This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. No. 29,580 9 JOSHUA G., 10 Child-Appellant. 11
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 12 Don Maddox, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 M. Victoria Wilson, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Jacqueline L. Cooper, Acting Chief Public Defender 19 J.K. Theodosia Johnson, Assi stant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22
MEMORANDUM OPINION 23 SUTIN, Judge. 242 Defendant Joshua G. (Child) was found to be non-amenable to treatment as a 1 juvenile. He argues that the district court improperly relied on facts not in the record 2 and on a predisposition report that was not prepared in conformity with statutory 3 requirements. He states the evidence was insufficient to support a finding of non4 amenability. He further claims that the district court erred when it imposed a 5 contempt sentence to run consecutively to his sentence for second degree murder. We 6 hold that objections to the district court’s re liance on facts not in the record and to the 7 sentence for contempt were not properly preserved. We further hold that the 8 predisposition report did not comply with statutory requirements, and we reverse 9 Child’s sentence and remand for a new amenability hearing. 10
BACKGROUND 11 Child was charged with first degree murd er, conspiracy to commit first degree 12 murder, attempt to commit armed robbery, conspiracy to commit armed robbery, and 13 tampering with evidence. Child was seventeen years old when he pled guilty to 14 second degree murder, with all other charges being dismissed. 15 According to facts established at a preliminary hearing, store clerk Virginia 16 Land was shot and killed in the Allsup’s convenience store in Lovington, New 17 Mexico. Jonathan Silva and Juan Nava picked up Child and Israel Marquez from a 18 residence and dropped them off near an alley, and Child and Marquez walked over to 193 the Allsup’s. Child was armed with a knifeand entered the store with Marquez, who 1 was armed with a shotgun. Marquez demanded money from the clerk, and when she 2 refused, he shot her. 3 Child was charged as a serious youthfuloffender, but following his guilty plea, 4 he was adjudicated as a youthful offender, pursuant to the Children’s Code, NMSA 5 1978, §§ 32A-1-1 to -24-5 (1977, as amended through 2011). The court ordered a 6 fifteen-day diagnostic commitment in order to assist the court in determining Child’s 7 amenability to treatment and disposition of the case. The Children, Youth, and 8 Families Department (CYFD) completed a diagnostic/psychological evaluation for the 9 purpose of diagnosis and disposition reco mmendation (the predisposition report). At 10 an amenability hearing that followed, the district court reviewed the factors in Section 11 32A-2-20(C) and found that Child was not am enable to rehabilitation in the juvenile 12 system and should be sentenced as an adult. Child received the maximum sentence 13 of fifteen years to run consecutively to a six-month sentence for contempt followed 14 by two years of parole. 15 Child raises the following arguments on a ppeal: (1) his due process rights were 16 violated when the districtcourt relied on facts not in the record to find him non17 amenable to treatment; (2) th e district court failed to use reports mandated by statute 18 and State v. Jose S. , 2007-NMCA-146, 142 N.M. 829, 171 P.3d 768; (3) the evidence 194 was insufficient to find Child non-amenable to rehabilitation; and (4) the district court 1 erred when it imposed an a dult sentence for contempt. 25 DISCUSSION 1 A. Relying on Facts Not in the Record 2 Child argues that the district court erre d when it relied on facts not in the record 3 to find him non-amenable to treatment. The State asserts that Child did not properly 4 preserve this issue for appellate review. We agree with the State. 5
1. Preservation of the Issue 6 “To preserve a question for review it mu st appear that a ruling or decision by 7 the district court was fairly invoked[.] ” Rule 12-216(A) NMRA. “[A]n objection 8 must be made with sufficient specificity to alert the mind of the trial court to the 9 claimed error[.]” State v. Riley , 2010-NMSC-005, ¶ 24, 147 N.M. 557, 226 P.3d 656 10 (internal quotation marks and citation omitted). “The primary purposes of the 11 preservation requirement are (1) to alert the trial court to a claim of error so that it has 12 an opportunity to correct any mistake, and (2) to give the opposing party a fair 13 opportunity to respond and s how why the court should rule against the objector.” 14 State v. Montoya , 2005-NMCA-005, ¶ 7, 136 N.M. 674, 104 P.3d 540 (internal 15 quotation marks and citation omitted). 16 At the amenability hearing, the State argued that Child should be sentenced as 17 an adult based on the circumstances and facts of the case, the concession Child 18 received by his plea agreement, and his willingne ss to participate in the incident where 196 it was contemplated that someone would bekilled. Child argued that the evidence 1 was insufficient for a finding of non-amenabilityand that the State failed to meet its 2 burden of proof that Child was not amenable to treatment. 3 In finding Child non-amenable to rehabilitation within the juvenile system, the 4 district court stated that it relied on its familia rity with the crime. In that regard, the 5 court stated that it considered testimony about the incident, how the incident came 6 about, and the manner in which the incident was committed. The court also stated that 7 it considered that the crime was committed w ith a firearm in an aggressive, violent, 8 and premeditated, or willful manner and that it was agains t a person. The court also 9 considered information about Child, including his demeanor and the way he had 10 testified. Child points out that these fact s were not in the record because they came 11 from Child’s co-defendant’s trial at which th e same judge presided. The district court 12 further stated that it considered information from the predisposition report, Child’s 13 history, and the court’s familiarity with the facilities that are available. 14 Child argues that his objection to the district court relying on facts not in the 15 record was properly preserved because he e ssentially moved for a directed verdict of 16 amenability after the State pr esented its argument. We disagree. At the amenability 17 hearing, Child never argued that the di strict court was improperly relying on 18 information from the co-defendant’s trial. Child never objected to the sources of 197 information on which the court was rely ing other than the predisposition report. 1 Child’s argument was based on insufficiencyof the evidence to support a finding of 2 non-amenability. We hold that the argument l acked the specificity required to alert 3 the district court as to error in relying on facts not in the record. 4
2. Fundamental Error 5 In his brief in chief, Child mentions, in passing, that it was fundamental error 6 for the district court to rely on facts that we re not in the record. Child states in his 7 reply brief that even if the issue was not properly preserved, this Court may review the 8 issue for fundamental error. 9 The appellate court has discretion to consider questions involving fundamental 10 error. Rule 12-216(B)(2). “[ T]his Court exercises its disc retion to review a claim for 11 fundamental error in only rare instances and solely to prevent a miscarriage of justice 12 where some fundamental right has been invaded.” State v. Laney , 2003-NMCA-144, 13 ¶ 47, 134 N.M. 648, 81 P.3d 591. “[T]he party asserting e rror must demonstrate the 14 existence of circumstances that shock the conscience or implicate a fundamental 15 unfairness within the system that would undermine judicial integrity if left 16 unchecked.” Id. (internal quotation marks and citation omitted). 17 Child presents no argument or authority tosupport his statement that the district 18 court’s reliance on facts not inthe record createdfundamental error; therefore, we 198 conclude that this is not a circumstance that warrants review for fundamental error. 1 See, e.g., State v. Villa , 2004-NMSC-031, ¶ 16, 136 N.M. 367, 98 P.3d 1017 2 (indicating that the party who raises fundamental error has the burden of showing that 3 some fundamental right has been invaded); State v. Casillas , 2009-NMCA-034, ¶ 12, 4 145 N.M. 783, 205 P.3d 830 (stating that, becausethe defendant faile d to develop his 5 arguments on appeal, those arguments would not be considered). 6 B. Report Required Under Section 32A-2-17(A) 7 Child argues that the predisposition report did not comply with statutory 8 requirements. Whether the predisposition report relied on in this case complied with 9 the statute is an issue of law. Issues of law are reviewed de novo. City of Aztec v. 10 Gurule , 2010-NMSC-006, ¶ 5, 147 N.M. 693, 228 P.3d 477. 11
1. Preservation of the Issue 12 The State argues that Child failed to preserve his objection that the 13 predisposition report failed to meet statutor y requirements. We disagree and hold that 14 the district court was alerted to Child’s argument. 15 On the ground that the predisposition report did not address amenability, 16 defense counsel requested another predis position report. Later in the amenability 17 hearing, defense counsel stated that the predisposition report was no different than the 18 reports that are created on all juveniles th at are sent to the facility for a diagnostic 199 evaluation. Defense counsel did not specifically reference the applicable statute, 1 Section 32A-2-17(A)(3), when asserting th at the report did not address the issue of 2 amenability, but his twice-expressed c oncern that the report did not address 3 amenability and his request for another report sufficiently alerted the district court to 4 his objection to using the report when determining Child’s amenability. 5 The State argues that the objection to reliance on the predisposition report was 6 not preserved because defense counsel re lied on the report to support a finding that 7 Child was amenable to treatme nt when he asked both of his witnesses to comment on 8 it. Defense counsel asked both witnesses if, in their opinions, the issues raised in the 9 report could be addressed in a juvenile facility. This did not waive his previous 10 objections to using the report for amenab ility. Indeed, defense counsel requested 11 witness Cindy Garcia, who was a juvenile probation and parole officer, to confirm that 12 the report did not appear to be an amenability report. 13 2. Applicable Subsection of the Statute 14 Section 32A-2-17(A) requires predispos ition reports to be obtained before 15 disposition or sentencing for serious youthf ul offenders and youthful offenders. See 16 also Jose S. , 2007-NMCA-146, ¶¶ 15-16 (holding that predisposition reports are 17 required despite permissive language in the statute). A “serious youthful offender” 18 is defined as “an individual fifteen to eighteen years of age who is charged with and 1910 indicted or bound over for trial on first degree murder.” Section 32A-2-3(H). A 1 “youthful offender” is “a delinquent child s ubject to adult or juvenile sanctions who 2 is . . . fourteen to eighteen years of age at the time of the offense” and who is 3 adjudicated for any one of several enumerated offenses listed in the statute, including 4 second degree murder. Section 32A-2-3(J)(1). 5 Under Section 32A-2-17(A)(2), CYFD must “prepare a predisposition report 6 for a serious youthful offender who is convict ed of an offense other than first degree 7 murder[.]” Under Section 32A-2-17(A)(3 ), CYFD must “prepare a predisposition 8 report for a youthful offender concerni ng the youthful offender’s amenability to 9 treatment” when the court makes Section 32A -2-20 findings for imposition of an adult 10 sentence. The State argues that Child was properly classified as a serious youthful 11 offender and, therefore, a predispos ition report concerning amenability was not 12 required because Section 32A-2-17(A)(2), not Section 32A-2-17(A)(3), applied to 13 Child. We reject this argument because the State agreed to the classification of Child 14 as a youthful offender and because the argument is not supported by the Children’s 15 Code and runs contrary to State v. Jones , 2010-NMSC-012, 148 N.M. 1, 229 P.3d 16
474. 17 Section 32A-2-20(G) states that a child originally charged with first degree 18 murder but instead is convicted of one of the offenses enumerated in Section 32A-2- 191 Section 32A-2-20(G) mistakenly refers to Section 32A-2-3(I). 19 11 3(J) 1 is subject to the disposition requirement s for a youthful offender found in Section 1 32A-2-20. Section 32A-2-20(B) sets forth the findings that the district court is 2 required to make before invoking an adult sentence. Those findings are (1) that the 3 youthful offender “is not amenable to treatment or rehabilitation as a child in available 4 facilities[,]” and (2) that the youthful offe nder “is not eligible for commitment to an 5 institution for children with developmental disabilities or mental disorders.” In Jones , 6 our Supreme Court stated that “a serious youthful offender who is adjudicated for a 7 delinquent act other than first[]degree murder must be sentenced as either a youthful 8 offender or a delinquent offender, depending on the natureof the adjudicated act.” 9 2010-NMSC-012, ¶ 19 (emphasis added). Although Child was charged with first 10 degree murder, he was convicted of one of the enumerated offenses in Section 32A-2- 11 3(J) (second degree murder); therefore, he is subject to the disposition requirements 12 of Section 32A-2-20 and the predisposition report requirements of Sections 32A-2- 13 17(A)(3). 14 3. Necessity for and Sufficiency of the Predisposition Report 15 The requirement for a predisposition report concerning amenability and the 16 procedure for finding that a child is not amenable to treatment was clarified in Jose 1712 S. In Jose S. , the district court heard expert te stimony to the contrary and yet, found 1 that the defendant was not amenable to treatment and sentenced him as an adult 2 without consulting a predisposition report concerning amenability required under 3 Section 32A-2-17(A)(3). Jose S. , 2007-NMCA-146, ¶¶ 5-6. On appeal, this Court 4 held that a predisposition report concerning amenability is required before sentencing 5 a child as an adult because the require ment “advances the public policy favoring 6 rehabilitation and treatment over punishment and deterrence in most juvenile cases.” 7 Id. ¶ 16. The Court favored “obtaining more in formation, not less, to guide the trial 8 court in making an educated and appropriate disposition.” Id. 9 The district court stated that the report obtained on Child “did not address the 10 issue of amenability.” The district court also acknowledged that the recommendations 11 provided in the report “[were] not . . . directly on point, specifically as to 12 amenability,” even though the court stated its intent for the report was for that to be 13 the result. We agree with the district court that the predisposition report that was 14 obtained on Child did not provide the court w ith necessary information for the court’s 15 evaluation of amenability. 16 The State argues that the predisposition report was adequate because it need not 17 make a recommendation as to amenability nor state an opinion regarding Child’s 18 amenability to treatment. The issue beforethis Court, however, is not whether the 192If it was not always the requirement, a predisposition report for a youthful offender 19 does indeed now require an expert opinion regarding amen ability. The details are set 20 out later in this Opinion. SeeForm 10-496D NMRA (effective Sept. 9, 2011). 21 13 predisposition report in this instance had to contain a specific recommendation or 1 opinion regarding amenability2 , but whether the predisposition report had to provide 2 the district court with the necessary info rmation to assist it in making its amenability 3 finding. Here, the predisposition report regarding Child failed to provide the district 4 court with necessary information for the court’s evaluation of amenability. 5 The predisposition report contained so me, but not all, of the necessary 6 information. Section 32A-2-20(C) outlines th e following factors that the district court 7 is required to consider when making an amenability finding: 8 (1) the seriousness of the alleged offense; 9 (2) whether the alleged offense was committed in an aggressive, 10 violent, premeditated[,] or willful manner; 11 (3) whether a firearm was used to commit the alleged offense; 12 (4) whether the alleged offense was against persons or against 13 property, greater weight being given to offenses against persons, 14 especially if personal injury resulted; 15 (5) the maturity of the child as determined by consideration of the 16 child’s home, environmental situati on, social and emotional health, 17 pattern of living, brain development, trauma history[,] and disability; 18 (6) the record and previous history of the child; 1914 (7) the prospects for adequate protection of the public and the 1 likelihood of reasonable rehabilitation of the child by the use of 2 procedures, services[,] and facilities available; and 3 (8) any other relevant factor, provide d that factor is stated on the 4 record. 5 The predisposition report discussed circumst ances that can be read to relate to 6 factors one through four and perhaps six of Section 32A-2-20(C) in the recitation of 7 Child’s offense history. The seriousness of the offense was provided by noting Child 8 pled to second degree murder; whether the alleged offense was committed in an 9 aggressive, violent, premeditated, or w illful manner was provided by noting that the 10 store clerk was killed, which indicates an aggressive and/or violent incident; whether 11 a firearm was used was provided by noting th at the store clerk was shot; and whether 12 the alleged offense was against persons or against property was provided by noting 13 that the store clerk, a person, was shot resulting in death. The predisposition report 14 also discussed circumstances that can be read to relate to factor five of Section 32A-2- 15 20(C) in that it addressed Child’s maturityby providing information related to Child’s 16 social history, past medical history, ment al status and evaluation, and education and 17 health status. 18 Significantly, however, the predisposition report did not provide any 19 information relating to the seventh factor of Section 32A-2-20(C): “the prospects for 2015 adequate protection of the public and the likelihood of reasonable rehabilitation of . . . 1 [C]hild by the use of procedur es, services[,] and facilities currently available[.]” Thus, 2 the report did not contain necessary information for the district court to fully and 3 properly evaluate amenability. This Court ha s explained the importance of the district 4 court obtaining necessary information in order to make an edu cated and appropriate 5 decision as to a youthful offender’s amenability to treatment. See Jose S. , 2007- 6 NMCA-146, ¶ 16 (stating that the district c ourt should have information to guide it in 7 making educated and appropriate dispositi on decisions). The report did not provide 8 the district court with the necessary info rmation to properly consider the seventh 9 factor of Section 32A-2-20(C). 10 The State argues, nonetheless, that the di strict court is free to disregard expert 11 testimony. See State v. Gonzales , 2001-NMCA-025, ¶ 40, 130 N.M. 341, 24 P.3d 776 12 (recognizing that the district court is entitle d to disregard evidence presented by either 13 party and expert testimony), overruled on other grounds by State v. Rudy B. , 2009- 14 NMCA-104, 147 N.M. 45, 216 P.3d 810, rev’d on other grounds by2010-NMSC-045, 15 149 N.M. 22, 243 P.3d 726. In pointing th is out, the State asserts that the 16 predisposition report was adequate because the district court would have been able to 17 disregard any opinion contained in the report. The discretion, if any, to disregard 18 expert testimony in an amenability evaluation context, however, does not give the 1916 district court discretion to make an amenability finding without a predisposition report 1 that provides it with the information required under the rehabilitation-specific seventh 2 factor in Section 32A-2-20(C). The report obtained on Child lacked that information. 3 We hold that the predisposition report on which the district court relied did not 4 provide the court with the full gamut of information necessary for it to evaluate 5 amenability. Therefore, the report was inadequate concerning amenability as required 6 by Section 32A-2-17(A)(3). The inadequacy of the predisposition report is borne out 7 by our Supreme Court’s recent adoption of a form for an order for evaluation of 8 amenability to treatment for a youthful offender in Supreme Court Order No. 11-8300- 9 030, effective September 9, 2011. The orde r requires that the amenability evaluator 10 be a doctoral-level, licensed psychol ogist and reads in pertinent part: 11 the report shall contain, at a minimum, an evaluation whether the child 12 is amenable to treatment or rehabilitation as a child in available facilities, 13 whether the child is eligible for co mmitment to an institution for children 14 with developmental disabilities or mental disorders, and a recommended 15 course of action regarding dispositi on in youthful offender proceedings. 16 The report shall address the following factors: 17 (a) the seriousness of the alleged offense; 18 (b) whether the alleged o ffense was committed in an 19 aggressive, violent, premeditated[,] or willful manner; 20 (c) whether a firearm was used to commit the alleged offense; 2117 (d) whether the alleged offense was against persons or against 1 property, greater weight being given to offenses against persons, 2 especially if personal injury resulted; 3 (e) the maturity of the child as determined by consideration of 4 the child’s home, environmental situation, social and emotional health, 5 pattern of living, brain development, trauma history[,] and disability; 6 (f) the record and previous history of the child; 7 (g) the prospects for adequate protection of the public and the 8 likelihood of reasonable rehabilitation of the child by the use of 9 procedures, services[,] and fac ilities currently available; and 10 (h) any other factor relevant to amenability. 11
Form 10-496D. 12 We reverse on this issue and remand for a new amenability hearing. On 13 remand, for its amenability determination the district court is to obtain a 14 predisposition report concerning Child’s amen ability that provides the court with the 15 information required by Form 10-496D. The court is to make findings that support 16 its determination. Because we reverse on this issue and remand for a new amenability 17 hearing, we need not address Child’s argument that the evid ence at the amenability 18 hearing was insufficient to find him non-amenable to treatment. 19 C. Sentence for Contempt 20 Child argues that the district court sent enced him to six months for a magistrate 21 court contempt order resulting in an ille gal sentence. In support of his argument, 2218 Child quotes the district court’s judgment and sentence: “It is the judgment and 1 sentence of the [district court] that [Child ] serve a term of [f ifteen] years in the 2 Penitentiary of New Mexico, said sentence to run consecutively, for a total of [fifteen] 3 years and six months, followed by two years parole.” Child also argues that the 4 district court could not sentence him for c ontempt because it does not comply with the 5 purposes of the Children’s Code and that th e district court has no authority to impose 6 an adult sentence for contempt. 7 We reject Child’s argument. The district court did not sentence Child for 8 contempt. It merely ran the second degree murder sentence of the district court 9 consecutive to the contempt sentence of the magistrate court. The clarification of 10 which court imposed the contempt senten ce is evidenced by the district court’s 11 amended judgment and sentence, which states: “It is the judgment and sentence of the 12 [district court] that [Child] serve a term of [fifteen] years in the Penitentiary of New 13 Mexico, said sentence to run consecutively to the six month sentence imposed for 14 Contempt of Court by The Honorable William G.W. Shoobridge, for a total of 15 [fifteen] years and six months, followed by tw o years parole.” Nothing in the record 16 indicates that Child appealed the magistrate court’s contem pt sentence. Therefore, it 17 stands as a valid sentence. The record shows that the district court’s felony sentence 18 ran consecutive to the magistrate court’s contempt sentence. 1919 CONCLUSION 1 We reverse Child’s sentence and remandto the district court for a new 2 amenability hearing after a predisposition report is prepared and submitted that 3 complies with statutory requirements, as discussed in this Opinion. 4
IT IS SO ORDERED. 5

__________________________________ 6 JONATHAN B. SUTIN, Judge 7
WE CONCUR: 8

_________________________________ 9 CYNTHIA A. FRY, Judge 10

_________________________________ 11 MICHAEL E. VIGIL, Judge 12