Opinion
B190701
4-27-2007
In re N.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.L., Defendant and Appellant.
Patricia Winters, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Roberta L. Davis and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
FACTUAL AND PROCEDURAL STATEMENT OF CASE
In a petition filed on January 17, 2006, under Welfare and Institutions Code section 602, appellant, N.L., was alleged to be a person described in that section because she violated Penal Code section 243, subdivision (d), battery with serious bodily injury, a felony. Appellant denied the allegations. On April 21, 2005, the juvenile court found the petition true and ordered appellant home on probation. The court found the maximum term of confinement was four years and awarded 43 days of predisposition credit.
On April 25, 2006, appellant filed a timely notice of appeal.
The petition was filed based on an incident occurring on November 15, 2005, where without provocation; appellant was alleged to have struck a classmate in the face, fracturing her nose. There was conflicting evidence regarding the provocation with some evidence indicating that the incident started when appellant and her classmate had agreed to a game of "body shots"; where each would hit each other in the body. The incident escalated when the classmate struck appellant in her face, instead of the body per the agreement.
CONTENTIONS AND DISCUSSION
As conditions of probation, the juvenile court judge ordered appellant to not have any "F" Grades, "D" grades or any "U" grades, and have "satisfactory" attendance. (Condition 9.) Appellant contends that she "is in the low average range of intelligence and has serious learning disabilities, including disabilities which place her reading at the second grade level. She is also suffering from depression and other conditions which affect her ability to function in school." Appellant contends that "Condition 9 is unconstitutionally overbroad and should be stricken because she is incapable of compliance." There is no indication that the juvenile court judge was advised of appellants learning and academic difficulties at the time of sentencing. No objection was made to the imposition of probation Condition 9 at the time of sentencing.
There is no indication that the juvenile court judge was advised of appellants learning and academic difficulties at the time of sentencing. There is a good possibility that this appeal could have been avoided had this information been made available. Both appellants and respondents have an interest in eliminating unnecessary appeals and perhaps some communication between the parties prior to sentencing could eliminate these types of appeals in the future.
Respondent notes that appellant failed to object to this condition of probation at the time of sentencing and this objection is therefore waived. Appellants objection to her probation condition however, relates to the fundamental fairness of such a condition in her case. In this regard, we are guided by In re Justin S. (2001) 93 Cal.App.4th 811, 815 which provides that, "Since appellants constitutional claims present `pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court [citation], we conclude that he is not foreclosed from raising them by his failure to object in the juvenile court."
Regarding probation Condition 9, we find In re Robert M (1985) 163 Cal.App.3d 812, to be helpful and instructive in this case. In In re Robert, a probation condition to maintain "`satisfactory grades and citizenship" (id. at p. 815) was found to be fundamentally unfair because Robert was a "13-year-old boy [with an I.Q. of 70], attending seventh grade with second grade vocabulary skills, third grade reading skills and third grade math skills." (Id. at p. 816.) Appellants academic ability has a similar description. For this reason, we will order the condition of probation that appellant not receive any "Fs" or "Ds" be stricken. We find the requirement that appellant not receive any unsatisfactory grades for her behavior in school to be entirely appropriate and probably quite beneficial for this minor. There is no information that she is unable to control her behavior and we believe that if she "acts out" in school, this should be a violation of her probation and brought to the attention of the juvenile court. Although appellant was placed home on probation, appellants mother was less than fully optimistic regarding her ability to manage and control her child.
"The Court: "I have the impression, for a 13-year-old girl to run away like she does, I know she has disobeyed you numerous occasions, as to this report. Thats a lot of disobedience and misbehavior for a 13-year-old child. I just wondering if you feel that youre going to be able to control her.
"Appellants mother: I think so." (Emphasis added.)
Appellants remaining contention on appeal is that the minute order should be corrected to delete any reference to a maximum term of confinement for appellants disposition of home on probation. Respondent agrees with appellant that if a minor is not subjected to physical confinement as the disposition of a juvenile petition, that the maximum term of confinement in the disposition order is not required. Respondents position is that, "Because the presence of this term has no legal effect, appellant is not prejudiced by it, and therefore the term does not need to be stricken." Appellant still wishes the term be stricken because "the maximum term of confinement in this case will likely affect any subsequent maximum term, if in the future, appellant is removed from the physical custody of her parents."
We find no reason to alter the stated disposition in this case. The maximum confinement time is not the juvenile equivalent of a suspended sentence and a "later court has the power to impose a different disposition and aggregate unserved time from prior sustained petitions . . . ." (In re David H. (2003) 106 Cal.App.4th 1131, 1137.)
DISPOSITION
The condition in the judgment that appellant not have any "F" Grades or "D" grades is stricken. In all other respects, the judgment is affirmed.
We Concur:
BOLAND, J.
FLIER, J.