Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. No. JW107004-04, Jon E. Stuebbe, Judge.
Rachel Lederman, 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, Brian Alvarez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Levy, J., and Dawson, J.
OPINION
INTRODUCTION
On December 11, 2007, a petition was filed pursuant to Welfare and Institutions Code section 602 in Kern County alleging that appellant, Juan D., committed robbery, a felony (Pen. Code, § 212.5, subd. (c), count one), received stolen property (Pen. Code, § 496, subd. (a), count two), and violated the terms of his probation (§ 777, subd. (a)(2), count three). As to count one, it was further alleged that Juan committed great bodily injury on the victim (Pen. Code, § 12022.7, subd. (a)).
Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code.
Juan had prior juvenile misdemeanor adjudications in 2005 for battery (Pen. Code, § 243, subd. (a)), in 2006 for vandalism (Pen. Code, 594, subd. (b)(2)(A)) and violating the terms of his probation (§ 777, subd. (a)(2)). Juan was placed in Camp Erwin Owen. In August 2007, Juan again violated the conditions of his probation and was committed to Camp Erwin Owen.
On February 5, 2008, Juan waived his rights and admitted counts one and three pursuant to a plea agreement. The remaining allegations were dismissed. On February 28, 2008 the juvenile court committed Juan to Juvenile Justice for a maximum period of confinement of five years eight months. On appeal, Juan contends the juvenile court abused its discretion in committing him to the Department of Corrections and Rehabilitation, Juvenile Justice (Juvenile Justice) and for failing to find he was a child with special needs. We will affirm.
FACTS
On December 8, 2007, at 1:54 a.m., officers from the Bakersfield Police Department were dispatched to the intersection of 10th Street and Chester Avenue to investigate a reported robbery. The investigating officers were told the victim had been robbed by three Hispanic males wearing dark clothing. They were last seen running west on 10th Street carrying the victim’s wallet and backpack.
When officers arrived at the intersection of 9th and Eye Streets, they saw two Hispanic males wearing black sweatshirts walking out of the alley at the 900 block of Eye Street. One of the males, Juan, looked toward the patrol vehicle, turned quickly, and began walking in the opposite direction. Juan was carrying a black backpack in his right hand which he threw into a dumpster. Juan ran down 9th Street to catch up with his companion.
Officers detained Juan and his companion. They also retrieved the victim’s backpack and wallet from the dumpster. The victim was on his way to work with Hall Ambulance when he was confronted by three Hispanic males who ran up to him demanding his backpack. The three males surrounded him to prevent him from continuing toward his job. The three males began punching him when the victim refused to surrender his backpack. They succeeded in knocking the victim to the ground and began punching and kicking him in his face and upper body. Juan removed the backpack from the victim. The victim positively identified Juan and his companion as two of the assailants.
A psychological report by Dr. Gary Longwith was submitted by Juan prior to the disposition hearing. Juan told Dr. Longwith that he had been depressed for a long time. Juan admitted abusing marijuana and alcohol from the age of 13 and experimented with methamphetamine a few times at age 16. Dr. Longwith administered the Miller Forensic Assessment of Symptoms Test, which showed Juan was at a slightly higher than moderate risk for future violence. Juan’s I.Q. was average. Dr. Longwith suspected Juan’s difficulty attending to item content was consistent with Attention-Deficit Hyperactivity Disorder (ADHD). Other tests indicated “a clinical elevation in anxiety and depression.”
Dr. Longwith noted that Juan said he excelled with the military discipline offered at Camp Irwin Owen. Dr. Longwith noted this program provided the structure Juan had lacked his entire life. Dr. Longwith noted Juan had never been treated with pharmacotherapy medications and showed symptoms of ADHD, anxiety, and depression. Dr. Longwith diagnosed Juan with “an objectively verified mental illness, Major Depression and ADHD.” Dr. Longwith recommended a psychiatric referral. There was no indication by Dr. Longwith that Juan was a student requiring special education.
The probation officer recommended that Juan be committed to Juvenile Justice, noting that he had two prior commitments to Camp Irwin Owen and failed to reform. The probation officer further noted that local programs would not be effective in Juan’s rehabilitation and Juan did not have special needs.
The juvenile court noted it had considered the probation department’s recommendation and also reviewed Dr. Longwith’s analysis of Juan. The court found Juan’s offense to be a step up from his prior conduct. The court noted Juan was nearly 17 and a half and the nature of the offense and the manner in which it was committed could easily have been the basis for a fitness hearing for Juan to be treated as an adult offender.
The court ordered Juan’s commitment to Juvenile Justice. The court found the previous orders of the court were not effective in Juan’s rehabilitation and that local programs would be ineffective in Juan’s rehabilitation. The court found Juan would benefit from the reformatory, educational, and disciplinary treatment provided by Juvenile Justice. The court further found that Juan was not a minor with exceptional needs.
COMMITMENT TO JUVENILE JUSTICE
Juan contends the juvenile court abused its discretion in committing him to Juvenile Justice and in failing to find that he is a minor with special needs. We disagree and will affirm the judgment of the juvenile court.
Under section 725.5, the juvenile court must consider the circumstances and gravity of the offense committed by the minor. The court must consider the broadest range of information in determining how best to rehabilitate a minor and to afford him or her adequate care. A juvenile court’s order may be reversed on appeal only upon a showing the court abused its discretion. Appellate courts must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.)
The record must be viewed in light of the purposes of juvenile law. As described in section 202, those purposes include rehabilitation, treatment, guidance, punishment as a rehabilitative tool, and protection of the public. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 575-576 (Teofilio A.).)
It is clear that a commitment to the California Youth Authority (CYA) may be made in the first instance, without previous resort to less restrictive alternatives. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.) Courts do not necessarily abuse their discretion in ordering a juvenile to the most restrictive placement before other options have been tried. (In re Eddie M. (2003) 31 Cal.4th 480, 507.) The gravity of an offense, coupled with other relevant factors, is always a consideration. (In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104, disapproved on another ground in People v. Hernandez (1988) 46 Cal.3d 194, 206, fn. 14.)
CYA is now known as Juvenile Justice. Because this change is recent and most of the case law refers to CYA, we use the two terms interchangeably in our analysis.
It is error for a juvenile court to fail to consider less restrictive alternatives to CYA commitment. (Teofilio A., supra, 210 Cal.App.3d at p. 577.) In Teofilio A., neither the juvenile court nor the probation report considered alternatives to CYA commitment. Though the only evidence in the probation report showed the juvenile was an unsuitable candidate for CYA, the report concluded that the juvenile acted in a criminally sophisticated manner. Teofilio A. found the probation officer’s conclusion was grounded on supposition and speculation, not on solid evidence. Teofilio A. concluded there was not sufficient evidence to support the juvenile’s commitment to CYA. (Id. at pp. 578-579.)
Here, in contrast to Teofilio A., both the juvenile court and the probation officer considered less restrictive alternatives to a commitment to Juvenile Justice. Juan’s poor performance at Camp Irwin Owen and while on probation, coupled with his new offense, were all reasons supporting the juvenile court’s rejection of a less restrictive alternative to a commitment to Juvenile Justice. Furthermore, the gravity of Juan’s robbery was a further factor justifying his commitment to Juvenile Justice.
The juvenile court considered less restrictive alternatives to committing Juan to Juvenile Justice. We reject the assertion of Juan’s appellate counsel that the juvenile court had to carefully consider other less restrictive alternatives under the circumstances of this case. We find that in committing Juan to Juvenile Justice, the juvenile court did not abuse its discretion.
SPECIAL NEEDS
Juan contends the juvenile court erred in failing to consider him a child with special needs because he was diagnosed with ADHD and is therefore entitled to a Individualized Education Plan (IEP). Juan’s opening brief cites several provisions related to special education set forth in the Education Code, the Welfare and Institutions and Education Codes, and federal statutes.
Appellant has cited to several studies and reports critical of the services available to Juvenile Justice. These studies and reports were not presented to the juvenile court and we will not consider them on appeal. (See Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325; People v. Rubics (2006) 136 Cal.App.4th 452, 462, fn. 5.) We reject Juan’s arguments, based on information not before the juvenile court, that programming at Juvenile Justice cannot aid in his rehabilitation or meet his needs.
Education Code section 56000 declares that “all individuals with exceptional needs have a right to participate in free appropriate public education,” and states, “[i]t is the . . . intent of the Legislature to ensure that all individuals with exceptional needs are provided their rights to appropriate programs and services which are designed to meet their unique needs under the Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.).” Education Code Section 56001 provides it is the intent of the Legislature that special education programs provide that each individual shall have his or her educational goals, objectives, and special education and related services specified in a written individualized education program, including any child who is identified 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.). These are children whose impairment requires instruction, services, or both which cannot be provided with modification of the regular school program. (Ed. Code, § 56026, subds. (a), (b), (c) & (d).) (In re Angela M. (2003) 111 Cal.App.4th 1392, 1397 (Angela M.).) Students whose educational needs are due primarily to limited English proficiency, a lack of instruction in reading or mathematics, temporary physical disabilities, social maladjustment, or environmental, cultural, or economic factors are not individuals with exceptional needs. (Ed. Code, § 56026, subd. (e).)
Juan’s challenge to the court’s finding that he was not a person with exceptional educational needs is, in essence, a claim that the court did not adequately consider appellant’s educational needs. One case that examines this issue is Angela M., supra, 111 Cal.App.4th 1392. In that case, the minor, Angela, admitted violating probation granted following a prior wardship adjudication, and the juvenile court ordered her committed to the CYA. However, the court-appointed psychologist who examined Angela recommended placement and treatment in a psychiatric/treatment-based facility. He opined that Angela was suffering from bipolar disorder and appeared to exhibit symptoms of ADHD. He also recommended that Angela have an IEP, that is, that she be evaluated by education professionals to determine whether she had special educational needs. (Id. at p. 1399.) The appellate court stated that, based on this evidence, “[t]he juvenile court . . . was clearly on notice that Angela may have special educational needs.” (Id. at p. 1398.)
The Angela M. court noted that the version of California Rules of Court, rule 1493(e)(5) in effect at that time implemented the legislative mandate to provide free special education services to all eligible children by directing that the juvenile court must consider the educational needs of the child when declaring a child a ward of the court. (Angela M., supra, 111 Cal.App.4th at p. 1398, fns. omitted.) The court held: “Although the record indicates special attention to Angela’s education needs was appropriate, the juvenile court did not mention this issue when committing her to CYA. Remand is necessary to permit the juvenile court to make proper findings, on a more fully developed record, regarding Angela’s educational needs.” (Id. at p. 1399, fn. omitted.) Specifically, the court ordered that on remand, the juvenile court was to determine whether an evaluation of Angela’s special educational needs should be conducted. (Id. at p. 1399.)
Angela M. is inapposite to the instant action. That case stands for the simple proposition that prior to committing a juvenile to CYA, the juvenile court has a duty to consider or determine whether the juvenile has special educational needs. (In re Angela M., supra, 111 Cal.App.4th at p. 1398.) In Angela M., the court appeared completely unaware of this duty. Here, by contrast, the court specifically noted that it had considered Dr. Longwith’s report before it expressly found that appellant had no exceptional educational needs. Although Dr. Longwith diagnosed Juan with ADHD, he made no recommendation that Juan be given an IEP. There is no indication in the probation officer’s report that Juan is a special education student or that he should be evaluated for that purpose. An earlier probation report from a prior disposition hearing makes no reference to Juan being a student with special needs.
The fact that Juan has potential psychiatric conditions caused by ADHD and depression is not enough, by itself, to make Juan a student with special needs. Unlike the juvenile in Angela M., the psychological evaluator did not recommend that Juan be evaluated by an IEP. In our view, there is nothing in the record to compel the conclusion that the juvenile court failed to adequately consider the minor’s educational needs.
Education Code section 56026, subdivision (e) expressly finds that minors who are socially maladjusted are not individuals with special needs. The juvenile court had evidence of Juan’s social maladjustment before it, including from Dr. Longwith’s psychological evaluation. Such evidence would have justified a finding by the juvenile court that Juan was not a student with special needs.
Finally, we note that the Juvenile Justice is required to conduct its own assessment of appellant’s educational needs upon commitment and at least annually thereafter. (§ 1120, subd. (b).) Therefore, Juan did not suffer any prejudice from the juvenile court’s failure, if any, to consider his educational needs before committing him to Juvenile Justice.
DISPOSITION
The judgment is affirmed.