In re D.K.

Filed 7/3/07 In re D.K. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Peter A. Warmerdam, Juvenile Court Referee, and Robert Anspach, Judge.

Candice L. Christensen, 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, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant D.K. contends (1) the juvenile court failed to comply with applicable law in determining he was not an individual with exceptional educational needs; (2) the juvenile court erred in failing to declare at disposition whether his offenses in the current and previously sustained petitions were misdemeanors or felonies; and (3) the juvenile court abused its discretion in its commitment choice.

We will affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

On May 30, 2006, D.K. and S.V. stole a vehicle. S.V. was driving the vehicle when it crashed into an inhabited dwelling, injuring a 17-month-old child. Both D.K. and S.V. fled the scene. The 17-month-old child sustained injuries to both legs and required surgery.

On June 12, 2006, the Kern County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602 alleging D.K., then 16 years old, had (1) conspired to, and did, take a vehicle without the owners permission; (2) recklessly evaded police in the vehicle and caused injury to another; (3) failed to report a vehicle collision; and (4) violated probation. In a negotiated plea, D.K. admitted conspiring to and taking a vehicle without the owners permission and violating probation.

D.K. had four previously sustained wardship petitions for offenses, such as receiving stolen property, fighting in public, felony grand theft, assault with a deadly weapon, and several violations of probation. Pursuant to the prior sustained petitions, D.K. had been placed on formal probation and later in juvenile boot camp.

After the fifth petition was sustained, the juvenile court aggregated the previously sustained petitions and committed D.K. to the Department of Corrections and Rehabilitation, Juvenile Justice (DCR), for a period of five years nine months.

DISCUSSION

D.K. contends the juvenile court failed to comply with applicable law in determining he was not an individual with special educational needs and abdicated its responsibility to appoint an educational representative. He also contends the juvenile court erred in failing to declare whether the wobbler offenses in his current and previously sustained petitions were felonies or misdemeanors.

We review a juvenile courts commitment decision for abuse of discretion, indulging all reasonable inferences to support its decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)

I.Individual with Exceptional Needs

When the juvenile court commits a minor to DCR, if the minor is an individual with exceptional needs, the minor shall not be committed to the physical custody of DCR until the minors individual education plan has been furnished to DCR. (Welf. & Inst. Code,  1742.) Education Code section 56026, subdivision (a) defines an individual with exceptional needs as a person who has been [i]dentified by an individualized education program team as a child with a disability. Subdivision (e) of that code section provides that pupils whose educational needs are due primarily to social maladjustment or environmental, cultural, or economic factors are not individuals with exceptional needs.

The juvenile court found that D.K. was not a child with exceptional educational needs. D.K. contends that his history of threatening other children, stealing, damaging property, fighting, truancy, and general poor behavior and attendance at school supports his contention that he is an individual with exceptional needs. D.K. also points to his comment to his probation officer that he thought he was supposed to be on medication at some point, but his parents opposed it, as further support for his claim that he is an individual with exceptional needs.

First, there is no evidence that D.K.s behavior was indicative of a disability warranting an individual education program (IEP) as opposed to establishing that he suffers from social maladjustment or environmental factors, neither of which warrants an IEP. (Ed. Code,  56026, subd. (e).)

Second, D.K.s argument ignores the critical language of Education Code section 56026, subdivision (a) that in order to qualify as an individual with exceptional educational needs, one must first be assessed by an IEP team. There is no record evidence that D.K. ever was assessed and determined to be an individual with exceptional educational needs.

Welfare and Institutions Code section 1742 requires that when a juvenile has an IEP, that IEP shall be furnished to DCR prior to a transfer of physical custody. We are unaware of any requirement, however, that a juvenile who is not subject to an IEP be assessed by an IEP team prior to being committed to the physical custody of DCR to determine if an IEP is needed. In fact, Welfare and Institutions Code section 1120, subdivision (b) states that DCR shall conduct an initial assessment of a ward to determine the appropriate education plan for the ward and an annual assessment thereafter.

D.K.s reliance on In re Angela M., supra, 111 Cal.App.4th 1392 is misplaced. In Angela M., the juvenile court failed to make any finding regarding whether the juvenile was an individual with exceptional needs, even though there was medical testimony establishing that Angela was bipolar and probably suffered from attention deficit hyperactivity disorder (ADHD), and the medical expert recommended that she be assessed by an IEP team. (Id. at pp. 1398-1399.) Here, there was no medical evidence and the juvenile court found that D.K. was not such an individual.

As for D.K.s contention that the juvenile court had an obligation to appoint a responsible adult pursuant to California Rules of Court, rule 5.790(f)(5) to make educational decisions for him, he is mistaken. There is no evidence that D.K.s parents were not capable of making educational decisions for him, even though they apparently were unable to control D.K.s defiant and antisocial behaviors. Furthermore, once committed to DCR, D.K.s educational needs were to be assessed and determined by DCR, who became responsible for his rehabilitation, including providing for his educational needs. (Welf. & Inst. Code,  1120, subd. (b); In re Allen N. (2000) 84 Cal.App.4th 513, 515-516.)

We conclude the juvenile court fulfilled its obligations concerning D.K.s educational needs and did not abuse its discretion when finding he did not have special needs.

II. Determination of Wobbler Offenses

Welfare and Institutions Code section 702 provides in part: If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony. If the juvenile court fails to make a formal declaration, remand is not automatic. (In re Manzy W. (1997) 14 Cal.4th 1199, 1209.) That the juvenile court was aware of, and exercised, its discretion may be shown by the record. (Ibid.)

D.K. contends the juvenile court erred when it failed to make this determination with respect to the offenses in the current and previously sustained petitions.

As to the previously sustained petitions, the record reflects that a determination was made on the offenses set forth in the prior sustained petitions. In one instance, the juvenile court declared a prior wobbler offense to be a felony. In another, the petition alleged the offense as a felony and D.K. admitted the felony allegation. At the disposition on the current petition, the juvenile court noted that the two prior offenses had been sustained as felony offenses.

Regarding the current wobbler offense, the violation of Vehicle Code section 10851, subdivision (a), the record does show that the juvenile court was aware of its discretion at sentencing. The juvenile court judge noted that the offense was not the most serious of crimes that we deal with. The juvenile court, however, also considered the facts and circumstances of the current offense and the prior unsuccessful attempts to reform D.K. Prior to imposing the maximum period of confinement, the juvenile court referenced the violation of Vehicle Code Section 10851, a felony.

In our view, the record reflects that the juvenile court judge understood and exercised his discretion to treat the Vehicle Code offense as a felony instead of a misdemeanor. Therefore, remand for the juvenile court to make this determination is not required. (In re Manzy W., supra, 14 Cal.4th at p. 1209.)

III. No Abuse of Discretion on Commitment Choice

An appellate court reviews a commitment decision for abuse of discretion. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) The record must demonstrate that the commitment choice would be of probable benefit to the minor and that less restrictive alternatives have been or would be ineffective. (In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.)

D.K. contends the trial court abused its discretion in committing him to DCR. He maintains that his claimed ADHD means he is a mentally disturbed minor who should not be committed to DCR. Further, he contends the commitment was unnecessarily punitive.

Prior to committing D.K. to DCR, the juvenile court noted (1) this was the fifth sustained petition; (2) D.K. had been placed in increasingly restrictive environments, including probation, boot camp, and juvenile hall; and (3) D.K. had failed to reform or correct his behavior in these less restrictive environments. This satisfied the requirement that the juvenile court consider the effectiveness of less restrictive placements. (In re Pedro M., supra, 81 Cal.App.4th at pp. 555-556.)

In addition, the juvenile court noted that D.K.s offenses were increasing in seriousness and that he had numerous violations of probation. The latest offenses by D.K. had resulted in significant injuries to a toddler. A concern for public safety and the concept of punishment as a rehabilitative tool are valid considerations in determining an appropriate commitment. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.)

Furthermore, regarding D.K.s claim that his ADHD means he should not be committed to DCR because he is a mentally disturbed minor, there is no evidence that he has ADHD. As D.K. acknowledges, even if he were suffering from ADHD, this condition does not qualify as a mental disorder. Additionally, Welfare and Institutions Code section 1120, subdivision (b) requires DCR to conduct an assessment in order to determine the appropriate educational plan for D.K. Pursuant to this assessment, if D.K. is suffering from ADHD, this will be taken into account in developing his educational plan.

We conclude the juvenile court did not abuse its discretion in committing D.K. to DCR. (In re Robert H., supra, 96 Cal.App.4th at pp. 1329-1330.)

DISPOSITION

The order is affirmed.

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CORNELL, J.

WE CONCUR:

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LEVY, Acting P.J.

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DAWSON, J.

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