78 Cal.Rptr.3d 150
No. C055693.Court of Appeal of California, Third District.
June 6, 2008. CERTIFIED FOR PARTIAL PUBLICATION][*]
[EDITORS’ NOTE: TEXT NOT CERTIFIED FOR PUBLICATION APPEARS WITH GRAY BACKGROUND BELOW.]
Appeal from the Superior Court of San Joaquin County, No. J61093, Michael D. Coughlan, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.
Minor Lorenzo L. admitted that he was within the provisions of Welfare and Institutions Code section 602 in that he committed kidnapping (Pen. Code,  § 207), street terrorism (§ 186.22, subd. (a)), and assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). He admitted that he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) in the commission of the assault. In exchange, nine counts and allegations were dismissed with a Harvey waiver. The minor was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF),  for a period not to exceed nine years eight months and was awarded 386 days of predispositional credit. He was ordered to make restitution to the victims and to pay a $100 restitution fine (Welf. Inst. Code, § 730.6), a $100 fine to the San Joaquin County General Fund, and a $197.50 penalty assessment (§ 1464). The juvenile court ordered the minor to submit to a psychological evaluation, which was performed shortly thereafter.
On appeal, the minor contends the juvenile court erred by (1) failing to award him predispositional credit for 28 days he spent in an electronic monitoring program (EMP), (2) failing to continue the dispositional hearing so that the psychological evaluation could be considered, (3) failing to grant his request for participation in a tattoo-removal program, and (4) failing to determine his special educational needs. He lastly contends the general fund fine and penalty assessment must be stricken because they were not orally imposed. We shall affirm the judgment and order correction of the dispositional order.
In September 2006, Lodi police officers observed the minor driving and “doing `donuts'” in a truck. When questioned by police, the minor admitted that he had consumed beer several hours before he drove the truck.
Later that month, Juan Cardenas and Pablo Ramos walked toward a bus stop. The minor and two companions drove past them yelling “Norte” and exhibiting gang signs. Shortly thereafter, Cardenas and Ramos saw the minor and one companion approaching them with knives. The minor and the companion began to fight Cardenas and Ramos. The minor fought Cardenas and knocked him to the ground while the companion fought Ramos. When the companion stabbed Ramos, the minor fled and jumped into a car occupied by Nicholaus Baillie and Ryan P. He told them that he had “just stabbed three scraps” and demanded that they take him to the companion’s house. The minor told Baillie and Ryan that he would find them if they spoke with the police.
Lodi police officers detained the minor. He admitted being a Norteño gang member representing “South Side Lodi.” He also claimed he had gotten into a fight with members of the Sureños gang.
The minor contends the juvenile court erred by failing to award him predispositional credit for 28 days he spent in an electronic monitoring program at his residence. We are not persuaded.
“[A] minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing. [Citations.] It is the juvenile court’s duty to calculate the number of days earned, and the court may not delegate that duty. [Citations.]” (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067 [11 Cal.Rptr.3d 85].)
In In re Randy J. (1994) 22 Cal.App.4th 1497 [28 Cal.Rptr.2d 152], this court held that, “[u]nder [In re Eric J. (1979) 25 Cal.3d 522 [159 Cal.Rptr. 317, 601 P.2d 549], the minor] is entitled to credit against subsequent physical confinement only for earlier physical confinement. [Welfare and Institutions Code section] 726 specifically defines `physical confinement’ as excluding time not spent in a secure facility. [Citations.]” (Id. at p. 1505, original italics.)
Specifically, Welfare and Institutions Code section 726, subdivision (c), provides in part: “`Physical confinement’ means placement in a juvenile hall,
ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.”
The minor claims the foregoing is “not an exhaustive list,” citing In re Mikeal D. (1983) 141 Cal.App.3d 710 [190 Cal.Rptr. 602], which provides him only scant support. Mikeal D. rejected the Attorney General’s argument that the list was exhaustive. (Ibid.) But the placement the court effectively added to the list was county jail, on the rationale that “there is hardly anything more physically confining than jail.” (Id. at p. 721.)
The minor offers no rationale for concluding that a residence equipped with an electronic monitor is “physically confining.” (In re Mikeal D., supra, 141 Cal.App.3d at p. 721.) He does not claim that the monitor activated or triggered any sort of physical barrier related to the residence. An ordinary electronic monitoring system is a notification device, not a physical barrier. Any confinement thus created is psychological, rather than physical. We reject the minor’s evident contention that any placement may be “physical confinement,” so long as it imposes some “restraint not shared by the general public.”
It is not necessary to decide whether an adult is entitled to presentence credit for time spent on electronic monitoring following the sunset of an amendment to section 2900.5 that had specifically allowed credit for time spent on a “home detention program in lieu of imprisonment in a county jail,” but had not defined placement in such a program as “physical confinement” within the meaning of Welfare and Institutions Code section 726. (Stats. 1994, ch. 770, §§ 6 7, pp. 3853-3854; but see People v. Anaya (2007) 158 Cal.App.4th 608 [70 Cal.Rptr.3d 47] [adult on home detention following sunset not entitled to credit].) As we have explained, the equal protection principles of In re Eric J., supra, 25 Cal.3d 522, entitle a minor to credit against subsequent physical confinement only for earlier physical confinement. (In re Randy J., supra, 22 Cal.App.4th at p. 1505.) Because the minor’s electronic monitoring was not physical confinement, it does not entitle him to credit against his subsequent confinement. (Ibid.)
II The minor contends the case must be remanded so the juvenile court can consider the psychological evaluation and then make proper findings regarding the removal of tattoos from his body and his educational needs. We consider these points in turn.
The probation officer’s January 2007 report for the dispositional hearing recommended, among other things, “[t]he minor shall have a psychological evaluation completed[.]”
At the contested dispositional hearing on April 6, 2007, the juvenile court stated it was “going to follow the recommendation of the probation department. . . .” Neither court nor counsel addressed the recommendation for a psychological evaluation.
The written dispositional order provides that the minor is “to be evaluated for psychological[.]” Pursuant to this order, a psychological evaluation was performed on April 23, 2007.
Thus, the only order for a psychological evaluation was issued at the dispositional hearing. No previous order for an evaluation had been issued; no evaluation was pending at the time of the hearing; and no party asked the court to continue the hearing until the evaluation was completed.
By failing to request that the dispositional hearing be continued until the juvenile court considered the psychological evaluation, the minor has forfeited any contention that the failure to continue the hearing was error. (See generally People v. Scott (1994) 9 Cal.4th 331, 353.)
In any event, no error occurred. The juvenile court never suggested that a psychological evaluation was necessary for purposes of the dispositional hearing. Contrary to the minor’s claim, the court did not “acknowledge? that it could not adequately assess [the minor’s] psychological condition and how that condition related to the appropriate dispositional, without such an evaluation.”
The minor does not contend that preparation, submission and consideration of a psychological evaluation before the court makes its dispositional order are mandatory. (Cf. In re L. S. (1990)220 Cal.App.3d 1100, 1104 [preparation, submission and consideration of probation department social study are mandatory]; but see People v. Bullock (1994) 26 Cal.App.4th 985, 989 [updated reports].) Thus, conducting the dispositional hearing on the basis of the social study (but not the psychological evaluation) was not an abuse of discretion.
Although the minor is correct that, “`”`[t]o exercise the power of judicial discretion all the material facts in evidence must be known and considered [(Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246)],'”‘” the results of the yet-to-be-conducted psychological evaluation were not in evidence at the dispositional hearing. No abuse of discretion is shown.
The minor’s reliance on People v. Rangel (1999) 70 Cal.App.4th 350 is misplaced. In Rangel, the juvenile court requested a diagnostic evaluation from the former California Youth Authority (CYA), but that agency refused to prepare one on the groundthat the minor was statutorily ineligible for its services. (Pp. 352-353.) On appeal, the court rejected CYA’s determination of ineligibility and remanded the matter so that the juvenile court could again request an evaluation. (Id. at pp. 353-356.)Rangel had no occasion to consider the present scenario, in which th court evidently believed the psychological evaluation was not necessary for purposes of the dispositional hearing.
Removal of tattoos
The probation officer’s report for the dispositional hearing noted that the minor had “several gang-related tattoos.” At the hearing, the minor’s counsel noted that the minor was “heavily tattooed” and was asking for “the tattoos to be removed.” On appeal, the minor claims his counsel’s remarks were arequest for an order that DJF “admit [the minor] to its tattoo removal program.” (Welf. Inst. Code, § 1915; further references to “section 1915” are to this code.) The court did not address the request in the course of its ruling.
“On a silent record, the `trial court is presumed to have been aware of and followed the applicable law’ when exercising its discretion. [Citations.] The appellate court cannot presume error where the record does not establish on its face that the trial courtmisunderstood the scope of its discretion. [Citations.]” (In re Jacob J. (2005)130 Cal.App.4th 429, 437-438.) The present record reveals no such misunderstanding.
In any event, the DJF tattoo removal program requires that candidates for removal “shall be screened by community groups;” that “[t]o be eligible for participation, the presence of the tattoo must be deemed to present either a threat to the personal safety of, or an obstacle to the employability of, the candidate;” and that “[p]riority shall be given to candidates who have a job offer that is contingent upon removal of the tattoo.” (§ 1915, subd. (b).) The statute neither requires court authorization as a prerequisite to tattoo removal, nor allows a court to overturn an adverse decision rendered by a community group during the screening process.
The minor has not shown error, because he has not established that section 1915 entitled him to a court order for tattoo removal. He has not shown prejudice, because he has not established that he would have satisfied the requisite screening process or that a court order, if issued, would have obviated the need for him to do so.
The probation officer’s report for the dispositional hearing recounted the minor’s statement that he “has not been diagnosed for any learning disabilities, and does not have a history of special education. However, the minor mentioned that when he is in school he has a problem concentrating on the work.” Near the end of the dispositional hearing, the juvenile court inquired whether there were any further issues before the court, and the clerk responded, “He has exceptional needs.” The minor’s counsel added that DJF’s community and court liaison, who was present at the hearing, “can be probably of some help. My understanding is that when [the minor] gets to the intake center for [DJF] they’ll run him through a battery of educational and psychological tests and determine any such needs.” The liaison responded that “[t]he judge still needs to make a finding on whether he knows or probation has provided him with information. Yes, he’s an IEP [individual education plan] student or we know for sure that he’s not an IEP student or you don’t know. In any event, he will be [tested].” (Italics added.)
The minor’s counsel then stated, “based on the statements in the probation report about [the minor] having difficulty at school, he’d ask for an educational evaluation of what sorts of drug treatment [he] would need, again, based upon the statements in the probation report.” The prosecutor responded, “I believe that would be required by law, so I have no objection to that. [¶] . . . [¶] I think [the minor] will get a full work-up before he leaves here.”
This exchange followed:
“THE COURT: So at this point in time, I don’t think I have enough information to determine whether or not he is an individual with exceptional needs. That determination will be made while he’s pending acceptance to — no?
“[DJF LIAISON]: The probation report indicates that there has been no IEP done on [the minor]. However, that will [sic] preclude us from conducting our own assessment if there is a need to establish an IEP program then that will be done. But as far as you know, there is no IEP done on [the minor]. So your finding will be through either undetermined or not a special needs.
“PROBATION: Before he leaves, we do have a paper that does get signed by our school staff here at the hall, and they let us know whether or not there is a current IEP or whether he’s not.
“THE COURT: As of this point, it is undetermined by this Court as to whether or not [the minor] is a minor with special needs. [¶] . . . [¶]
“[COUNSEL FOR MINOR]: Would the Court address the treatment as the Court indicates? [The minor] has developed a long history of drugs and there is a number of factors.
“[DJF LIAISON]: Division of Juvenile Justice will do that for you, basically.” Citing In re Angela M. (2003) 111 Cal.App.4th 1392, 1398 fn. 6 (Angela M.), the minor contends “the juvenile court had a duty to consider or determine” whether he had special educational needs. I Angela M., a court-appointed psychologist specifically recommended preparation of an IEP. However, the juvenile court never mentioned the issue of educational needs when it committed Angela to the then-CYA. (Id. at pp. 1395, 1398-1399.) The appellate court remanded the matter to permit the juvenile court to make proper findings on a more fully developed record. (Ibid.)
In the present case, the juvenile court considered the issue of the minor’s educational needs and concluded, with guidance from the DJF liaison, that the present record was not sufficient to allow a determination of educational needs. The liaison went on to assure the court that DJF would establish an IEP if the need arose, and that DJF would also address the issue of drug treatment. The liaison’s advice was consistent with Welfare and Institutions Code section 1120, subdivision (b), which requires DJF to assess the minor’s educational needs upon commitment and annually thereafter until the minor is released on parole. Angela M., supra, 111 Cal.App.4th 1392 does not hold that the juvenile court must not only consider, but must also determine, the special educational needs of every minor committed to DJF. On this record, requiring the court to make the same evaluation that DJF is required to make upon receipt of the minor would serve no useful purpose.
III[*] The minor contends the $100 general fund fine and the $197.50 penalty must be stricken because the juvenile court did not orally pronounce those fines at the dispositional hearing. We conclude the dispositional order must be corrected to identify the penalties attached to the general fund fine.
The probation officer’s report for the dispositional hearing recommended that the minor be committed to DJF and that he pay a $100 restitution fine (Welf. Inst. Code, § 730.6, subd. (b)(1)) plus collection fee, a $100 fine payable to the San Joaquin County General Fund (Welf. Inst. Code, § 730.5), and a penalty of $19.75 for every $10 in fines (except the restitution fine), for a total of $197.50.
At the hearing, the juvenile court stated it was “going to follow the recommendation of the probation department and make it commitment” to DJF for the middle term. The court expressed no intent to depart from the report’s recommendation with respect to fines and fees. After pronouncing the DJF commitment, the maximum period of confinement and credit for time served, and after finding that the minor’s offense was listed in Welfare and Institutions Code section 707, subdivision (b), the court asked the minor’s counsel if he would waive further reading and “incorporate by reference the remaining portions of” the probation officer’s report. In response, counsel raised only a single unrelated issue, thus impliedly consenting to incorporation of the remaining portions of the report, including its recommendation of fines and fees.
The written dispositional order, signed by the juvenile court judge, orders the minor to pay a $100 restitution fine, a $100 fine to the county general fund, and $197.50 per section 1464.
The minor claims no general fund fine was imposed, because “no mention of a general fund fine is contained in the reporter’s transcript[.]” The claim fails, because it overlooks the oral exchange in which the probation report’s recommendation of fines and fees was incorporated by reference.
The minor claims the $197.50 penalty “is incorrectly calculated” because section 1464, the only authority cited in the probation report, authorizes only a 100 percent state penalty assessment ($100) and does not authorize any additional fines or fees. The Attorney General responds that statutes other than section 1464 authorize additional assessments, but he recognizes that those statutes do not account for the entire amount of the award. (E.g., §§ 1465.7, 1465.8; Gov. Code, § 76000.) On remand, the juvenile court shall specify the statutory basis of each component of the penalty and list each component on the dispositional order.
The $197.50 penalty on the general fund fine is vacated and the juvenile court is directed to impose an appropriate penalty. In all other respects, the judgment is affirmed. The court is directed to correct its dispositional order to specify a maximum confinement period of nine years eight months and to identify the statutory components of the penalty on the general fund fine. The court shall forward a certified copy of the corrected order to the Division of Juvenile Facilities.
Raye, Acting P. J., and Cantil-Sakauye, J., concurred.
Appellant’s petition for review by the Supreme Court was denied September 10, 2008, S164907.
Angela M. also relied on the Standards of Judicial Administration, former section 24(h), which has been renumbered without change as section 5.40(h). (Angela M., at p. 1398, fn. 5.) The standard provides that the juvenile court judge should “take responsibility, with the other juvenile court participants at every stage of the child’s case, to ensure that the child’s educational needs are met. . . .” In this case the court worked with the DJF liaison and accepted his assurances that DJF would address the minor’s special educational needs. No error is