Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J180933. Margaret A. Powers, Judge.
Gregory S. Cilli, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Efrain R. appeals from an order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). He contends only that the matter should be remanded to the juvenile court for further proceedings to determine if he is a person with exceptional educational needs. We conclude that the court’s determination that he is not such a person is supported by substantial evidence, and we therefore affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Efrain R., who is now 19 years old, has been a ward of the juvenile court in San Bernardino County since 2002. He had a long history of sexual abuse, and, at age 14, he was charged with multiple nonviolent sexual acts. He admitted committing a lewd and lascivious act on his seven-year-old half brother (Pen. Code, § 288, subd. (a)), and other allegations were dismissed. Efrain was placed in the custody of the probation department for placement in an appropriate facility.
The probation department placed Efrain in Starshine Treatment Center. Approximately four months after his placement, Efrain went AWOL, and Starshine terminated his placement due to the severity of his issues. A new wardship petition was filed, charging Efrain with two probation violations: leaving the Starshine premises without permission and refusing to go to school. He admitted the latter allegation, and the former allegation was dismissed. Efrain was subsequently placed at Olive Crest.
In May 2004, Efrain left Olive Crest without permission. The district attorney filed a new wardship petition, charging Efrain with a probation violation. Efrain had not been apprehended, and an arrest warrant was issued. In February 2005, Efrain was arrested for residential burglary in Riverside County. A wardship petition was filed in Riverside County. Efrain admitted an amended charge of second degree burglary (Pen. Code, § 459). The San Bernardino County juvenile court accepted the matter. It dismissed the May 2004 petition alleging the probation violation for leaving Olive Crest without permission. It continued Efrain on probation with the same terms and conditions, and in April 2005, Efrain was placed at Children’s Therapeutic Communities.
Efrain left Children’s Therapeutic Communities without permission on July 7, 2005. He admitted the allegations of a new wardship petition alleging that probation violation. The court continued Efrain as a ward and ordered him placed in juvenile hall.
On September 26, 2005, at a contested disposition hearing, the court ordered Efrain sent to the California Youth Authority (now DJJ) for a 90-day diagnostic evaluation. Following the evaluation, the court committed Efrain to DJJ for eight years for the violation of Penal Code section 288, subdivision (a) adjudicated in 2002, and eight months for the violation of Penal Code section 459 adjudicated in 2005. Efrain filed a timely notice of appeal.
LEGAL ANALYSIS
SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S FINDING THAT EFRAIN DOES NOT HAVE EXCEPTIONAL NEEDS
Efrain does not challenge the propriety of the order committing him to DJJ. Rather, he contends that the juvenile court’s finding that he does not have exceptional needs was not supported by substantial evidence.
The Attorney General contends that the appropriate standard of review is abuse of discretion. However, the court’s finding that Efrain is not a person with exceptional needs is primarily factual in nature. We review a factual finding under the substantial evidence standard. We must affirm the court’s ruling if there is evidence which is reasonable in nature, credible and of solid value which supports the trial court’s conclusion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065.)
A person with exceptional needs is a child with a disability, as defined in section 1401 of title 20 of the United States Code, who “requires instruction, services, or both, which cannot be provided with modification of the regular school program.” (Ed. Code, § 56026, subd. (b).) Title 20 United States Code section 1401 defines “child with a disability” as a child “with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as ‘emotional disturbance’), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and . . . who, by reason thereof, needs special education and related services.” (20 U.S.C. § 1401(3)(A).) A pupil whose educational needs are due primarily to a lack of instruction in English or mathematics, temporary physical disabilities, social maladjustment, or environmental, cultural or economic factors is not an individual with exceptional needs. (Ed. Code, § 56026, subd. (e).)
Here, there is evidence that Efrain suffers from mild mental retardation or borderline intelligence. However, there is also evidence that Efrain’s educational difficulties were not caused by low intellect but by lack of motivation or distraction resulting from his troubled childhood.
A psychological evaluation conducted in 2002 concluded that Efrain was functioning in the “mild range of mental retardation.” An evaluation conducted in June 2005 by the same examiner concluded that Efrain was then functioning in the “borderline range of intelligence.” The examiner noted that Efrain had “barely achieved a level of literacy in reading and spelling [and] . . . would have considerable difficulty in a regular high school program.” There is conflicting information elsewhere in the record as to whether Efrain was or had been in special education classes or had an active individualized education program.
The DJJ diagnostic study report, conducted in or about November 2005, noted that one of the referral documents indicated that Efrain was mildly mentally retarded. However, DJJ’s testing showed that Efrain was reading at the adult secondary level and performing math at the advanced basic skills level. The report noted that people who read at that level can read and follow multi-step instructions, read and interpret common legal forms and manuals, and perform tasks that involve oral and written instructions in both familiar and unfamiliar situations. The report also noted that Efrain reported that although he had had difficulty concentrating in school in the past, he was then having no such difficulties and that he “love[d] learning new stuff.” He hoped to go to college, and had asked his principal to add some electives, such as music, to his curriculum. The report concluded that Efrain was of average intelligence and “should be able to make use of all training and treatment services that he receives.”
The DJJ diagnostic report is substantial evidence that when Efrain is motivated and is not distracted by the emotional difficulties caused by his troubled childhood, he is capable of average or above average academic achievement. Based on that report, a reasonable trier of fact could determine that Efrain was not a person with exceptional needs as defined in Education Code section 56026. It does not matter that a reasonable trier of fact could draw a different conclusion; we must uphold the trial court’s ruling if it is supported by substantial evidence, even if there is substantial evidence to the contrary. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
Efrain’s reliance on In re Angela M. (2003) 111 Cal.App.4th 1392 is misplaced. In that case, the court affirmed the minor’s commitment to the California Youth Authority but remanded the matter to the juvenile court for limited further proceedings. The Court of Appeal noted that although the juvenile court was on notice that Angela might have special educational needs, it failed to make findings concerning her educational needs. (Id. at pp. 1398-1399.) Here, the court did make the finding that Efrain did not have special educational needs.
Finally, Efrain contends that because DJJ failed to assess his educational needs properly—i.e., that it concluded that he was of average intelligence despite substantial evidence showing that he was at best functioning in the borderline range of intelligence—DJJ cannot be relied upon to assess his needs properly in the future. This, of course, begs the question, in that it requires the a priori conclusion that DJJ did not properly assess Efrain’s educational needs in the first place. As we have discussed, although there is evidence that Efrain is of borderline intelligence or less, the trial court relied upon substantial evidence to determine that he has at least average intelligence and that his prior difficulties in school were due to his emotional state or lack of motivation rather than his intellect.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Richli, J.