Opinion
F061405 Super. Ct. No. 510382
12-14-2011
In re RUDY V ., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. RUDY v. , Defendant and Appellant.
Candice L. Christensen, under appointment the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Susan D. Siefkin, Judge.
Candice L. Christensen, under appointment the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Rudy V. appeals from a disposition order committing him to the California Department of Corrections, Division of Juvenile Justice (DJJ). He contends (1) the juvenile court erred in imposing both the three-year great bodily injury enhancement and the 10-year gang enhancement to his adjudication of assault by means of force likely to produce great bodily injury, and (2) the juvenile court erred by failing to find that he was an individual with exceptional educational needs and failing to transfer his current individualized education program (IEP) to the DJJ. These contentions have merit; we affirm the juvenile court's order committing appellant to the DJJ, and remand the matter to the juvenile court with directions.
BACKGROUND
On November 20, 2007, appellant admitted one count of misdemeanor automobile theft (Veh. Code, § 10851, subd. (a)). He was declared a ward of the court and placed on probation. On April 8, 2008, appellant admitted to violating probation. The court continued appellant on probation and ordered him to serve 60 days in juvenile hall.
On April 15, 2008, a subsequent petition was filed charging appellant with assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 1) and battery resulting in serious bodily injury (Pen. Code, § 243, subd. (d); count 2). Both counts pertained to a single victim. It was further alleged that the offenses were committed for the benefit of a criminal street gang (Pen. Code, § 243, subd. (d)). On May 15, 2008, a first amended petition amended was filed, adding the allegation that, in the commission of count 1, appellant personally inflicted great bodily injury on the victim (Pen. Code, § 12022.7, subd. (a)). On June 12, 2008, appellant admitted count 1 and the special allegations. The court continued appellant on probation and ordered him to serve 180 days in juvenile hall.
Over the next two years, appellant violated probation four times and served time in juvenile hall. After he admitted the fourth probation violation, the matter came on for a contested disposition hearing on September 22, 2010. At the September 22 hearing, the court ordered appellant committed to the DJJ and set the maximum term of confinement at 204 months (17 years), which was calculated as follows: 48 months (four years) for count 1 plus 120 months (10 years) for the gang enhancement and 36 months (three years) for the great bodily injury enhancement.
DISCUSSION
I. Great Bodily Injury and Gang Enhancements
Appellant contends, respondent concedes, and we agree that the juvenile court erred in imposing both the great bodily injury enhancement and the gang enhancement with respect to appellant's adjudication of assault with force likely to produce great bodily injury under count 1.
Penal Code section 1170.1, subdivision (g), provides:
"When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm."
People v. Gonzalez (2009) 178 Cal.App.4th 1325, 1327-1328, concluded that the imposition of a three-year great bodily injury enhancement and a 10-year gang enhancement violates subdivision (g) of section 1170.1. The court relied on People v. Rodriguez (2009) 47 Cal.4th 501, 508-509, a decision that held that the similar provision of subdivision (f) of section 1170.1, which addresses multiple punishments for using a dangerous or deadly weapon, prevented the imposition of two enhancements.
We agree that in this case that count 1 can be enhanced only with the 10-year (120-month) gang allegation and the three-year (36-month) great bodily injury enhancement must be stricken. On remand, the juvenile court is directed to strike the great bodily injury enhancement from the disposition and commitment orders, resulting in a maximum period of confinement of 168 months.
II. Exceptional Educational Needs
At the disposition hearing on September 22, 2010, the juvenile court stated: "[T]he minor has no special needs. He did have an individualized, education plan, which was last updated in May of 2010. That individualized, education plan will be furnished to [DJJ], and will be attached. He is is now 18 and a half years old." Appellant contends the court erred by failing to find that he was an individual with exceptional educational needs and by failing to transfer his current IEP to DJJ. We agree.
A. Statutory and Regulatory Background
Education Code section 56000, subdivisions (a) and (e) declare that "all individuals with exceptional needs have a right to participate in free appropriate public education and special educational instruction and services," and states, "It is the further 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 federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.)."
"Individuals with exceptional needs" means those persons who meet each of several requirements enumerated in section 56026, including, as relevant here, that such persons be "Identified by an individualized education program team as a child with a disability, as that phrase is defined in [the specified portion] of the United States Code" (Ed. Code, § 56026, subd. (a)), and that "[t]heir impairment, as described by [Education Code section 56026,] subdivision (a), requires instruction and services which cannot be provided with modification of the regular school program" (Ed. Code, § 56026, subd. (b)).
Education Code section 56001 provides in relevant part that "It is the intent of the Legislature that special education programs provide [inter alia]: [¶] ... [¶] (e) Each individual with exceptional needs shall have his or her educational goals, objectives, and special education and related services specified in a written [IEP]." When a child has an IEP and the juvenile court orders the child committed to the DJJ, the child cannot be conveyed to the DJJ until the IEP has been furnished to the DJJ. (Welf. & Inst. Code, § 1742.)
An IEP is a written statement for a child with a disability that includes, among other information, (1) a statement of the child's present levels of educational performance, including how the child's disability affects the child's participation and progress in the curriculum; (2) a statement of measurable annual goals, including benchmarks or short-term objectives for meeting the child's educational needs; (3) a statement of the special educational and related services the child will receive; and (4) an explanation of the extent to which the child will not participate in regular education programs. (20 U.S.C. § 1414(d)(1)(A)(i).)
B. Analysis
It is undisputed that appellant qualifies as an individual with exceptional needs within the meaning of Education Code section 56026, and that the juvenile court's contrary finding was, in respondent's words, "inconsistent with the entire record." The record indicates that, although the juvenile court and probation officer were aware that appellant was a special education student and had a current IEP, they erroneously assumed appellant no longer qualified as an individual with exceptional needs because he was over the age of 18 and, therefore, erroneously concluded that the "issue about special needs" was "moot." (See Ed. Code, § 56027, subd. (c).)
Respondent, however, contends the court's erroneous finding that appellant did not have special needs was harmless because the court ordered that appellant's current IEP be provided to the DJJ, and the DJJ has its own duty to assess appellant's educational needs. We disagree. It is the juvenile court's duty to make sure the DJJ is aware of appellant's educational needs and the record contains affirmative evidence suggesting appellant's IEP was not properly transmitted to the DJJ. In the record, item 11b. of the commitment order (Judicial Council form JV-732) is checked, indicating appellant has an IEP, which "is included" with the order. But, no IEP appears in the record. Appellant requested a supplemental record on appeal to include the IEP referenced in item 11b., but in a declaration dated January 26, 2011, the deputy clerk of the Stanislaus Superior Court stated she was unable to locate any document satisfying the request.
On remand, the juvenile court is directed to make a finding that appellant is an individual with exceptional needs within the meaning of Education Code section 56026 and comply with the requirements for providing appellant's IEP and pertinent information concerning his educational needs to the DJJ.
DISPOSITION
The order committing appellant to the DJJ is affirmed. The matter is remanded to the juvenile court for proceedings consistent with this opinion.
HILL, P. J.
WE CONCUR:
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CORNELL, J.
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FRANSON, J.