Opinion
A156800
06-02-2020
In re J.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1801086)
J.C. (minor) was 12 years old when he took a loaded firearm into his sixth grade class. After entering a plea to possession of a firearm by a minor, he was adjudged a ward of the court and placed in the custody of the probation department. A first-time juvenile felon, minor contends the deferred entry of judgment law (Welf. & Inst. Code, § 790 et seq.) violates equal protection in excluding juvenile felons under 14 years old from its coverage. He also argues the juvenile court erred in denying his motion to redact the probation report; the disposition should be reversed because there was no child and family team meeting (§ 16501, subd. (a)(4)) and because the probation report was legally insufficient; the removal order should be reversed because it violates minor's right to family unity; cumulative error warrants reversal; and the restitution fine must be vacated because there was no hearing on ability to pay.
Further undesignated statutory references are to the Welfare and Institutions Code.
We will remand for a hearing on ability to pay the restitution fine and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Wardship Petition and Plea
Minor was the subject of a wardship petition filed by the Contra Costa County District Attorney under Welfare and Institutions Code section 602 alleging two counts of felony possession of a firearm by a minor (Pen. Code, § 29610; counts 1 and 3), one count of felony possession of a firearm in a school zone (id., § 626.9, subd. (b); count 2), and one count of misdemeanor possession of a loaded firearm (id., § 25850, subd. (a); count 4).
Further undesignated statutory references are to the Welfare and Institutions Code.
The facts underlying the petition are described in the Report and Recommendation prepared by the probation department (the probation report). In brief, a student at Hillview Junior High School reported to the school resource officer that he had seen another student with a pistol in a school bathroom. Minor was taken out of a classroom and found with a pistol at his hip wedged between two pairs of pants. The pistol was loaded with a live round in the chamber and five rounds in the magazine. A student who knew minor (not the reporting student) told the officer that minor "ha[d] been 'beefing' with another student, and he was concerned [minor] might use the firearm against someone."
Minor pleaded no contest to counts 1 and 4 with the understanding that his admissions could result in placement in a locked facility for a maximum of three years, four months and that the remaining two felony counts would be dismissed.
The juvenile court sustained the petition as to counts 1 (felony possession of a firearm by a minor) and 4 (misdemeanor possession of a loaded firearm) and scheduled a contested hearing on disposition.
Probation Report and Recommendation
This was minor's first sustained petition. The probation department recommended, among other things, a court order that the "Probation Officer shall take custody of minor and place minor in a Court-Approved home or institution."
The probation report, prepared January 22, 2019, included a section called "Social Study and Case Assessment" spanning 11 pages. A probation officer interviewed minor at Juvenile Hall with minor's counsel present. Regarding the current offense, minor told the officer that he found the firearm unattended on a stoop near some houses. Minor said he was unaware the weapon was loaded, and he wanted to give it to his father. But he admitted that he had been in possession of the weapon for two days when he was caught with it at school. Minor said he took the firearm to school "to 'show off' and 'look cool.' " He also admitted that he allowed another student to handle the firearm. The officer asked minor about a witness report that minor had a conflict with another student, and minor responded that "bringing the firearm [to school] 'had nothing to do with Mikey.' "
Minor described himself as social and a good athlete. He said he had learned his lesson, and he believed home supervision would keep him out of trouble. Minor denied that any of his friends were on probation or gang- affiliated. Asked "if he feels there is anything he needs to work on in his life, he replied 'Stay away from fighting and guns.' " Regarding drugs and alcohol, he reported he had experimented but did not use any substance consistently. Minor said he tried alcohol and "lean" (promethazine) one time each and marijuana four times. He also admitted that he sold marijuana. Asked how he obtained the marijuana, minor responded he grabbed it from the house of friends of his brother, J.M.
At the time of the firearm incident on December 18, 2018, minor was 12 years old and in sixth grade at Hillview Junior High; he was later expelled based on the incident. Before expulsion, minor had earned a GPA of 1.33 while attending school 65 percent of the time. In his one semester at Hillview, he "was suspended 10 times and incurred two referrals." Several of the suspensions were related to fighting. In September 2018, minor physically and verbally threatened several students and threatened to shoot a student at his house. In November 2018, he was suspended because he had a bag of marijuana. The probation department found that minor's history of school discipline "indicate[d] a pattern of defiance toward school authority, marked by general noncompliance with directions and cursing at staff members."
Discipline records from minor's elementary schools "illustrate[d] a similar pattern of aggressive behavior and defiance toward school authority." In March 2017, he threatened other students, and when the principal tried to intervene, minor said, "I don't give a fuck if you don't want me to act like this" and "I'll slap the shit out of you." In April 2016, minor was suspended from school after coercing one of his peers to bring a BB gun to school. At some point, minor had control of the BB gun and threatened to shoot another student.
Minor and his father reported minor was healthy with no current medical issues aside from mild asthma. He had no history of mental illness. The probation officer who prepared the report sought input from Contra Costa County Mental Health Liaison Amanda Kuzio, who stated minor could benefit from a treatment program such as multisystemic therapy or functional family therapy to address his poor academic performance and behavioral problems. The suggested treatment program would provide parental coaching "in an effort to prevent a need for a future Out-Of-Home Placement."
Minor lived with his father Joseph and his uncle Gregory. At the time the probation report was prepared, minor had been living with his father for about two years, following his mother's incarceration. Minor "described his mother as a nice person who 'did what she had to do.' " Minor said he loved his mother "maybe more than his father." Minor "described his father as 'cool,' and noted he does not get mad easily."
The probation report also noted that minor's mother and father were never married and had been a couple for only about a year, from which we infer that minor lived with his mother, separate from his father, for most of his life until his mother was incarcerated. In 2016, minor's mother was convicted in Hawaii of theft and identity theft and received a 10-year sentence. She also had a criminal record in California: misdemeanor false personation and driving without a license in Contra Costa County in 2005; misdemeanor theft by use of access card data and embezzlement in Contra Costa County in 2007; passing a false check in Alameda County in 2010; misdemeanor reckless driving in Kings County in 2010; misdemeanor fraudulent making or drawing a check with insufficient funds in Contra Costa County in 2011; possession of a bad check in Tulare County in 2011; assault with a deadly weapon in Contra Costa County in 2013.
The probation officer interviewed minor's father, who "described his son as a good kid who is smart, funny and athletic." Minor's father reported that he loved having minor in his life and acknowledged, "he needs to 'be more of a father instead of his friend.' " He described minor's behavior as " 'pretty good' and ordinary." He said he enforced house rules such as keeping a clean room and no cursing, but he never enforced a curfew "and did not have a problem with his son going out."
Regarding minor's offenses, his father said minor "is 'too advanced for his age,' further adding he looked up to his [older] brother [J.M.] a lot." Minor's father reported that he and minor still had contact with some of J.M.'s friends and that he (father) asked them to find out who gave minor the firearm, but he received no answer. He said neither minor nor minor's friends identify as, or associate with, gang members.
Asked whether minor had ever run away, minor's father described an incident in November 2018, when minor was at his grandfather's house for four days. At the time, minor's father reported him missing. He told the probation officer he was "baffled" that minor's grandfather did not tell him where his son was. There was a referral to social services regarding minor from November 6, 2018, alleging physical abuse by his father. A social worker stated the referral remained open and under investigation with no findings at the time of the probation report. Minor's father had "an extensive criminal record" in Contra Costa County—including a conviction of participating in a criminal street gang—although his last felony conviction was from 2005.
He was convicted of felony transportation or sale and possession of a controlled substance in 1996; felony possession of a controlled substance in 1997; felony possession of cocaine base for sale and transportation or sale of a controlled substance in 2001; felony possession of a controlled substance in 2002; evading a peace officer in 2003; participating in a criminal street gang in 2004; and felony possession of a controlled substance in 2005.
Minor's mother (interviewed by telephone) did not want minor released to his father and did not believe the father could "provide adequate supervision." She preferred that minor be released to his uncle or grandmother.
Minor was initially detained in Juvenile Hall on December 18, 2018. Each week of detention, he earned "the lowest level of compliance within the behavioral management system" used at Juvenile Hall. A juvenile institutional officer reported that minor consistently lied to staff and failed to accept responsibility for his actions resulting in frequent loss of privileges.
Using an evidence-based assessment system, the probation department determined minor had a moderate risk of reoffense and would benefit from a "Selective Intervention" supervision strategy.
Probation Supervisor Kiki Williams determined minor met the criteria for placement in a residential therapeutic program based on his need for treatment to address significant behavioral concerns. The minor appeared " 'disturbingly comfortable with criminality, and his lack of parental support and structure, poor academic performance, continuous association with the negative/older peers of his gang-related sibling [it was noted that his brother J.M. was known to Probation to be a gang member], experimentation with drugs and aggressive behavior towards peers and adults, [wa]s of great concern.' "
Under the heading "Analysis of Case Problems and Risks," the probation department wrote that it found "minor's conduct in the instant offense to be egregious and demonstrative of a critical lack of moral reasoning skills." Given minor's offense of bringing a loaded firearm to school and the witness report that minor had a conflict with another student, probation had "serious concerns regarding the welfare of the minor and the community." Of "primary concern" was "the lack of structure and parental support in the minor's life."
Under "Case Needs," the probation department wrote that minor needed "to be in a properly supervised environment with adequate resources available to meet his therapeutic needs" and "to attend school daily with no unexcused absences." Further, "effective intervention [would] include programming to address minor's pattern of aggressive behavior toward his peers and defiance with authority figures." It recommended minor be placed in a residential therapeutic program, which would "provide the minor a safe structured environment equipped with adequate mental health resources to address the minor's therapeutic needs, such as anger management and possible trauma."
Contested Disposition Hearing
At the hearing on disposition, minor called three witnesses—minor's aunt, the mother of one of minor's friends, and minor's uncle. They all agreed that the current offense seemed out of character for minor.
Minor's maternal aunt testified she spends three to four days a week with minor, taking him to, and picking him up from, school. She described minor's interactions with his father as friendly and loving. Minor was respectful with her. She thought the current offense was due to minor moving from elementary school to junior high and hanging around "the wrong group of people." She testified that minor would not have access to weapons when under her care. She was aware that minor had been suspended but did not know he had been suspended 10 times. She thought minor had a 2.0 GPA. She did not know how minor obtained the gun or that he had it. She testified that minor had a group of adults who supervise him. His father would discipline minor by grounding him, taking away his cell phone, or taking away videogames, and when he is disciplined, minor accepts the punishment and follows it. Probation had not asked if she would be willing to take minor into her home, but minor's aunt "would totally be willing" to do that.
Nashira Hudson met minor in elementary school in Pittsburg when her son played football with him. She supervised minor multiple times, including for a week-long trip for a football tournament, and she "[n]ever had a problem out of him." Hudson described minor as very affectionate and caring, and said, "He's shown leadership." She is comfortable with her son hanging out with him. She believed minor had supportive adults in his life.
Minor's maternal uncle opined that his father provided a good home to him. Minor was always polite, respectful, and obedient with his uncle. On the maternal side of the family, minor is "supported and carefully watched over."
In addition to presenting three witnesses, minor's counsel told the court she had spoken to Amanda Kuzio, liaison between Functional Family Therapy and Community Options for Families and Youth and Probation. Counsel reported that Kuzio said minor could be set up to receive Functional Family Therapy at home around early March, "so that's something that can start very, very soon." (Counsel made this statement at a hearing on February 14, 2019.) Minor's counsel urged the court to allow minor to stay home with an ankle monitor and therapy. She observed that he had "so, so, so much room for growth" given that he was only 12 years old, and she pointed out that minor would be monitored for a long time and "if things aren't working out for him [on the ankle monitor], the Court still has all sorts of opportunities," such as a "placement down the line . . . or send[ing minor] to a different kind of setting like the Ranch, if that's something that ends up being necessary." She also reported that minor "got student of the week recently in school" at Juvenile Hall.
Disposition
The juvenile court (Hon. John Cope) followed the probation department's recommendation of an out-of-home placement. The court relied on the seriousness of the offense, noting, "We're sitting here so lucky that there's not some dead 6th grader whose parents just left the funeral, I mean, because of what you did." Later, the court addressed minor, "[M]y goal is to make sure that you're not dead on the slab. And I'm totally serious. Because if we don't stop this from happening, then carrying loaded firearms with rounds in the chambers to school, that's where somebody is going to end up. And it might be you. The person I might save may be you, [minor]. It's going to feel like punishment[, it']s going to feel horrible, but I got to, despite what everybody else says, I got to find a way to help you through this very difficult part of your life."
The court also believed minor's family was not up to the task of keeping minor "on the right track." Again addressing the minor, the court said, "I will be honest with you, part of the reason why you're going to be put in placement is because of the fact that whatever skills exist in your family at home with dad or aunt, they're not equal to the task. Maybe your dad is working too much, maybe aunt, I don't know. But it was while they were taking care of you that you were out of control at school and getting in fights and picking up loaded firearms and taking them to school. [¶] So you have to be responsible for what you did but at the same time a combination of between how you are and how your parents, or your dad and your other family members are, they're not capable of doing what is necessary to keep you on the right track. But we can all learn. [¶] Dad, we can learn. [¶] And life is long and life gives us multiple opportunities. This is your opportunity to change direction. And in 6 months or 8 months from now there will be other opportunities." The court urged the probation department to find a placement with a school onsite, so minor could get "some school behind you and under your belt and get your credits back earned and get your way towards high school starting." "And then dad and maybe aunty are going to participate in some of this family therapy. Then in a few months then we can go to the next step and you will be on the same track as your lawyer suggested."
The court continued, "But I can't in good consci[ence] send you back to the same family situation that led you to where you are today. That's not safe and it's not helping you. That's what I'm trying to do. And everyone in this room that wanted to fight each other over—it was unfortunate. Because what we really need to do is put our heads together and figure out plans. And I know that nothing about what I'm going to do today is perfect because if it was perfect there would be this already set up plan and placement ready for him to go in tomorrow, and I know that's not going to happen. That's what's so unperfect about the system. The government is way not perfect. But I can't let you turn around and go back to walking to school and picking up firearms and acting like a big shot and getting in fights and all that stuff that was happening before.
"As much as I like one hour a week of therapy, I can't turn you back with just that one hour of therapy or hour and a half of therapy every week, thinking that's going to fix and make it safe. Because by the time that therapy will work, you or somebody could be seriously hurt or dead, and I'm serious about that. You can look away all you want and say Judge Cope is crazy, but I'm seriously believing I'm saving your life right now."
"So there you go. I'm going to adjudge the minor a ward of the Court with no termination date. The minor's welfare requires custody be removed from the parents pursuant to 726 of the Welfare & Institutions Code Section. The probation officer shall take custody of the minor and place the minor in a court approved home or institution . . . ."
At this point, minor's father interjected, "Fuck y'all man." The court noted that minor's father angrily stormed out of the room, slamming the door "in an aggressive, and angry, threatening way."
At a hearing on March 13, 2019, it was reported that minor had been accepted by Children's Home in Stockton and transportation arrangements had been made.
DISCUSSION
A. Equal Protection Challenge to the Deferred Entry of Judgment Law
"Under Welfare and Institutions Code section 790 et seq., which governs deferred entry of judgment (DEJ), first-time juvenile felons [who were at least 14 years old when they committed their offense] may have their charges dismissed and records sealed upon successfully completing probation." (In re Spencer S. (2009) 176 Cal.App.4th 1315, 1320 (Spencer S.); § 790, subd. (a)(5).) Minor contends the DEJ law violates equal protection in excluding minors under the age of 14 from its benefits.
This argument is forfeited. " 'All issues, even those involving an alleged constitutional violation, are subject to the rule of forfeiture, and a defendant's failure to raise the issue before the trial court will generally result in the appellate court's refusal to consider it.' [Citation.] Considering an issue for the first time on appeal is often unfair to the trial court, unjust to the opposing party, and contrary to judicial economy because it encourages the embedding of reversible error through silence in the trial court." (In re M.H. (2016) 1 Cal.App.5th 699, 713-714.) In this case, minor never argued the DEJ law should apply to him, so the argument is forfeited.
But even if we were to exercise our discretion to address minor's constitutional challenge, we would reject it following the reasoning of Spencer S., supra, 176 Cal.App.4th 1315. There, a juvenile misdemeanant challenged the DEJ law on equal protection grounds for excluding juveniles who committed misdemeanors rather than felonies. (Id. at p. 1322.) After reviewing the history and purpose of the DEJ law, the court concluded, "the DEJ law's benefits were rationally restricted to juvenile felons because of the severe consequences otherwise applicable to them." (Id. at p. 1328.) The same rationale applies here because juvenile felons who were not 14 years old at the time of their offenses, such as minor, are not subject to all the same consequences as older juvenile felons. (E.g., § 654.3, subd. (h) [informal supervision not available to minors who commit felony offenses when 14 years old or older].) B. Motion to Redact the Probation Report
Section 827 provides for confidentiality of juvenile case files and specifies persons who may inspect such files. (See Pack v. Kings County Human Services Agency (2001) 89 Cal.App.4th 821, 827 ["Section 827 sets the current parameters of this state's policy with respect to the confidentiality of juvenile records and governs the release of such records"].) Minor contends the juvenile court erred in allowing the probation department to introduce information that minor's half-brother, J.M., was "known to Probation as a gang member" without complying with the requirements of section 827 or affording minor due process of law. This contention fails for lack of prejudice.
1. Background
As we have described, J.M. was mentioned a few times in the probation report. Minor himself stated he sold marijuana that he had gotten from the house of J.M.'s friends. Minor's father reported that he asked J.M.'s friends to find out how minor obtained the firearm.
In the context of reporting minor's father's statements that minor was "too advanced for his age" and that minor looked up to J.M. a lot, the probation department added, "It should be noted [J.M.] is known to Probation to be a gang member, and is currently committed to the Division of Juvenile Justice for a sustained murder charge." The probation report also noted that the officer who spoke to minor's father "pointed out the minor's brother is known to probation as a gang member, and both the minor and [minor's father] have stated [J.M.]'s friends are still involved in their lives." This statement was made in reference to minor's father's response that minor and his friends did not identify with, or associate with, gang members.
The probation report mentioned J.M. again in the "Analysis of Case Problems and Risks" section: "Of primary concern is the lack of structure and parental support in the minor's life. According to minor's father, [minor] looked up to his brother [J.M.] a lot, who is a known gang member currently committed to the Division of Juvenile Justice for a murder. Moreover, the minor's father has his own criminal history, which includes a conviction for taking part in a criminal street gang. Based on statements made by the minor and his father, the pair appear to maintain some degree of contact with friends of [J.M.]. Lastly, the minor said of his incarcerated mother, 'She did what she had to do.' All of this amounts to an environment which normalizes criminal behavior, and appears to leave the minor seeking acceptance among older negative peer groups."
Prior to the contested hearing on disposition, minor filed a motion to redact portions of the probation report. Minor sought a court order that the probation department "redact all portions of the report that discuss [J.M.]'s juvenile court history" and that all previous copies of the probation report be destroyed. Minor argued (1) the disclosure of J.M.'s juvenile history violated section 827, (2) the disclosure was irrelevant and prejudicial and should be excluded under Evidence Code section 352, and (3) the disclosure violated minor's right to due process. In his due process claim, minor asserted his counsel was not entitled to J.M.'s records and therefore could not refute the probation department's claims and, "Probation has the benefit of an information imbalance."
Opposing the motion, the People pointed out that J.M.'s offense is excluded from confidentiality protection under section 676 and asserted the exacted information contained in the probation report "would be made available for public inspection." The People further argued the information was relevant to minor's social history, "in light of the facts of this case and how much [minor] looks up to his brother" and there was no information imbalance because "the circumstances surrounding [J.M.]'s sustained petition are not withheld from [minor] or his family."
Section 676 provides, "[n]otwithstanding Section[ ] 827," when a petition is sustained for certain offenses, including murder, "the charging petition, the minutes of the proceeding, and the orders of adjudication and disposition of the court that are contained in the court file shall be available for public inspection." (§ 676, subds. (a) and (d).)
The juvenile court denied the motion. First, the court noted that it did not consider the motion an objection to disclosure by J.M. (the holder of the right to confidentiality). Second, it stated that there was no proof section 827 had been violated. The court then explained its reasoning: "So the only information I know about the brother is that he's apparently on a sustained petition for murder at the Department of Juvenile Justice, which, to me, appears to fall under [section 827.2 ]. . . . [A]t this point, I have to assume that 827 was complied with or at least not violated. There's other code sections that allow for the use of information if it is used to—used in connection with and in the course of a criminal investigation or a proceeding brought to declare a person a ward of the juvenile court. And it didn't say that it had to be that minor who's—who was being declared a ward of the court. It could be a different minor like a crime partner or a brother maybe.
Section 827.2, subdivision (c), provides, "a law enforcement agency may disclose to the public or to any interested person the information [about the felony offense and disposition of the case] regarding a minor 14 years of age or older who was found by the court to have committed" certain enumerated offenses including murder. (See § 707, subd. (b).)
"But—so I'm going to deny the motion. The information will remain in the probation report. It is understandably limited and I'm not going to use it, I assure you, by any kind of guilt by association or attribute his brother's acts to him.
"However, there is a statement in the probation report that says according to the probation officer that [minor], this minor, looks up to his brother. And so that—that's a social aspect of the minor and the history of the family that I think the Court is obliged to take into account in a dispositional hearing. But I'm not going to say just because something bad happened to a sibling that it must mean that something bad has to happen or will happen to this minor. I'm smart enough to know that's not the case. I have to look at this minor and his life and his circumstances and the family that he lives with the way it is with him and not what happened with his brother.
"The information in the probation report about his brother is very, very limited. Just one or two big pieces of information that he's in the Department of Juvenile Justice and what for and they're—I'm not even taking very seriously that he's a gang member. But if you need to delve into that more, now you know what my ruling is. I'm not striking any portion of this from the report, but I've indicated that I'm going to use it in a fairly limited way."
2. Analysis
On appeal, minor acknowledges the facts that J.M. was charged with a violent felony, that the charge was sustained, and that he was committed to the Department of Juvenile Justice are all a matter of public record and, thus, the probation report could properly convey that information. His sole complaint is that the report should not have included the statement that J.M. was known to probation to be a gang member. But even assuming for the sake of argument that the information about J.M.'s gang status was taken from J.M.'s juvenile case file in violation of section 827, we discern no prejudice from this claimed error.
The juvenile court here was concerned with minor's own past behavior—his school records showed he had been suspended multiple times for fighting, he had been found at school with a bag of marijuana (and he admitted he sold marijuana he had obtained from J.M.'s friends), and he had threatened to shoot other students on at least two other occasions—and his father's apparent indifference to, or inability to correct, that behavior. Despite multiple suspensions, chronic truancy, reports that minor threatened to "slap the shit" out of his elementary school principal, and the fact that minor previously was found with a bag of marijuana at school in sixth grade, minor's father described minor's behavior as " 'pretty good' and ordinary" and admitted he needed "to 'be more of a father instead of his friend.' "
The court found that minor's father and aunt were "not equal to the task" of addressing minor's issues and stated it could not in "good consci[ence] send [minor] back to the same family situation that led [him] to where [he] is today." Given the court's stated reasons for its disposition, it is not reasonably likely the outcome would have been different had J.M.'s gang status been omitted from the probation report. Further, the court said it was "not even taking very seriously that he's a gang member," and "I have to look at this minor and his life and his circumstances and the family that he lives with the way it is with him and not what happened with his brother." Later, the court observed, "I don't know that I have anything that says that he's on the same path as his brother, and I'm not going to think about it that way." Under these circumstances, we are confident that any error in admitting information about J.M.'s gang status was harmless.
Minor also raises a due process claim related to the admission of J.M.'s gang status. To the extent minor is attempting "to inflate [a] garden-variety evidentiary question[ ] into a constitutional one[ ]," we reject the claim. (People v. Boyette (2002) 29 Cal.4th 381, 427.) Minor argues he should have been afforded access to J.M.'s juvenile case file and speculates about what he could have found that may have been helpful in his own disposition hearing. However, we cannot say minor was denied due process because nothing in the record indicates minor sought J.M.'s juvenile case file and was denied access. C. Lack of a Child and Family Team Meeting
Section 706.6, subdivision (a), states in part, "Services to minors are best provided in a framework that integrates service planning and delivery among multiple service systems, including the mental health system, using a team-based approach, such as a child and family team [(CFT)]. A child and family team brings together individuals that engage with the child or youth and family in assessing, planning, and delivering services." The statute further provides that "the probation agency shall consider any recommendations of the" CFT in developing its case plan. (§ 706.6, subd. (b)(2).)
Minor argues the dispositional order must be reversed because no CFT meeting preceded disposition. This argument has been forfeited.
Minor did not object to the failure to convene a CFT meeting prior to the issuance of the probation report. "It is well established that procedural errors may not be raised at the appellate level if they were not raised in the trial court level. '[E]ven constitutional rights, including those of a minor in the area of juvenile court procedure, will ordinarily be waived by silence, i.e., by their nonassertion.' " (In re Christopher S. (1992) 10 Cal.App.4th 1337, 1344.) "Any other rule would ' " 'permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.' " ' " (In re Riva M. (1991) 235 Cal.App.3d 403, 412.) As we have said, "[c]onsidering an issue for the first time on appeal is often unfair to the trial court, unjust to the opposing party, and contrary to judicial economy because it encourages the embedding of reversible error through silence in the trial court." (In re M.H., supra, 1 Cal.App.5th at pp. 713-714.)
" ' "The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had." ' " (People v. McKinnon (2011) 52 Cal.4th 610, 636.) In this case, had minor raised his objection with the juvenile court, the matter could have been addressed and a CFT meeting could have been ordered. By remaining silent, however, minor has embedded the alleged error in the record. The issue is forfeited, and we see no reason to use our discretion to address an alleged error minor could have corrected at the lower court level had he chosen to do so. (Cf. People v. Trujillo (2015) 60 Cal.4th 850, 859 ["No reason appears why defendant should be permitted to appeal the sentencing court's imposition of such fees after having thus tacitly assented below"].)
In any event, we agree with respondent that the juvenile court "had before it the input that would come from the CFT and the information it needed to make an informed placement decision," and minor has failed to show harm from the failure to convene a CFT meeting. D. Sufficiency of the Probation Report
Next, minor claims the probation report was legally insufficient. We disagree.
It appears this issue is also forfeited by minor's failure to object with the juvenile court. Respondent, however, does not raise forfeiture on appeal, and we consider minor's argument on the merits.
Minor relies on In re L. S. (1990) 220 Cal.App.3d 1100, abrogated on other grounds by People v. Bullock (1994) 26 Cal.App.4th 985, 988-989, in which the court observed, "The information contained in a properly prepared social study report is central to the juvenile court's dispositional decision. While there are no precise requirements outlined in the code or case law as to the contents of the social study, drawing an analogy from what the juvenile court must consider in making a disposition, the probation officer's report should address, in addition to other relevant and material evidence, the age of the minor, his social, personal and behavioral history, the circumstances and gravity of the offense committed by the minor, and the minor's 'previously delinquent history.' [Citation.] The social study should also include 'an exploration of and recommendation to the wide range of alternative facilities potentially available to rehabilitate the minor.' [Citation.] Implicit in this requirement appears to be some insight into the minor's problems in order for the probation officer to make a recommendation with rehabilitation in mind." (In re L.S.at pp. 1104-1105.)
In In re L. S., the probation officer could not prepare a disposition report in time for the hearing on disposition, and he requested a continuance. The juvenile's attorney correctly argued that a social studies report was required, but the juvenile court adjudged the juvenile a ward of the court and committed him to CYA. (In re L. S., supra, 220 Cal.App.3d at p. 1103.) The Court of Appeal reversed, explaining, "On this record, without the benefit of a current social study there is no evaluation or insight into appellant's problems . . . . Given the law's concern for rehabilitation of minors, tempered with accountability [citation], it would seem impossible without the benefit of a current social study for the juvenile court to give the required sensitive consideration to all of the factors required to make any commitment, much less a CYA commitment which requires evidence of a probable benefit to the minor and the inappropriateness of less restrictive alternatives." (Id. at p. 1105.)
In contrast, the juvenile court here did have the benefit of a current social study. As suggested by In re L.S., the report includes "the age of the minor, his social, personal and behavioral history, the circumstances and gravity of the offense committed by the minor, and the minor's 'previously delinquent history,' " and an exploration of potential facilities and treatment options. (220 Cal.App.3d at p. 1104.) Minor asserts, "A psychological evaluation, conducted by a sympathetic and skilled professional, would have produced a far richer and fuller portrait of [minor] and his therapeutic and rehabilitative needs." That may well be so, but this observation does not demonstrate the report that was prepared is deficient as a matter of law. We have reviewed the 15-page probation report and find no basis for reversal. E. Constitutional Challenge to the Disposition
For example, the probation report notes that minor was considered for commitment to the Orin Allen Youth Rehabilitation Facility, but "based on the minor's particularly young age and his need for a more therapeutic environment, Probation did not screen him for this institution."
Minor argues the out-of-home placement should be reversed because "it violates the right of family unity guaranteed by the United States Constitution, as well as California statutes reflecting this constitutional guarantee." Minor forfeited this argument by failing to raise it below.
In any event, "[t]he constitutional privileges attached to the parent-child relationship . . . are hardly absolute." (U.S. v. Myers (2d Cir. 2005) 426 F.3d 117, 122, 125 [reviewing a special condition of supervised release challenged on the ground it encroached on the defendant's constitutionally protected relationship with his son].) A child's interest in living with his or her family is counterbalanced by the compelling government interests in the child's welfare and the safety and protection of the public. (See § 202, subd. (a) [minor may be removed from parents' custody "only when necessary for his or her welfare or for the safety and protection of the public"].) Here, the juvenile court made the required findings for removal (see § 726, subd. (a)), and minor does not claim that the court abused its discretion or that insufficient evidence supported the court's findings. Under these circumstances, we reject minor's constitutional claim that out-of-home placement violates his constitutional right to family unity. F. Cumulative Error
Minor contends the cumulative effect of the alleged errors was prejudicial. In this case, we assumed error in the admission of J.M.'s gang status and found it harmless. Since we found no other error, there can be no cumulative error to warrant reversal. G. Restitution Fine
The juvenile court ordered a restitution fine of $125. Minor's counsel objected, arguing imposition of a restitution fine requires a finding of ability to pay under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The court overruled the objection. Minor renews his challenge to the restitution fine under Dueñas on appeal.
In Dueñas, the defendant, an unemployed, homeless mother with cerebral palsy, had her driver's license suspended because she could not afford to pay $1,088 in assessments stemming from three juvenile citations. Unable to have her license reinstated because she could not pay the fees, the defendant suffered three misdemeanor convictions for driving with a suspended license; each time, she served jail time in lieu of payment but remained liable for the court fees associated with each conviction. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) After pleading no contest to a fourth misdemeanor charge of driving with a suspended license, the defendant asked for a hearing to determine her ability to pay the fees assessed. The trial court determined that the court fees were mandatory, and she had not shown compelling and extraordinary reasons to justify waiving the restitution fine of $150. (Id. at pp. 1162-1163.)
The Court of Appeal reversed, holding, "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments" and "the execution of any restitution fine . . . must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
It is safe to say that Dueñas has met resistance in other appellate courts. (E.g., People v. Caceres (2019) 39 Cal.App.5th 917, 923, 926-927, review den. Jan. 2, 2020 [Dueñas due process analysis did "not justify extending its holding beyond those facts"]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 (Aviles), review den. Dec. 11, 2019 [Dueñas wrongly decided; constitutional challenge to imposition of fines, fees, and assessments should be based on Excessive Fines Clause of Eighth Amendment]; People v. Hicks (2019) 40 Cal.App.5th 320, 325-329, review granted Nov. 26, 2019, S258946 [Dueñas wrong to conclude due process considerations may bar assessments, fines, and fees; such costs and fines do not deny criminal defendants access to courts]; People v. Kopp (2019) 38 Cal.App.5th 47, 95-97 (Kopp), review granted Nov. 13, 2019, S257844 [rejecting Dueñas analysis with respect to restitution fines, which should be analyzed under excessive fines clause, but following Dueñas as to court fees and assessments].)
Respondent argues the $125 restitution fine imposed in this case should be affirmed because it is not excessive under the Eighth Amendment, implicitly urging us to reject the Dueñas analysis in connection with restitution fines (as opposed to nonpunitive assessments). Respondent relies on Kopp, supra, and Aviles, supra. In Kopp, the Court of Appeal reasoned: "We disagree that [the Dueñas] approach should apply to all punitive fines [such as restitution fines] in the first instance. Instead, because these fines are intended to punish defendants, we agree with the People that a defendant should challenge such fines under the excessive fines clause of the Eighth Amendment of the federal constitution and article I, section 17 of the California Constitution. Put differently, there is no due process requirement that the court hold an ability to pay hearing before imposing a punitive fine and only impose the fine if it determines the defendant can afford to pay it." (Kopp, supra, 38 Cal.App.5th at pp. 96-97, fn. omitted; accord Aviles, supra, 39 Cal.App.5th at p. 1061.)
Instead, the Kopp court held a restitution fine should be judged based on "whether [it] is constitutionally disproportionate," taking into account "four considerations: (1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay." (Kopp, supra, 38 Cal.App.5th at p. 97, citing United States v. Bajakajian (1998) 524 U.S. 321, 337-338; see People v. Cowan (2020) 47 Cal.App.5th 32, 47-48.) Although the Kopp defendants had not raised an Eighth Amendment challenge to the restitution fines with the trial court, the court allowed the defendants to "argue the punitive fines imposed are unconstitutionally excessive on remand, if they believe such an argument is appropriate." (Kopp, at p. 98, fn. 25.)
Respondent argues remand is unnecessary because the restitution fine imposed in this case, $125, is not constitutionally excessive on the record before us. But, given that ability to pay is a factor in determining whether a fine is constitutionally disproportionate and the juvenile court here declined to address ability to pay when minor asked for a hearing on the issue, we think the lower court should consider the issue in the first instance. Accordingly, we will remand for the juvenile court to consider minor's argument on ability to pay.
Further, we note the court here imposed a restitution fine greater than the statutory minimum of $100. (§ 730.6, subd. (b)(1).) The statute governing restitution fines for juvenile felons provides, "In setting the amount of the [restitution] fine . . . the court shall consider any relevant factors including, but not limited to, the minor's ability to pay." (Id., subd. (d)(1), italics added.) Although "[e]xpress findings of the court as to the factors bearing on the amount of the fine [are] not . . . required" (id., subd. (e)), we remind the juvenile court that section 730.6, subdivision (d), identifies "relevant factors" including ability to pay, which the court is statutorily required to consider when setting the amount of a restitution fine. Other relevant factors include, but are "not limited to, . . . the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the minor as a result of the offense, and the extent to which others suffered losses as a result of the offense. The losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses such as psychological harm caused by the offense." (§ 730.6, subd. (d)(1).) "The consideration of a minor's ability to pay may include his or her future earning capacity. A minor shall bear the burden of demonstrating a lack of his or her ability to pay." (Id., subd. (d)(2).)
DISPOSITION
The restitution order that minor pay $125 is vacated and the matter is remanded for a hearing on ability to pay. In all other respects, the judgment is affirmed.
/s/_________
Miller, J. WE CONCUR: /s/_________
Kline, P.J. /s/_________
Stewart, J.