Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J07-02214
Sepulveda, J.
Defendant Joshua J. appeals from an order continuing him as a ward of the court and committing him to the Division of Juvenile Justice (DJJ). (Welf. & Inst. Code, § 602, subd. (a).) Defendant contends that the trial court failed to fully evaluate his educational needs when committing him to DJJ, and that we should remand the case with directions that the court order a new, updated individualized education program (IEP) to assess those needs. (20 U.S.C. § 1414, subd. (d)(1)(A)(i); 34 C.F.R. §300.22.) We conclude that the court had sufficient evidence to determine defendant’s educational needs based on a recent IEP and psychological evaluation. Moreover, defendant suffered no prejudice because the court found that defendant has exceptional educational needs, and the IEP will be updated upon defendant’s arrival at DJJ. (Welf. & Inst. Code, § 1120, subd. (b).) We affirm the order.
I. Facts
Defendant Joshua J. was adjudged a ward of the court in May 2006, at the age of 14. (Welf. & Inst. Code, § 602, subd. (a).) He violated probation several times by running away from group homes, after which he served the remainder of his custody time in juvenile hall. He was released from juvenile hall around September 2007. Within a few months, he committed the instant offenses.
In November and December 2007, defendant committed multiple armed robberies at business establishments. (Pen. Code, §§ 211, 212.5, subd. (c), 12022.5, subd. (a).) On November 29, 2007, he entered a restaurant, pointed a gun at three employees and demanded money. He took money from the cash register and left. Later that same night, he went to an electronics store. Defendant ordered employees and customers onto the floor at gunpoint, and took around $3,000 from the cash registers. On December 6, 2007, defendant entered a car rental agency where he threatened an employee and customers with a gun and stole money from a cash box. That same day, he went to another car rental agency and demanded money while holding an employee at gunpoint. The employee said “ ‘I don’t have any money.’ ” Defendant repeated his demand and held a gun to the employee’s chest but left after seeing that there was no cash box. Also on that same day, defendant went to a computer store where he pointed a gun at two employees. Defendant took money from the cash register and demanded more. One of the employees handed over his wallet. Defendant took money from the wallet and tossed the wallet to the floor.
Defendant was arrested and confessed to the robberies and attempted robbery. Defendant told the police that the gun he used was a BB gun but that assertion was disputed by the testimony of one of the victims, who said the weapon was a semiautomatic handgun and was sure of it because defendant racked the gun and a round popped out. A police officer confirmed that a round will eject from a firearm if there is already a round in the firing chamber and the gun is racked, which brings another round into the firing chamber.
II. Trial Court Proceedings
An amended juvenile delinquency petition was filed on December 12, 2007, alleging multiple counts relating to the armed robberies. The court ordered a psychological assessment of defendant during his detention at juvenile hall. The January 2008 assessment noted that defendant had “multiple needs” related to substance abuse, depression, anger management, and impulse control. The therapist noted that defendant had “special education status” and opined that defendant “would benefit from an updated I.E.P. to determine his current level of academic ability and to determine what classroom modifications he may need to support his academic success.” An IEP, or Individualized Education Program, is a written statement for a child with a disability. (20 U.S.C. § 1414, subd. (d)(1)(A)(i); 34 C.F.R. § 300.22.) Among other things, an IEP states the child’s present level of academic achievement and the special education services to be provided to address the child’s needs. (20 U.S.C. § 1414, subd. (d)(1)(A)(i); 34 C.F.R. § 300.320.) An IEP was prepared in March 2008, and a psychological evaluation performed in May 2008.
At a contested jurisdiction hearing on June 25, 2008, the court found that defendant committed robbery, attempted robbery, and forcible false imprisonment. (Pen. Code, §§ 211, 212.5, subd. (c), 236, 237, 664.) The court further found that defendant personally used a firearm in perpetrating the crimes. (Pen. Code, § 12022.5, subd. (a).) The court detained defendant at juvenile hall pending a disposition hearing, and directed preparation of a probation report.
A probation report was filed on July 11, 2008, the date set for a pretrial hearing on disposition. The probation officer recommended commitment to DJJ. The report observed that defendant “is a special education student” but mistakenly stated that defendant’s “last IEP was done in April 2007.” (Capitalization altered.) In fact, defendant’s last IEP had been done in March 2008. The report noted that defendant has “severe issues” with substance abuse. Defendant admitted using marijuana, cocaine, psilocybin mushrooms, and methylenedioxymethamphetamine (MDMA or ecstasy). Defendant said he was a daily drug user, and supported his habit by selling drugs. Defendant was diagnosed with attention deficit disorder during his previous time in custody at juvenile hall, and more recently diagnosed with bipolar disorder. While detained at juvenile hall on the instant offenses, defendant was disobedient and hostile with staff. He was listed as a security risk several times for attacking staff and fellow inmates. The probation officer reported that defendant was screened for placement at facilities less restrictive than DJJ and none was suitable. Defendant was violent, had fled from less restrictive placements, and had behavioral problems best addressed at DJJ. The report stated: “The Division of Juvenile Justice can provide the minor with counseling to address his various needs, including substance abuse, anger management, and any family or individual issues that may have been a factor in the minor’s negative lifestyle choices. It will also isolate the minor, thereby providing for community safety. While there, the minor will be able to continue his high school education, which may provide him with the proper tools to remedy his behavior in the future.” (Capitalization altered.)
At the July 11, 2008 pretrial hearing, the court vacated the disposition hearing date and ordered a psychological assessment and a psychotropic medical assessment. The court continued the pretrial hearing to August 1, 2008. On July 16, 2008, the court additionally ordered “that the minor receive an IEP or an update to any IEP currently in place.” The court may have believed that defendant’s last IEP had been done in April 2007, as the probation officer mistakenly reported.
At the August 1, 2008 continued pretrial hearing, a psychological evaluation and IEP were submitted. Both the evaluation and IEP were prepared before July 2008, when the court ordered their preparation. The record is uncertain on this point, but it appears that the court was unaware that an evaluation and current IEP already existed when it issued its orders. In any event, the record shows that the evaluation by psychologist Andrew Pojman was conducted in May 2008 (before the jurisdiction hearing), and filed on August 1, 2008. Pojman concluded that defendant “is a severely troubled adolescent who has significant neuropsychological and emotional deficits.” Defendant was diagnosed with attention deficit hyperactivity disorder (ADHD) “coupled with a provisional diagnosis of bipolar II disorder with psychotic features.” The provisional aspect of the latter diagnosis was due to defendant’s substantial drug abuse, which “clouds the picture related to past behavior.” The psychologist stated that defendant was “in need of psychotropic medication in order to address his serious psychiatric condition.”
Defendant scored 59 on an IQ test, which suggests “a mild to moderate level of mental retardation.” Pojman found that defendant has “a severe learning disability,” and noted that defendant was placed in special education in the early grades. Pojman noted that defendant “still qualifies for and is in need of Special Education services.” The psychologist concluded that “[a] new IEP needs to be developed for [defendant]. It is suspected that his last IEP was woefully inadequate when it came to addressing the educational needs of this trouble[d] and disabled student.” On this record, it is not clear if Pojman actually reviewed an IEP. He does not identify, by date or particulars, which IEP he “suspect[s]” was inadequate and the asserted inadequacy is based on defendant’s poor functioning rather than the particulars of the IEP itself.
The IEP in the record on appeal was prepared on March 31, 2008, and lists services to be provided through March 30, 2009 at the juvenile hall school. The IEP concluded that defendant was best served in general education classes, with an instructional support program consisting of special accommodations and tutoring. Those accommodations included extended time for assignments, flexible settings for tests, and revised test directions. The IEP also found that special promotion standards should apply to defendant.
The disposition hearing was held on August 15, 2008. The court had received all ordered assessments: an IEP, a psychological evaluation, and a psychotropic medicine evaluation. The court also read and considered the probation officer’s report. The court found that defendant has “[e]xceptional educational needs.” The court committed defendant to DJJ for a maximum term of 20 years. In choosing DJJ, the trial judge stated that she considered “all local, less restrictive programs and the forms of custody, and I’m fully satisfied that they are inappropriate dispositions at this time and that the minor can better benefit from the various programs provided by the Department of Juvenile Justice. [¶] The mental and physical condition and qualifications of [defendant] are such as to render it probable that he will be benefitted by the reformatory, educational discipline and other treatment provided by DJJ.” On the commitment order, the court noted that defendant has “exceptional needs” and an existing IEP. The March 31, 2008 IEP was attached to the August 2008 order for transmittal to DJJ.
III. DISCUSSION
Defendant, through appointed counsel, argues that the trial court failed to fully evaluate defendant’s educational needs when committing him to DJJ, and that we should remand the case with directions that the court order a new, updated IEP to assess those needs. We reject the argument. The court fully considered defendant’s educational needs when it reviewed a current IEP and psychological evaluation before committing him to DJJ. Moreover, defendant suffered no prejudice because the court found that defendant has exceptional educational needs, and the IEP will be updated upon defendant’s arrival at DJJ. (Welf. & Inst. Code, § 1120, subd. (b).)
At a disposition hearing, the juvenile court must address and determine a child’s educational needs. (Welf. & Inst. Code, § 734; Cal. Stds. Jud. Admin. § 5.40(h)(1); In re Angela M. (2003) 111 Cal.App.4th 1392, 1397-1398.) The court did so here. An IEP was prepared in March 2008, when defendant was detained at juvenile hall and receiving educational services there. A psychological evaluation was also performed, in May 2008, and the psychologist provided detailed information on defendant’s cognitive deficits and learning disability. The court had both reports at the August 2008 disposition hearing. In committing defendant to DJJ, the court found that defendant had exceptional educational needs and that DJJ was the facility best able to address those needs. The court transmitted defendant’s existing IEP to DJJ so that it would have the benefit of that information, as required by law. (Welf. & Inst. Code, § 1742.) DJJ then assumed the responsibility of assessing defendant’s educational needs. DJJ assesses “the educational needs of each ward upon commitment and at least annually thereafter until released on parole.” (Welf. & Inst. Code, § 1120, subd. (b).)
Defendant argues that an IEP updating the March 2008 IEP should have been prepared because (1) the court’s July 2008 order directed “that the minor receive an IEP or an update to any IEP currently in place”; and (2) a psychologist stated that he “suspected that [defendant’s] last IEP was woefully inadequate when it came to addressing the educational needs of this trouble[d] and disabled student.”
As a preliminary matter, we note that the law generally provides that an IEP reevaluation may not occur more than once a year. (20 U.S.C. 1414, subd. (a)(2)(B)(i); 34 C.F.R. § 300.303(b)(1).) Defendant’s insistence on a new IEP in August 2008, only four months after the March IEP was conducted, defies this standard. Defendant’s arguments suffer other difficulties, as well.
A careful reading of the record disposes of defendant’s first argument, concerning the court’s order for an IEP or updated IEP. On July 16, 2008, the court ordered “that the minor receive an IEP or an update to any IEP currently in place.” We do not understand this order to direct that the March 2008 IEP had to be updated because, when the July order was issued, the court seemed to have been unaware of the existence of the March 2008 IEP. The court may have believed that defendant’s last IEP had been done in April 2007, as the probation officer mistakenly reported. When the March 2008 IEP was submitted to the court in August 2008, the court accepted it as responsive to its order for an IEP, and never indicated that it wanted a more recent IEP. In short, there is no support for defendant’s argument that the court’s order for an IEP or updated IEP was “disregarded.” The order was fully satisfied by presentation of the March 2008 IEP, as demonstrated by the court’s ready acceptance of that IEP.
Defendant’s second argument is also unavailing. In arguing that the IEP was inadequate, he relies upon a statement by the psychologist Pojman. Pojman said he “suspected that [defendant’s] last IEP was woefully inadequate when it came to addressing the educational needs of this trouble[d] and disabled student.” As we noted earlier, it is not clear if Pojman actually reviewed the March 2008 IEP, or any IEP. Pojman does not identify, by date or particulars, which IEP he “suspect[s]” was inadequate and the asserted inadequacy is based on defendant’s poor functioning rather than the particulars of the IEP itself.
In any event, remand for preparation of another IEP is not mandated even were we to find the March 2008 IEP inadequate in addressing defendant’s educational needs. Defendant complains that the IEP failed to acknowledge cognitive impairments and mental health problems later identified by the forensic psychological report. But these matters were identified by that psychological report, and the trial court had the benefit of that report (in addition to the IEP) in determining defendant’s needs. While defendant expresses concern that the IEP may have understated his educational needs, the court plainly was not misled by the IEP on this point. The court determined that defendant had exceptional educational needs, and alerted DJJ to this fact when committing him to that facility.
Nor do we credit defendant’s argument that DJJ could be misled into understating his educational needs by the March 2008 IEP prepared at juvenile hall. DJJ does not adopt an existing IEP without examination but makes its own evaluation of defendant’s educational needs. DJJ assesses “the educational needs of each ward upon commitment and at least annually thereafter until released on parole.” (Welf. & Inst. Code, § 1120, subd. (b).) Defendant was therefore not prejudiced by any inadequacy of the March 2008 IEP.
IV. DISPOSITION
The order is affirmed.
We concur: Reardon, Acting P.J., Rivera, J.