in the interests of fairness to the trial court,
fairness to the opposing party, and the needs for an orderly and efficient administration
of law and judicial economy, a defendant who fails to object in the trial court
that the court imposed a restitution fine without determining ability to pay,
forfeits the issue on appeal. (>People v. Gibson (1994)
27 Cal.App.4th 1466, 1468-1469.)
Nor may such an alleged error be deemed an unauthorized sentence,
which does not require trial court objection to be considered on appeal. (People
v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1072.)

Even if
we assume the issue is properly before us, however, the record shows that any
such error was harmless. The fine at
issue was $100, and was ordered to be paid by Andre C. and his
parents. At the time of the offense
here, Andre C. was working for his father and at an auto body shop. Andre C.’s sister participated in school
activities such as cheerleading and band, and Andre C. regularly attended
basketball and football games. The
program in which Andre C. had been placed—ROP— offered a high school
education component and requisite certificates for various trades. As such, any failure on the trial court’s
part to consider Andre C. and his parents’ ability to pay the $100 fine
can be considered harmless.

DISPOSITION

We direct
the juvenile court to correct the following clerical error in its March 26,
2012 disposition order: The $100.00 fine
payable by Andre C. and his parents to the Restitution Fund was made
pursuant to Welfare and Institutions Code section 730.6, subdivision (b)(1)
(for a felony offense), rather than, as the order currently states, Welfare and
Institutions Code section 730.6, subdivision (b)(2) (for a misdemeanor
offense). (People v. Mitchell (2001) 26 Cal.4th 181, 185.) In all other respects, the juvenile court
adjudication and orders are affirmed.





BUTZ , J.





We concur:







ROBIE , Acting P. J.







DUARTE , J.