Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. J178910
Lambden, J.
Appellant S.W., born July 13, 1991 and a minor at the time of the proceedings below, appeals from the juvenile court’s dispositional order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). He argues that we should reverse the court’s order and remand this matter for a further disposition hearing on a variety of grounds, including that the court abused its discretion when it committed him without considering his special education needs. He argues in the alternative that, if we affirm the court’s commitment order, we should nonetheless remand for further proceedings regarding his special education needs. Finally, S.W. argues the court erred in calculating his custody credits and that certain written orders incorrectly state his maximum term of commitment.
We affirm the juvenile court’s order committing S.W. to DJJ, but remand this matter to the juvenile court for the limited purpose of further considering S.W.’s potential special education needs, and to recalculate his custody credits, and correct clerical errors in certain written orders regarding his maximum term of commitment.
BACKGROUND
We summarize only those facts relevant to our discussion of this appeal. In February 2000, a Welfare and Institutions Code section 300 dependency petition was filed in Alameda County alleging that S.W.’s parents were failing to protect him and his siblings, causing them serious emotional damage, and were unable to support them. S.W. was eight years old. Over the next nine years, S.W. lived in numerous group homes, foster homes, and treatment facilities, and on his own when he ran away from his placements. At the time of the disposition hearing discussed herein, S.W.’s mother was deceased and his father was incarcerated.
All statutory references herein are to the Welfare and Institutions Code unless otherwise stated.
The record indicates that S.W. was diagnosed with post-traumatic stress disorder (PTSD) and depression when he was nine years old, and since then has been repeatedly diagnosed with PTSD and major depression with psychotic features. He was treated at different times for attention deficit/hyperactivity disorder, oppositional defiant disorder, bipolar disorder, a severe conduct disorder, intermittent explosive disorder, and as prone to suicide. Starting when he was nine years old, the court authorized the administration of a variety of psychotropic and other medications to try to help address his emotional and behavioral issues.
S.W. has a significant history of violence, criminal behavior, and substance abuse, as indicated by a survey of his history since 2007.
2007
In January 2007, S.W. began attending a ninth grade resource class at San Leandro High School. Over the next several months, he was suspended for a variety of reasons. In March 2007, his foster parents, with whom he had stayed for three months and who adopted his sister, asked that he be removed from their home “due to his non-compliant, disrespectful behavior, truancy, drug use and gang involvement.”
In April 2007, S.W., now staying at the Esser House, was arrested for stealing, but the charges were later dropped. Among other things, he threatened to hurt the mother of his former foster family, to shoot the house where he was staying, to shoot a resident of the house, and threatened his grandmother.
Also in April 2007, the San Leandro Unified School District conducted an Individualized Educational Program (IEP) assessment to address S.W.’s “truancy, verbal and physical altercations, his non-compliant, defiant behavior towards the school staff, and stealing.” It was determined that S.W. “still require[d] special education due to a specific learning disability and the significant emotional and behavioral issues that impede his learning.” He had a deficit in “visual processing” that affected his academic ability. However, his educational testing showed that he “[had] the ability to maintain at this [general] academic level.” The IEP found that S.W. was eligible for special education because his intellectual ability was not matched by his educational achievement. Standardized tests indicated that his lack of education was “not the result of visual, hearing, or motor handicaps, or mental retardation.” He tested “within the low average range of others at his grade level.” The tests indicated that he read slowly, but understood text “at and a little above his reading level,” demonstrated “good critical thinking skills,” and thought “about what he reads before responding to questions.” He wrote “complete sentences with correct grammar and punctuation and spelling at his reading level.” He understood how to carry out “basic operations” of arithmetic.
S.W. was diagnosed with learning difficulties via an IEP before any dependency proceedings began, and consistently had IEPs when he was attending school.
S.W.’s behavior at school did not improve. He was suspended from the high school in early May 2007 for defiance, and for “threatening to shoot up the group home.”
S.W. soon left the Esser House without permission. Police picked him up five days later and he was ultimately returned to Esser House, where he admitted to having engaged in theft and gotten drunk, and expressed suicidal and threatening thoughts. A psychiatric team at Children’s Hospital in Oakland treated S.W. in May pursuant to section 5150. The team concluded that he “would benefit by being placed in a highly structured, therapeutic milieu group home with 24 hours, 7 days a week supervision.” “The supportive environment should also include individual and group therapy along with an on-site community school to maximize [his] stabilization and education.”
A second psychiatrist treated him later that month at Alta Bates Hospital, also pursuant to section 5150. The psychiatrist concluded that S.W. “require[d] a level-14 facility for ongoing stabilization treatment,” had “difficulty in managing his emotions and explosiveness,” and required “placement at a higher level group home than he has been placed at before.”
At the end of May 2007, S.W. was placed at Milhous Children’s Services in Nevada City, California, “to address symptoms of Post Traumatic Stress Disorder that include explosive anger, aggressive/assaultive behavior, threatening, serious awoling, severe opposition, self-harm and risktaking behavior, hypersensitivitiy and hypervigilance.” Milhous had its own on-site school. He was discharged from Milhous in July 2007 for hitting another ward in the head with a wrench.
S.W. was placed in a group home in Alameda County, absconded for a time, and then lost his placement there for safety reasons. In October 2007, he was enrolled in Berkeley High School, where he received positive reports. An October 2007 IEP determined that he still required special education. He also was treated at Willow Rock Hospital in October 2007 pursuant to section 5150.
During this period he was placed in a couple of other programs, but left the first because of his section 300 status and the second because it closed. In late November 2007, S.W. was moved to Tayler group home, and in December he was enrolled in Oakgrove High School in San Jose. In December 2007, he was discharged from Tayler and detained in juvenile hall after not complying with the program, educational, and other requirements of the home and for attacking a Tayler staff member.
2008
In January 2008, a week after he was placed in another group home, S.W. was found intoxicated and was treated at San Leandro Hospital. He was discharged from his latest group home and placed with his former foster family, but a few months later was no longer welcome there because of his “incorrigible behavior.”
In February 2008, a section 602 petition filed in San Joaquin County alleged that S.W. had committed one count each of robbery and petty theft, and two counts of criminal threats. He allegedly took a pack of cigarettes from a store after threatening a witness and asking the store clerk, “Do you wanna die?” S.W. admitted to one misdemeanor charge of criminal threats, and the remaining charges were dismissed. S.W. was detained and the case was ordered transferred to Alameda County for disposition.
Also in February 2008, a petition filed in Santa Clara County alleged that S.W. committed two counts of battery on staff members at Tayler and resisted arrest. S.W. admitted to committing one count of misdemeanor battery, and to resisting arrest, the remaining count was dismissed, and this case was also transferred to Alameda County for disposition.
The juvenile court in Alameda County ordered a guidance clinic evaluation for S.W. to determine, in part, whether he was emotionally disturbed or intellectually impaired, and what type of setting would be most beneficial to him. The resulting report stated that S.W. was generally “paranoid” and suffered from an “underlying depression,” and that his delinquent behavior was viewed as resulting from “a combination of mental disturbance and childhood trauma.” It noted that he currently had an IEP “to address his learning disability, emotional and behavior issues, i.e., truancy, verbal and physical altercations, non-compliance, defiant behavior, and stealing.” It further stated that S.W.’s “psychiatric problems supersede his behaviors,” that S.W. was “disruptive in the community, at school, group homes, foster care, highly structured placements, and locked facilities,” and that “[p]sychiatric treatment for [S.W.] is extremely important” and “of upmost [sic] importance to improve [his] ability to become a productive citizen.” The report concluded that S.W. could be best rehabilitated in a secure environment away from the community in order to address his indiscriminate violence and aggressiveness.
At the June 11, 2008 disposition hearing, the court adjudged S.W. to be a ward of the court and ordered him placed at Trinity Sacramento group home. There, S.W. misbehaved and was found to be “defiant” and to have “a very poor attitude;” he was transferred to New Dawn group home in Oakland, from which he soon disappeared. A supplemental section 777 petition was filed in Alameda County alleging that S.W. had violated the terms of his court-ordered placement at New Dawn by leaving the facility and remaining away without permission.
2009
S.W. was missing until April 2009, when a section 602 petition was filed alleging that he had recently committed one count of aggravated assault with personal infliction of great bodily injury and one count of battery with serious bodily injury. According to the Berkeley Police Department report, officers were dispatched on April 8, 2009 to a Bonar Street apartment, where a woman reportedly had been attacked by a 17-year-old black male wearing a white t-shirt and black pants who had a knife. At the scene, an injured woman was being treated by paramedics. Police saw a young man matching the dispatcher’s description walking away, and caught him when he ran away. The injured woman and a second woman identified S.W. as the person responsible for the assault, which occurred in a nearby apartment.
S.W. first identified himself by a false name, then admitted his true name, waived his Miranda rights, and admitted assaulting the injured woman. He signed a statement which stated that he was living with the two women, that he became angry because one of the women had “snapped” at him, and that he had wrestled her to the floor and tried to calm her down. The woman had been using a knife while cooking and they struggled over the knife while they argued. When the other woman intervened, he knocked her down and repeatedly punched and kicked her in the face.
According to the police report, the injured woman “had clearly suffered severe trauma to her face. The entire right side of her face was severely swollen. Her right eye was swollen shut, bruised deep purple, and surrounded by red irritated skin. Her right ear with swollen to the point the cartilage was not visible and the ear was steadily bleeding. The right corner of her mouth was swollen and bleeding. She had difficulty talking. [She] was confused and clearly groggy from her injuries. She had difficulty comprehending the questions asked of her by paramedics and [police] [¶]... [¶] [Her] right orbital socket had been fractured on all sides and she had a laceration inside her right ear.” Her vision was possibly permanently damaged and she could no longer work.
The April 10, 2009 petition was later amended to add one count of attempted automobile burglary and one misdemeanor count of resisting, obstructing, or delaying an officer. Another Berkeley Police Department report stated that S.W. had been arrested after being observed with three others attempting to break into a car. The group ignored orders to stop and fled, but S.W. was quickly taken into custody.
S.W. admitted the aggravated assault allegation in the April 10, 2009 petition, and its enhancement and the remaining counts were dismissed. The court found S.W.’s maximum potential confinement term was four years, but the written order contained in record states it as four years and four months.
At the disposition hearing, the court adjudged that S.W. was to continue as a ward of the court and committed him to DJJ. S.W. subsequently filed a timely notice of appeal.
DISCUSSION
I. The Commitment to DJJ
S.W. argues that there is no evidence that a DJJ commitment will benefit him. He also argues that the court never considered relevant evidence, or had full information, regarding his needs, ignored his exceptional educational needs, and failed to adequately consider alternatives to DJJ. He claims that, “because the court found contrary to the record that [S.W.] does not have exceptional educational needs, and all of his needs had not been determined, the DJJ did not have accurate information about him; therefore its screening was inadequate to support any assertion that it could meet [S.W.’s] needs. Thus, the court abused its discretion when it committed [S.W.] to the DJJ,” requiring reversal and “remand for a further dispositional hearing.” He argues in the alternative that, should we affirm his commitment to DJJ, we nonetheless should remand and order the court to specifically determine his special education needs, order an IEP, and forward any findings to the DJJ.
We conclude that the juvenile court did not abuse its discretion, but remand this matter to the court for the limited purpose of making additional findings regarding S.W.’s possible special education needs, and informing the DJJ of these findings.
A. The Disposition Proceedings
In its dispositional report, the probation department stated that the DJJ intake officer advised that “[S.W.] is eligible for commitment and has been classified a category four with baseline parole at two years, jurisdiction until age twenty-five.... At DJJ, [he] would participate in an educational program, substance abuse counseling, mental health counseling, gang intervention, victim awareness and empathy counseling, and possible other rehabilitative services that would be identified during the intake needs assessment. Upon release, he would be under the supervision of the parole office to facilitate his return to the community.”
The dispositional report included a social study which stated that S.W. was not enrolled in school. It also stated: “S.W. grew up in an abusive, dysfunctional family from whom he was eventually removed at age nine years. The early trauma he experienced has gone untreated despite monumental efforts to provide services to him. [He] has an extensive AWOL history and has been in over 30 foster and group home placements. He has a history of psychiatric hospitalization and documented mental disturbance. He has consistently refused treatment and his violent behavior is escalating, and his treatment needs are going unaddressed due to his lack of compliance. [His] need for treatment in a secure setting was identified a year ago, prior to the current offense in which an adult female was brutalized by the minor. [He] stomped on her face with his foot fracturing facial bones and damaging her ear.
“[S.W.] currently has a placement order and left the second placement within two weeks of arriving. His whereabouts were unknown for approximately half a year, before he was arrested for the assault. [His] risk for recidivism and entry into the adult system is extremely high. [He] will soon exhaust all juvenile services available to him therefore in one last effort we recommend that [he] be detained in a secure facility where compliance with [therapy] offered would be mandatory.”
The report contained two different recommendations, one being from the probation department officer and the other from the “Screening for Out of home Services” (SOS) committee. The officer stated that, “[f]or the protections of the community and to provide [S.W.] the therapeutic services he needs, this Deputy believes [S.W.] is suitable for a commitment to DJJ.” However, the SOS committee recommended that his present placement order, with referrals to community agencies that could help him transition into the community, be continued.
The victim stated in her impact statement that she was unable to focus her eyes without seeing double due to the fractures in her face and orbital bones around her eyes. Her injuries might be irreversible, she was still incurring medical expenses, and she was unemployed and needed to relocate.
The disposition hearing began on May 11, 2009. The court noted the different placement recommendations contained in the probation department’s dispositional report. S.W.’s counsel requested that S.W. be screened for other remote secure placements; Rites of Passage, Trinity Yucaipa, and Trinity Whitewater were mentioned in the discussion. The court ordered a continuance of the hearing to “explore the options available to a remote Rite[s] of Passage type placement, including Rite[s] of Passage....”
The report also indicated SOS had recommended that S.W. be placed in a “residential treatment facility.”
The probation department officer submitted a memorandum reporting that S.W. had been screened by, and denied for placement at, Rites of Passage due to his age, which would be at the age of majority when placed, and because he needed a higher level of mental health services than Rites of Passage could provide. The officer recommended a DJJ placement with the approval of probation management.
At the May 26, 2009 disposition hearing, the court noted that Rites of Passage had rejected S.W. because of his age and psychological needs. S.W.’s counsel argued that other secure facilities had not been considered, and that, “[a]lthough this is a very, very serious crime, this young man has a long history of psychiatric hospitalization and documented mental disturbance,” making a DJJ placement inappropriate. The court responded that “DJJ will be able to address all his needs... and this is a case that screams out for DJJ, in my opinion.” It also stated that in 2008, S.W. had had a guidance clinic evaluation that led to a less restrictive placement than DJJ, which had not worked. The court rejected defense counsel’s suggestion that S.W. remain at juvenile hall.
The prosecutor argued that S.W.’s April 2009 assault was “a terrorizing event,” “was extremely brutal, as serious as anything that we see,” that S.W. was “clearly a danger to the public,” and that he had shown no remorse for his actions.
The court adopted the probation officer’s DJJ commitment recommendation. Among other things, the court found, as the probation officer had stated, that S.W.’s mental and physical condition and qualifications were such as to render it probable that he would be benefited “by the reformatory educational discipline or other treatment provided by the [DJJ],” and that “[e]ducational records do not indicate that a determination has been made that this is an individual with exceptional needs.” The court did not order the preparation or transmission of any IEP.
B. Analysis
“In determining the judgment and order to be made in any case in which the minor is found to be a person described in Section 602, the court shall consider, in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor’s previous delinquent history.” (§ 725.5; In re Gary B. (1988) 61 Cal.App.4th 844, 849.)
The juvenile court has broad discretion in determining the appropriate commitment for juvenile offenders. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) Under our deferential standard of standard of review, “ ‘ “[w]e 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., 96 Cal.App.4th 1317, 1330.)
Such statutes as section 202 indicate that courts may consider punishment as a tool of rehabilitation, as well as a concern for the safety of the public. (§ 202.) Thus, “[m]inors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives” of the juvenile law. (Id., subd. (b).) Permissible sanctions may include commitment of the minor to DJJ. (See id., subd. (e)(5).) The rehabilitative purposes of a DJJ commitment are satisfied when there is substantial evidence to support a court’s determination that “the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided” by such a commitment (§ 734), and that less restrictive alternatives are ineffective or inappropriate. (In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.)
1. The DJJ Commitment
S.W. first argues that there was no evidence that he would probably benefit from a commitment to DJJ. According to S.W., given his circumstances, “there must be evidence that the DJJ will provide, in an appropriate environment, the types of counseling, education, and other support services necessary to his rehabilitation. But with the possible exception of providing a secure setting, a characteristic which numerous other facilities for which [S.W.] was not screened can also provide, the record is devoid of evidence the DJJ will meet any of his needs, and in particular his rather significant emotional and educational needs.”
We do not agree that the record is devoid of evidence that he would receive a probable benefit from a DJJ commitment, or that a DJJ commitment was inappropriate. The juvenile court’s commitment decision was based in part on its proper consideration of the probation department’s dispositional report and memorandum, as well as the previous guidance clinic report it had ordered, and addressed the three factors outlined in section 725.5. The court noted that S.W. was “close to 18,” a particularly significant fact given that the Rites of Passage rejection was based in part on his age and the probation department reported that S.W.’s “risk for recidivism and entry into the adult system is extremely high.” The court could reasonably believe that a commitment to DJJ, where S.W. would remain for at least two years and could remain until he turned 25, thereby giving him an extended opportunity to rehabilitate, was a uniquely well-suited placement in light of his age. Second, the seriousness of S.W.’s assault and his juvenile history were discussed in the course of the disposition hearing, and strongly indicated that S.W. would probably benefit by a DJJ commitment, since S.W. had not been reformed by, or even had stayed in, numerous less secure placements. Third, the court considered the gravity of his offense, which plainly merited a DJJ commitment, particularly because he committed the offense after disappearing from a group home placement the previous December.
S.W. either reargues the evidence or speculates about possible other conditions and needs, neither of which can be a basis for reversal. S.W. acknowledges the need to place him in a secure setting, but he neglects to give any weight to its importance to his rehabilitation. There was overwhelming evidence that his placement in such a setting, which DJJ indisputably will provide, is critical to his rehabilitation, based on his inability to stay in his previous placements or school, his lack of reform, and the views and recommendations expressed by those evaluating his case that his placement in a secure, services-providing facility such as DJJ was beneficial to his rehabilitation, continued education, and public safety. (See In re Jonathan T. (2008) 166 Cal.App.4th 474, 486 [noting the benefit of the secure setting for the minor’s rehabilitative care, given that he had attacked another person, run away from home, and acted in a hostile, disrespectful, and aggressive manner with juvenile hall staff].) For example, the 2008 guidance clinic evaluation concluded that S.W. could be best rehabilitated in a secure environment, away from the community, in order to address his indiscriminate violence and aggressiveness. The court also noted that after the 2008 guidance clinic evaluation, S.W. had been given an opportunity to avoid going to DJJ, but this approach had failed. Although there is no requirement that the court find exactly how a minor will benefit from a DJJ commitment (Ibid.), we infer from the court’s comments that it concluded that S.W. would benefit from the security and services provided by DJJ, and that his commitment there would protect public safety. The court could reasonably conclude this under the circumstances. S.W.’s view that he might be as secure in other settings is speculative, and not relevant under our deferential abuse of discretion standard of review.
S.W. also argues that the court failed to fully and sufficiently consider his needs and conditions. Along with the failure to address his exceptional education needs (which we address further below), he argues that the court’s failure to “fully investigate” his needs “greatly undermines any determination that he will benefit from a DJJ commitment, and likewise warrants reversal.” S.W. argues that the court failed to consider unspecified, conditions that he “may” suffer from, as suggested in the probation department report. S.W. would have us reverse the juvenile court’s commitment order based on the “unanswered questions about [S.W.’s] condition and his needs” implied by the probation department’s suggestion. We will not do so based on such speculation.
S.W. further argues that he has been diagnosed for years as being “seriously emotionally disturbed,” and that DJJ “is an inappropriate placement for mentally disturbed youths,” relying on In re Todd W. (1979) 96 Cal.App.3d 408, 418. Todd W., however, was decided before section 202 was changed in 1984 to include punishment for rehabilitative purposes as an objective of juvenile law, and is inconsistent with current law as set forth in section 202. (In re Lorenza M. (1989) 212 Cal.App.3d 49, 57-58.) In any event, the 2008 guidance clinic evaluation noted that S.W. was generally “paranoid” and suffered from an “underlying depression,” and that “[p]sychiatric treatment for [S.W.] is extremely important,” and “of upmost [sic] importance to improve [his] ability to become a productive citizen.” The DJJ intake officer reported to the probation department that S.W. would be able to “participate in an educational program, substance abuse counseling, mental health counseling, gang intervention, victim awareness and empathy counseling, and possible other rehabilitative services that would be identified during the intake needs assessment.” S.W. dismisses as “rote statements” the probation department’s and the court’s comments, but does not establish that the DJJ intake officer’s representations were somehow incorrect; he argues that they do not explain how these programs might benefit S.W without establishing that further explanation was necessary. We conclude that the court could reasonably rely on these representations to conclude that S.W. would probably benefit from DJJ programs regarding his mental health issues.
S.W. also contends that there should have been a further exploration and recommendation regarding alternative facilities, including out-of-state facilities, but that the probation officer investigated only the Rites of Passage. This argument lacks merit. A commitment to DJJ may be made in the first instance, without previous resort to less restrictive alternatives. (In re Asean D., supra, 14 Cal.App.4th at p. 473.) 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.) Furthermore, it was reasonable for the court to conclude that, given S.W.’s age, his history in other placements, and his rejection from Rites of Passage, it would be difficult, if not impossible, to place him in any alternative settings that could equal the security provided by DJJ. S.W. argues that DJJ should be used only as a last resort after all else has failed. While this is not the law, the court could have reasonably concluded that this commitment to DJJ was the last resort because of the failure of so many previous efforts to rehabilitate S.W., particularly given S.W.’s age.
2. Special Education Needs
a. The Court’s Exercise of Its Discretion
S.W. also argues that the juvenile court abused its discretion because “it appears that when [S.W.] was screened for placement by the DJJ, it did not have critical information about... his special education needs. Nor did the court show any awareness of those needs when it ordered the DJJ commitment.” He contends that the trial court ignored evidence that he had “exceptional needs” and made no rulings regarding his special education needs, “despite a case file packed with evidence of those needs over a nine year period, much of which is contained in reports prepared by employees of the Probation Department.” Thus, he argues, the court abused its discretion when it committed him to DJJ, requiring reversal of the dispositional order. We find this argument unpersuasive.
“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.)” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1397-1398, footnotes omitted (Angela M.).) Prior to committing a minor to DJJ, “the juvenile court had a duty to consider or determine whether [the minor has] special educational needs.” (Id. at p. 1398, & fn. 6.)
The juvenile court properly exercised its discretion in committing S.W. to DJJ. As we have discussed, there was ample evidence that S.W. would benefit from a commitment to DJJ, and the court considered his educational needs when it found that he would benefit from the DJJ’s “reformatory educational discipline[.]” (See §734.) The court could reasonably conclude this was the case; indeed it appears that S.W.’s placement in a secure facility such as DJJ is imperative for him to concentrate at all on his educational opportunities. Because there existed ample bases to sustain S.W.’s commitment to the DJJ, we see no justification to vacate that commitment if, as S.W. contends, the court failed to consider his exceptional needs.
Furthermore, S.W. does not prove his contention that the juvenile court did not have “critical information” about his special education needs. S.W. acknowledges that information regarding previous IEPs was contained in the court’s records. Furthermore, the court, although it did not refer directly to any previous IEP at the disposition hearing, recalled the 2008 guidance evaluation report, which did refer to an IEP, and stated in the same discussion that DJJ “will be able to address all his needs.” In the absence of an affirmative error being demonstrated, we must presume that the court considered all relevant criteria. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 836) and that it applied the correct statutory and case law (People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430). Thus, we conclude that the court was aware that S.W. was subject to previous IEPs and concluded that the DJJ could address any special education needs S.W. still might have when it committed him to DJJ.
S.W. also does not prove his contention that the court made a finding which shows that it did not take into account his exceptional needs. S.W. bases this argument on the false premise that the juvenile court reached the “conclusion that he does not have [exceptional] needs.” The actual statement by the court, and the probation department, was that “[e]ducational records do not indicate that a determination has been made that this is an individual with exceptional needs.” On its face this statement is not necessarily inaccurate. Given its present tense, the court (and the probation department) could have been merely indicating that there was no active IEP, which was accurate because S.W. was not enrolled, and had not for some time attended, any school when he was apprehended in April 2009.
Therefore, we conclude that S.W.’s abuse of discretion argument as it relates to S.W.’s exceptional needs fails. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135 [appellant has the burden of showing affirmative error], disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
b. Further Consideration of S.W.’s Special Education Needs
S.W. argues in the alternative that, if we affirm the DJJ commitment order, we should nonetheless remand this matter to juvenile court with instructions to specifically determine whether to conduct an evaluation of S.W.’s special education needs, order an IEP, and forward any findings to the DJJ. We agree that a remand to the juvenile court is appropriate to make additional findings regarding any special education needs S.W. may have, and we order the juvenile court to transmit this additional information to the DJJ.
In Angela M., Angela had undergone a psychological evaluation prior to her commitment to the California Youth Authority (CYA, predecessor to the DJJ), that strongly indicated she had a disability and recommended that she undergo an IEP assessment. (Angela M., supra, 111 Cal.App.4th at p. 1395.) The juvenile court did not order such an assessment, or further consider her possible special education needs, before committing Angela to CYA (id. at pp. 1395-1396, 1399), although the psychological evaluation placed it “clearly on notice that Angela may have special educational needs.” (Id. at p. 1398.) The appellate court concluded that by doing so, the juvenile court had failed to fulfill its mandatory obligation to consider or determine Angela’s potential special education needs. (Id. at p. 1399.) The appellate court ordered a limited remand “to permit the juvenile court to make proper findings, on a more fully developed record, regarding Angela’s educational needs.” (Ibid.)
Here, the juvenile court was similarly on notice that S.W. might have special education needs that the DJJ should address because of the previous IEPs indicated in the record. For example, the 2008 guidance clinic report referred to an active IEP, and the record also contains documents from an April 2007 IEP that was conducted when S.W. was enrolled in San Leandro High School. The juvenile court’s finding that no determination had been made that S.W. had exceptional needs, although not necessarily inaccurate, was incomplete because it did not refer to these previous IEPs or include any evaluation of S.W.’s potential “special education needs.” (Angela M., supra, 111 Cal.App.4th at p. 1399.) Thus, the juvenile court’s dispositional and commitment orders did not include any such IEP information or evaluation for the DJJ’s consideration. These circumstances are sufficiently analogous to those discussed in Angela M. for us to conclude that the juvenile court, in order to fully meet its obligations regarding S.W.’s potential special education needs, should further consider these needs and inform the DJJ of its findings.
Therefore, we remand this matter to the juvenile court to further consider S.W.’s potential special education needs, including consideration of all IEP information available to the court. The juvenile court should amend its dispositional and commitment orders to include its additional findings, and transmit these findings and all IEP information available to the DJJ. (Angela M., supra, 111 Cal.App.4th at p. 1399; see § 1742.)
The appellate court in Angela M. ordered the juvenile court to conduct an IEP. (Angela M., supra, 111 Cal.App.4th at p. 1399.) However, this appears to be because the juvenile court had ignored a psychologist’s unchallenged testimony that she “ ‘must undergo’ ” an IEP assessment. (Id. at p. 1395.) Here, there was no such testimony, and the record contains an April 2007 IEP and references to other IEPs. S.W. argues for the first time in his reply brief that it was likely that S.W.’s situation required an IEP reassessment pursuant to Education Code section 56043. We do not further consider this argument because it is tardy. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) We also note that the DJJ is required to conduct its own assessment of S.W.’s education needs upon commitment, (§ 1120, subd. (b)) and may have done so already. We leave it to the discretion of the juvenile court to determine whether to order an updated IEP upon remand.
Section 1742 states in relevant part that “[w]hen the juvenile court commits to the [DJJ] a person identified as an individual with exceptional needs, as defined by Section 56026 of the Education Code, the juvenile court, subject to the requirements of subdivision (a) of Section 727 and subdivision (b) of Section 737, shall not order the juvenile conveyed to the physical custody of the [DJJ] until the juvenile’s individualized education program previously developed pursuant to Article 3 (commencing with Section 56340) of Chapter 4 of Part 30 of Division 4 of Title 2 of the Education Code for the individual with exceptional needs, has been furnished to the [DJJ].”
II. The Custody Credits Should Be Recalculated
S.W. claims that the juvenile court failed to determine his “custody credits for the entire period prior to his transfer to DJJ.” The People concur; we do as well.
At the disposition hearing, the court calculated S.W.’s credits at 49 days up to the date of disposition, and counsel did not object. However, S.W. is also entitled to custody credits for the additional days between disposition and his transfer to DJJ. (In re J.M. (2009) 170 Cal.App.4th 1253, 1256.) S.W. correctly points out that the record is silent about when he was ultimately transferred to DJJ. Therefore, we remand this matter for the juvenile court to make the appropriate calculation.
III. Maximum Confinement Term
S.W. argues, and the People agree, that the clerk’s transcript incorrectly indicates his maximum term of confinement is four years and four months, rather than four years. We agree as well.
A minor cannot be held in physical confinement for a period of time in excess of the maximum period of imprisonment for an adult convicted of the same offense. (§ 731, subd. (c).) The reporter’s transcript indicates that the juvenile court expressly found S.W.’s maximum term of confinement to be four years, which is the maximum term for aggravated assault under Penal Code section 245, subdivision (a)(1). The additional four months stated in the clerk’s transcript may have been based on the misdemeanor criminal threats adjudication from San Joaquin County, as was argued by the prosecutor at the disposition hearing. The court, however, did not aggregate S.W.’s maximum term of confinement with this adjudication because the prosecutor failed to provide notice of such potential aggregation. On this record, as the parties acknowledge, the juvenile court’s oral pronouncement prevails. (People v. Farrell (2002) 28 Cal.4th 381, 384, fn. 2.)
Therefore, we order the trial court upon remand to correct the clerical errors in the April 27, 2009, and May 26, 2009, minute orders, and the DJJ commitment order, to reflect that S.W.’s maximum term of confinement is four years.
DISPOSITION
The court’s dispositional order committing S.W. to DJJ is affirmed. We remand this matter to the juvenile court to further consider S.W.’s potential special education needs, including consideration of all IEP information available to the court. The juvenile court should amend its dispositional and commitment orders to include its additional findings, and transmit these findings and all IEP information available to the DJJ. We also instruct the juvenile court to recalculate S.W.’s custody credits, and prepare corrected minute orders and a DJJ commitment order, to be forwarded to DJJ, which state S.W.’s maximum term of confinement as four years.
We concur: Haerle, Acting P.J., Richman, J.