Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. JV310347
Pollak, J.
The minor, J.T., appeals from an order committing him to the California Department of Corrections, Division of Juvenile Justice (the department) after he admitted violating his probation by, among other things, testing positive for marijuana and failing to attend school. He contends that the court lacked authority to commit him to the department and, alternatively, that the court failed to provide the department with his individual education program (IEP) prior to transferring him to the physical custody of the department. We affirm.
Background
On May 15, 2006, J.T. admitted to one count each of burglary and vandalism. He was declared a ward of the court, ordered to serve 90 days in juvenile hall and placed on probation. On July 30, 2007, J.T. admitted the allegations in an amended petition that among other things he had committed a theft and had possessed marijuana. The court continued J.T. on probation and ordered him to serve 180 days in juvenile hall.
On October 1, 2007, a second amended petition was filed charging J.T. with assault resulting in great bodily injury (Pen. Code, § 243, subd. (d)), robbery (Pen. Code, § 211) and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). Following a contested hearing, the court found the assault allegations true. J.T. was continued on probation and ordered to serve an additional 90 days in juvenile hall.
On July 23, 2008, J.T. admitted that he had violated his probation by testing positive for marijuana. He also admitted that he had been absent from home and school without an excuse and was terminated from the juvenile court drug program. The court continued J.T. as a ward of the court and committed him to the department based on “the severity of the offense and the lack of compliance with conditions of probation.” J.T. filed a timely notice of appeal.
Discussion
1. The Department Commitment
Welfare and Institution Code section 733 provides that a ward of the juvenile court may not be committed to the department under certain circumstances. One such circumstance is set out in subdivision (c): “The ward has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707....”
All statutory references are to the Welfare and Institution Code unless otherwise noted.
Defendant does not dispute that in November 2007 he was found to have committed an assault by means of force likely to produce great bodily injury, which is an enumerated offense under section 707, subdivision (b). He contends, however, that “the most recent offense” as that term is used in section 733 was not the 2007 assault, but his admitted probation violation in July 2008. He argues that he was not eligible for commitment to the department based on the allegations that he tested positive for marijuana, was absent from home and school without a valid excuse and was terminated from the Juvenile Drug Court Program.
This issue was recently determined in In re J.L. (2008) 168 Cal.App.4th 43. The court concluded that a violation of probation alleged in a section 777 notice “does not constitute an offense alleged in a ‘petition’ within the meaning of section 733, subdivision (c).” (168 Cal.App.4th at p. 61.) The court reasoned that section 777 was transformed by Proposition 21 (The Gang Violence and Juvenile Crime Prevention Act of 1998, eff. March 8, 2000) into a probation violation procedure in which no criminal offense can be alleged. (168 Cal.App.4th at p. 59.) “In view of the different procedures in a proceeding under section 602 as compared to a proceeding under section 777, including that the former is initiated by a petition while the latter is initiated by a notice, and the constitutional distinctions between alleging that a crime has been committed as compared to alleging that probation has been violated, we conclude that the reference to a ‘petition’ in section 733, subdivision (c), refers to a petition that is filed under section 602 but not a notice filed under section 777.” (168 Cal.App.4th at p. 60.)
We agree with the opinion in In re J.L, supra, 168 Cal.App.4th 43. Defendant’s notice of probation violation was not a petition alleging an offense; thus the court acted within its authority when it committed him to the department because his most recent offense, a violation of Penal Code section 245, subdivision (a)(1), allowed such a commitment.
2. IEP
“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 [citation],’ 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.” (In re Angela (2003) 111 Cal.App.4th 1392, 1397-1398, fn. omitted.) In furtherance of the objectives of the Education Code, section 1742 provides, “When the juvenile court commits to the Youth Authority a person identified as an individual with exceptional needs, as defined by Section 56026 of the Education Code, the juvenile court... shall not order the juvenile conveyed to the physical custody of the Youth Authority until the juvenile’s individualized education program previously developed... for the individual with exceptional needs, has been furnished to the Department of the Youth Authority. [¶] To facilitate this process the juvenile court shall assure that the probation officer communicates with appropriate staff at the juvenile court school, county office of education, or special education local planning area.”
It is undisputed that J.T. qualifies as a child with special educational needs. Although the court’s commitment order filed on August 21 originally and apparently mistakenly found that J.T. is not “an individual with exceptional needs,” at the request of the department that order was amended on August 25 to find that J.T. is an individual with exceptional needs. The department file for J.T. contains his original IEP from 2005 as well as an updated IEP that was completed following a review in April 2006. Absent any affirmative evidence to the contrary, we assume that the court complied with section 1742 and transmitted J.T.’s IEP to the department at or prior to the transfer of his physical custody.
The People’s unopposed request for judicial notice of these documents is granted.
J.T.’s attorney reasonably questions whether the court and the department are fulfilling their obligations under the Education Code. Education Code section 56380, subdivision (a)(1) requires a minor’s IEP to be reviewed “periodically, but not less frequently than annually, to determine whether the annual goals for the pupil are being achieved.” If the department is operating under an IEP that has not been reviewed since 2006, that would be cause for serious concern. Any failure in this regard should be brought to the attention of the trial court but does not establish reversible error with regard to the commitment order.
Disposition
The order committing J.T. to the department is affirmed.
We concur: McGuiness, P. J., Jenkins, J.