Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 02CEJ601091, Martin C. Suits, Judge, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Carol A. Koenig, 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 Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Dawson, J. and Kane, J.
Andre T. was committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ), formerly known as the California Youth Authority, after numerous encounters with law enforcement and numerous failures on parole. He argues the juvenile court abused its discretion when it committed him to DCRJJ and erred when it failed to conclude he had special educational needs. We affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
The primary issue in this case is whether the juvenile court abused its discretion in determining that a commitment to DCRJJ was an appropriate disposition for Andre. To analyze the issue, a thorough review of the information before the juvenile court is required.
On November 1, 2005, a petition was filed alleging that Andre came within the provisions of Welfare and Institutions Code section 602 (section 602 petition) because he had violated Penal Code section 243.4, subdivision (a), misdemeanor sexual battery by restraint. Documents in the file indicate that 16-year-old Andre was walking with a 14-year-old girl on the way to school when he forced her into an alley, tried to kiss her, put his hand under her shirt, touching her breast. The victim resisted and eventually escaped. Andre admitted the allegation was true.
The report and recommendation of the probation officer prepared for the detention hearing established that Andre had several prior legal contacts. The first incident occurred in April 2002. A 20-year-old female was walking on the sidewalk when 12-year-old Andre pulled down her shirt, revealing a breast. Andre tried to place his mouth on her breast before the victim escaped. Later that same day, Andre exhibited his penis to a 21-year-old woman in a grocery store. Andre admitted a misdemeanor violation of Penal Code section 243.4, subdivision (d)(1), sexual battery. The disposition in that case required Andre to attend a sex offender program, which later was modified to require individual counseling.
Later in 2002, former subdivision (d)(1) of Penal Code section 243.4 was redesignated as subdivision (e)(1). (Stats. 2002, ch. 302, § 1.)
Andre’s second legal contact occurred in February 2003 when Andre attempted to take a personal compact disc player from the victim. When the victim resisted, Andre struck him in the face. The disposition required Andre to attend an aggressive offender program. Andre successfully completed the terms and conditions of probation for these incidents.
The probation officer’s report also stated that Andre was in good physical health, although he has only one functioning kidney. Andre suffered severe injuries when he was six years old when a sibling pushed him out of a second-story window at their residence. Andre’s injuries included a ruptured spleen and a fractured skull, requiring extensive surgery. Andre received speech therapy and counseling as a result of this incident. Andre was prescribed Zoloft for depression for a period of time, ending when he was 10 years old.
The probation officer recommended a psychological evaluation be completed because of Andre’s escalating criminal behavior and his health history. The juvenile court agreed and continued the disposition to permit the evaluation.
The psychologist’s report stated that Andre and his mother were unaware of any brain damage that resulted from the incident when Andre was six years old. They also reported that Andre did not have any behavioral problems while receiving medication (Zoloft) when he was younger. Andre’s mother blamed Andre’s problems on a lack of medication. She also reported that Andre and his sister “do whatever they want to regardless of what she says, against her will.” She also stated that although the previous sexual assault charges were false, she did catch Andre pulling on her underwear one night. Thereafter, the doors to her and her daughter’s bedrooms were locked at night.
The psychologist noted that Andre had severe developmental delays, “which are likely to significantly affect his decision-making, impulse control, and interaction with others. It was clear that Andre was unable to conceptualize why his behavior was inappropriate, hurtful, or destructive. Andre’s strong inability to accept full responsibility and have insight about his offense appears to be somewhat due to limited intellectual capacity and the factors noted above.” Andre was diagnosed with intermittent explosive disorder, possibly related to a medical condition, relational problems not otherwise specified, parent-child relational problems, and academic problems.
The psychologist concluded that Andre was likely to continue to act impulsively and aggressively unless there was clinical intervention. The psychologist opined that Andre’s significant developmental delays were attributable to the head trauma he suffered when he was six years old. The psychologist recommended that Andre (1) be assessed by his school for special educational needs, (2) receive an updated neuropsychological evaluation to assess his brain development, (3) be referred to a psychiatrist for a medication evaluation, (4) obtain individual and family counseling, and (5) enroll in a sex-offender program. The report also recommended that Andre’s mother attend parenting classes.
After considering the psychologist’s report, the juvenile court determined at the January 23, 2006, dispositional hearing that Andre should be referred to a psychiatrist for medication and be placed on probation for one year, placed on the electronic monitoring program for 60 days, attend a 12-week sexual awareness program, and participate in individual and family counseling.
On May 5, 2006, a section 602 petition was filed alleging that Andre committed misdemeanor sexual battery, in violation of Penal Code section 243.4, subdivision (e)(1). This incident involved the minor approaching a student walking towards her middle school and touching the victim’s buttocks. The next day, Andre followed the victim to her home, prompting the report to the police. Andre admitted the violation. The probation officer’s addendum report indicated that Andre was not taking psychotropic medications, which caused Andre’s mother to become frustrated and angry. Apparently, her efforts to obtain medication for Andre had failed. Andre was receiving therapy at the time of the offense. Andre was not accepted for placement because his mother wanted him at home, and he was eligible for an 18-month sexual offender program. At the May 31, 2006, dispositional hearing, the juvenile court placed Andre on probation until further order of the court, placed him in the electronic monitoring program for 60 days, and ordered him to complete the 18-month sexual offender treatment program.
On March 5, 2007, a section 602 petition was filed alleging that on March 1, 2007, Andre committed second degree robbery, in violation of Penal Code section 211, and during the robbery also committed misdemeanor sexual battery, in violation of Penal Code section 243.4, subdivision (e)(1). The matter was referred to the Central Valley Regional Center for evaluation prior to the jurisdictional hearing in the matter. It is unclear if the evaluation was completed.
On April 5, 2007, three months before Andre’s 18th birthday, a section 602 petition was filed alleging that Andre had committed second degree robbery on February 22, 2007, in violation of Penal Code section 211.
On May 14, 2007, a section 602 petition was filed alleging that Andre committed misdemeanor indecent exposure on January 6, 2007, in violation of Penal Code section 314.1. The juvenile court ordered a competency evaluation for Andre. The report indicated that Andre presented as normal, with borderline intellectual functioning, fair insight, but poor judgment. He was diagnosed with intermittent explosive disorder, and child onset conduct disorder. Andre was prescribed medication for aggression, brain trauma, and mixed moods. The psychiatrist determined that Andre was not a gravely disabled minor within the meaning of Welfare and Institutions Code section 5585.25. Andre was found to be competent to stand trial.
Andre admitted he committed second degree robbery and sexual battery on March 1, 2007. The allegations in the other two petitions were dismissed on motion of the district attorney.
The report of the probation officer prepared for the dispositional hearing provided details of the offenses. This report indicated that a female high school student was walking to school when Andre came up behind her and grabbed her right buttocks. He then spun her around so she was facing him and took her purse. Andre was arrested shortly thereafter. He admitted the offense as described by the victim. He stated he took the purse because his girlfriend was pregnant and he needed money. He also stated that he touched the victim’s buttocks because he had “urges” he could not control. Andre also showed the officers where he hid the victim’s wallet.
When officers searched Andre’s hiding place, a purse belonging to another victim was found. This discovery led to the filing of the section 602 petition on April 5th. The victim of this offense stated that she was tending to her three-year-old son while waiting for a bus when Andre approached her and stole her purse. Andre acknowledged that he also stole this purse.
The indecent exposure allegation occurred when Andre allegedly followed a 14-year-old girl as she was walking on the sidewalk. The victim stopped to permit Andre to pass. When Andre also stopped, the victim called for emergency assistance. Andre then walked past the victim with his penis exposed.
Andre’s mother stated she did not know what Andre was doing and was not aware he had exposed himself to the 14-year-old victim.
The probation officer’s report affirmed that Andre was ordered to complete a sex offender treatment program in 2006. Andre enrolled in a program but was late to the first group session and not admitted. Andre slammed the door as he left. The therapist at this session, who had dealt with Andre in the past, stated that he felt Andre was “not structured enough to make out-patient groups,” and was a “very high risk offender.”
Andre admitted to smoking marijuana every other day for the past three years. His mother stated that Andre has been smoking marijuana daily for the past two to three years.
Andre and his mother previously had denied that Andre used any illegal substances.
This report also stated that in addition to the above described offenses, Andre had been cited for battery in 2000 as a result of a fight at school. He was ordered to attend counseling as a result of this offense. In 2001 Andre was cited for sexual battery as a result of touching the buttocks of a young woman. He completed a sexual awareness class as a result of this offense.
The probation officer recommended that Andre be placed at DCRJJ. The reasons for this recommendation were: (1) Andre’s history of sexually deviant behavior involving attacks on strangers; (2) Andre was ordered to complete a sex offender treatment program on two occasions and failed to do so; (3) a therapist who was involved with Andre’s treatment described him as a “high risk offender”; (4) Andre was ineligible for local custodial programs because he had turned 18; (5) a failure to ensure Andre received sex offender counseling services would result in escalating sexual misconduct; (6) Andre could receive sex offender counseling with a DCRJJ commitment; and (6) it appeared that all local sanctions had been exhausted.
Having been informed of the pending DCRJJ recommendation, Andre’s counsel submitted a statement in mitigation to the juvenile court. In this statement counsel noted that Andre (1) admitted he committed the acts alleged in the petition, (2) abused marijuana, and (3) had mental and physical disabilities that affected his ability to reason as a result of the incident that occurred when he was six years old. Counsel referred to Andre’s psychiatric diagnosis, stated there had not been any reports of Andre abusing his younger sister with whom he lived, and stated Andre had excellent behavior at the Juvenile Justice Campus. Counsel asserted that a commitment to DCRJJ was not warranted because less restrictive local alternatives were available.
At the dispositional hearing, Andre’s counsel suggested a local drug offender treatment program or perhaps a group home for sex offenders. He also emphasized the brain trauma Andre received when he was six years old.
The juvenile court noted that Andre could receive sex offender treatment at DCRJJ and stated it felt previous local programs were ineffective. The juvenile court found Andre to be a danger to others, and no local program could adequately supervise him. The juvenile court adjudged Andre a ward of the court, placed him on probation until further order of the court, and committed Andre to DCRJJ for a maximum period of confinement of five years eight months.
DISCUSSION
I. Abuse of Discretion
Andre recognizes that the juvenile court had discretion in determining whether to place him with DCRJJ. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) “The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court’s decision. [Citations.] Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a [DCRJJ] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] A [DCRJJ] commitment may be considered, however, without previous resort to less restrictive placements. [Citations.]” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396 (Angela M.).)
Applying this standard, it is clear the juvenile court did not abuse its discretion in committing Andre to DCRJJ. Andre’s escalating misconduct, including continued inappropriate sexual touching of girls and young women, made it obvious that Andre needed sexual offender treatment. He could obtain that treatment during a DCRJJ commitment. There was, therefore, a probable benefit to Andre of commitment to DCRJJ. The juvenile court also concluded local programs could not meet Andre’s needs. The probation report, reviewed by the juvenile court, stated that because of Andre’s age, local custodial programs were inappropriate, and other less restrictive local alternatives had been exhausted.
This finding is based on the juvenile court’s own knowledge of programs available at DCRJJ and representations of the probation officer. We reject Andre’s argument that the probable benefit finding is not supported by substantial evidence.
Andre’s counsel argued in the trial court for placement in a group home that provided treatment for sex offenders. However, while we assume such group home programs are available, although counsel failed to identify a specific program, the juvenile court was not required to place Andre in such a program. Nor is there anything in the record to suggest such programs are suitable for an offender who is over 18 years of age, such as Andre. Not only did Andre repeatedly commit sexual batteries, he also committed other legal violations, including two robberies. The juvenile court did not abuse its discretion in determining that these additional offenses rendered a group home placement inappropriate.
II. Andre’s Educational Needs
“Education Code section 56000 declares that ‘all individuals with exceptional needs have a right to participate in free appropriate public education .…’ ‘Individuals with exceptional needs’ includes any child who is ‘[i]dentified by an individualized education program [IEP] team as a child with a disability,’ as defined by the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.), whose impairment ‘requires instruction, services, or both which cannot be provided with modification of the regular school program’ and who meets certain other prescribed eligibility criteria. (Ed. Code, § 56026, subds. (a), (b), (c) & (d).) A child qualifies as an individual with exceptional needs if the IEP team determines ‘the degree of the pupil’s impairment … requires special education in one or more of the program options authorized by Section 56361 of the Education Code.’ (Cal. Code Regs., tit. 5, § 3030.)” (Angela M., supra, 111 Cal.App.4th at pp. 1397-1398, fns. omitted.)
Angela M. held that prior to committing a minor to DCRJJ, the juvenile court has an obligation to determine whether the minor has special education needs. (Angela M., supra, 111 Cal.App.4th at p. 1398.) This holding was based on California Rules of Court, former rule 1493(e)(5), which, at the time, stated that the juvenile court “must consider the educational needs of the child .…” In 2004, former rule 1493(e)(5) was amended to remove this requirement. The current renumbered version of this rule is found in rule 5.790(f)(5), which states, “The court must consider whether it is necessary to limit the right of the parent or guardian to make educational decisions for the child. If the court limits this right, it must follow the procedures stated in rule 5.650.” Angela M.’s holding, therefore, no longer is supported by the California Rules of Court.
All further references to rules are to the California Rules of Court.
Andre recognizes the amendments to the California Rules of Court, but asserts that authority for this same requirement can be found in standard 5.40 of the California Standards of Judicial Administration. In relevant part, this standard states that the juvenile court 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 .… Each child under the jurisdiction of the juvenile court with exceptional needs has the right to receive a free, appropriate public education, specially designed, at no cost to the parents, to meet the child’s unique special education needs.” (Cal. Stds. Jud. Admin., § 5.40(h)(1).) This standard also requires the juvenile court to “Provide oversight of the social service and probation agencies to ensure that a child’s educational rights are investigated, reported, and monitored.… A child who comes before the court and is suspected of having exceptional needs or other educational disabilities should be referred in writing for an assessment to the child’s school principal or to the school district’s special education office.” (Id., § 5.40(h)(2).)
There is nothing in this record to suggest the juvenile court did not comply with these rules and standards. The juvenile court specifically found that Andre’s educational records indicated he was not currently identified as an “individual with exceptional needs.” The report from the probation department stated that Andre did not have any special education needs and stated that Fresno Unified School District reported Andre was not a special education student.
Andre argues the juvenile court erred because the evidence was insufficient to conclude that he did not have special education needs. Since Angela M. is no longer controlling, we are uncertain what relevance this finding has. Nonetheless, as we shall explain, the argument is without merit.
Although not acknowledged by Andre, to prevail on this argument the evidence must establish it was impossible for the juvenile court to have concluded that Andre did not have special education needs. (Bennett v. City of Los Angeles (1970) 12 Cal.App.3d 116, 120.) If there is evidence that is reasonable, credible, and of solid value, we must affirm the juvenile court’s factual finding that Andre did not have any special education needs. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
We reject Andre’s argument because the evidence in this case did not conclusively establish that Andre had special education needs. The evidence was, in fact, contradictory. Andre’s focus on the evidence supporting his position ignores the scope of our review, which requires us to consider the entire record. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) The portions of the record cited above constitute substantial evidence that Andre did not have special education needs.
Andre cites the report from the psychological evaluation prepared for the January 2006 dispositional hearing, which stated that Andre had severe developmental delays, clinical intervention was needed, and that Andre should be assessed to determine if he had any special education needs. Andre stated in his interview that he attended class without any special services in the past, but did not turn in his work. Andre’s mother stated that Andre was to be tested in the next few weeks to determine if Andre had any special education needs. There is nothing in the record to indicate that Andre was tested and found to have special education needs.
The probation officer’s report filed in December 2005 stated that Andre was attending a local high school, but had accumulated only 15 credits toward graduation because he had failed to attend class. The probation officer’s report dated May 26, 2006, stated that Andre was in a special education program and was performing satisfactorily in that program. However, the later prepared report cited above stated Andre did not have special education needs. It is reasonable to presume that if Andre was in special education classes in the past, there was no longer any reason for him to remain in those classes.
The probation officer’s report filed on July 17, 2007, stated that Andre was in a continuation program and his report card reflected a 3.11 grade point average. Fresno Unified School District records reflected that Andre had failed to attend school since November 2006.
The entire record, the relevant portions of which are discussed above, made it impossible for the juvenile court to conclude that Andre was a student with exceptional needs. Therefore, there is no error. Our conclusion is not meant to suggest that in the future the juvenile court or DCRJJ is excused from addressing any special education needs if they are found to exist. Our conclusion is limited only to the finding of the juvenile court based on the information currently in the record.
DISPOSITION
The judgment is affirmed.