Filed
12/2/13 In re I.F. 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
In re I.F., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
I.F.,
Defendant and
Appellant.
F065385
(Super.
Ct. No. 512523)
APPEAL from
a judgment of the Superior Court of
County. Nan Cohan Jacobs, Judge.
Gabriel C.
Vivas, under appointment by 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, Charles A. French and John G. McLean,
Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In February
2012, a juvenile delinquency petition
was filed alleging that appellant I.F. committed assault likely to produce
great bodily injury based on an incident in juvenile hall. (Welf. & Inst. Code, § 602,
subd. (a); Pen. Code, § 245, subd. (a)(4).) After a contested jurisdictional hearing in
May 2012, the allegation was found true.
In July 2012, the juvenile court declared the offense to be a felony, adjudged
I.F. to be a ward of the court, and ordered him committed to the Department of
Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), for a term
of 16 months. Combined with the terms
for his previously sustained petitions, I.F.’s maximum period of confinement
was eight years eight months.
On appeal, I.F.
contends that (1) juvenile hall staff violated his
medication prescribed for the treatment of his Attention Deficit Hyperactivity
Disorder (ADHD); (2) he received ineffective assistance of counsel when
defense counsel failed to investigate or present any evidence regarding his
ADHD and the withholding of medication in his defense at the jurisdictional
hearing; (3) the juvenile court failed to comply with California Rules of
Court, rule 5.651 (hereafter rule 5.651); and (4) the cumulative
impact of these errors deprived him of his right to due process and a fair
trial. We find I.F.’s contentions
unpersuasive and will affirm the juvenile court’s adjudication and orders.
FACTS
1. Jurisdictional hearing
a. Prosecution evidence
On
February 5, 2012, while minors in juvenile hall were lining up for lunch, I.F.
jumped out of line and began striking C.M. rapidly in the face and head. I.F. struck C.M. between 8 and 10 times,
inflicting a gash above C.M.’s right eye. C.M. did not fight back but tried to block his
face.
Correctional
Officer Valdemar Cadena gave a “cover command†and the other minors got down on
the ground. I.F. continued trying to hit
C.M. until Correctional Officer Raffie Gharibian subdued I.F.
placed him in handcuffs. Gharibian heard
I.F. say, in a loud voice, “Fuck all scraps.â€
Cadena did not hear I.F. make this statement.
b. Defense evidence
I.F. admitted
striking C.M. 8 to 10 times. When asked
why, I.F. explained it started the night before the incident when he called his
mother and learned that she and his little sisters had gotten into a car
accident. This made I.F. mad, sad, and
worried. Then, the day of the incident, C.M.
made verbal threats, saying he was going to kill I.F. and his family. C.M. also made visual threats, throwing
punches in the air and pointing at I.F. Even
though officers were present, I.F. felt threatened when he and the other minors
were lined up in the hallway. He thought
C.M. was going to attack him when they went to get their meal.
On
cross-examination, I.F. admitted he was a Norteño gang member. He denied attacking C.M. because he was a
Sureño gang member. According to I.F., C.M.’s
gang affiliation had nothing to do with the attack. I.F. attacked C.M. because of the threats C.M.
made. I.F. believed C.M. intended to
carry out his threats. I.F. did not
report the threats to juvenile hall staff because he knew he could handle it
himself. He intended to continue hitting
C.M. until he “knew he had enough.â€
I.F.’s ADHD
After
listening to closing argument, the juvenile court found true the allegation
that I.F. committed assault likely to produce great bodily injury and reserved
a ruling on a felony or misdemeanor disposition to the time of the
dispositional hearing. The following are
some of the comments the court made in explaining its true finding on the
assault allegation:
“So the
issue in this case is: Did [I.F.] act
intentionally and willfully and apply force that was likely to produce great
bodily injury?…
“The
injury sustained by [C.M.] in and of itself was not a serious injury.…
“However,
that’s not the key. The issue is whether
the force that was exercised by the minor was likely to cause great bodily
injury.
“And
after considering all the evidence, particularly, [I.F.], listening to your
testimony, I find that it was. One of
the facts that particularly persuaded me was your comment that your intent was
to hit him until he had had enough. You
intended to beat this young man into submission. And that is particularly chilling.
“As to
the self-defense argument, I also looked at the CALCRIM instructions on
self-defense to see if that would possibly justify the conduct. And in that regard, I looked at CALCRIM [No.] 3470
and 3471. [¶] … [¶]
“Under
the circumstances, I find it hard to believe that the threat, even if I believe
you, [I.F.], that [C.M.] had made verbal threats to you and your family and
that he had been basically shadow boxing across the unit.…
“Even
if I believe that to be true, nevertheless, I have to find that the threat was
imminent. When you were going to lunch,
there has to have been an imminent threat that you were going to be harmed. I have not heard any testimony from anyone
that there was any imminent threat of harm to you at that point in time.
“And
when we heard the testimony from both the witnesses, both the correctional
officers in the Hall, that [C.M.] did not take any defensive measures whatsoever. He just took it. And that you punched him by all three
[ac]counts eight to ten times in rapid succession.
“Also
under CALCRIM [No.] 3471, it talks about the right to self-defense in
cases of mutual combat or initial aggressor.
So, for instance, it’s not disputed that you were the initial aggressor
here.
“In order to invoke,
successfully invoke self-defense, the evidence has to show that you actually
and in good faith tried to stop fighting and indicated by word or conduct in a
way that a reasonable person would understand that you wanted to stop
fighting. So, basically, you’d have to
say Stop, I’m done. That never
happened. [C.M.] never put up any
defense whatsoever.
“So after reviewing the law and
considering the evidence, I’m particularly disturbed about the comments by the
one witness that he overheard the comment—let me find it in my notes. This was from Mr. Gharibian where he said, he
heard you say in a loud voice, ‘Fuck all scraps.’ And that is a direct quote.
“It appears to me that this was
a gang-related incident provoked by gang tension. And that in and of itself I think shows that
this was not a self-defense. But even if
I ignore that, even if those comments had not been made, the elements of
self-defense have not been satisfied.â€
After the
juvenile court made its ruling, defense counsel raised the issue of I.F.’s ADHD,
resulting in this discussion:
“[DEFENSE COUNSEL]: … One
thing I want to make sure that the Court understands, and I have not introduced
this up until now, specifically, because I have considered this to be a
mitigating factor.
“My client has a diagnosis,
according to his family as well as from medical records that I do have, of ADHD
of a substantial nature. And, obviously,
impulsivity is one of the sidebars of ADHD, and I do have some records.
“I would almost like to make
sure that the probation officer, who is handling this report, is at least aware
of this diagnosis. I know the mother is
most certainly prepared to attest to it, and I can, in fact, send his diagnostic
materials or at least these materials that I have to the Probation
Department. I will also send a copy to
the D.A., if that is appropriate.
“THE COURT: Certainly that is a factor we can consider.
“[THE PROSECUTOR]: The Court knows my feelings about it.
“THE COURT: And I know I have expressed my feelings on
mental health issues. I don’t know about
the extent of [I.F.’s] disability from ADHD.
“My general feeling, [defense
counsel], is that we can’t allow kids to use mental health issues as an excuse
to justify breaking the law or bad behavior.
“[DEFENSE COUNSEL]: Oh, I concur with you, your Honor.
“THE COURT: And I understand that sometimes their
impulsivity makes it more difficult for them to comply with the rules that society
imposes. But the rules don’t go
away. And the law doesn’t say that you
cannot assault someone and that your assaults can be excused if you have
ADHD.
“[DEFENSE COUNSEL]: I understand, your Honor. But one of the things is that there are
situations like [I.F.’s] and this is where, I think, our records will probably
end up showing, is that the—my client when he is in a more difficult situation
with the ADHD. He is not getting his
medical assistance that he requires. It’s
my belief, based upon my discussions with his mother, he was not receiving
appropriate medication for ADHD until just recently until she submitted several
requests that he, in fact, receive those medications.
“So this is just—and I
appreciate that it is not a defense, your Honor. Again, I’m not saying it is a defense, but
sometimes there are mitigating factors.
“THE COURT: And I can consider that.â€
2. Dispositional hearing
a. Probation officer’s
report/dispositional social study
As pertinent
to the issues raised in this appeal, the probation officer reported that I.F. (born
April 1994) was a special education student and had been in juvenile hall the
majority of the past school year.
The
probation officer further reported that I.F.’s mother, C.P. (mother), had
provided additional information she wanted included in I.F.’s dispositional
report for the juvenile court’s review.
Specifically, she provided documents from Golden Valley Health Center,
indicating I.F. was diagnosed with ADHD and had been under a doctor’s care
since October 8, 2010. I.F. had
been treated with 15 milligrams of Adderall XR and was supposed to take the
medication daily.
The
probation officer attached to the report a letter written by mother addressing
the juvenile court. According to the
letter, when mother received a “booking call†from juvenile hall staff on
January 30, 2012, she informed them that I.F. was currently on two
different medications for ADHD and anxiety.
When she visited I.F. on February 1, 2012, mother asked him if they
were already giving him his medications and he said no.
The next
day, mother contacted the psychiatric nurse in juvenile hall and asked why they
were still not giving I.F. his medications.
The nurse said she would check his file and “realized†that I.F. was supposed
to be on medication. Mother assumed they
were going to start giving it to him.
Then the February 5th incident happened, and mother “had a feeling
they were still not giving him the medication .…â€
Mother waited
to visit I.F. again and asked him at the visit whether he was taking his
medication. When I.F. said no, mother became
upset and called the nurse again. Mother
explained what happened and told the nurse that if they had given I.F. his
medication, “none of this would of happened .…â€
The
psychiatrist called mother the next day to get her “ok†to start I.F. on his
ADHD medication. According to mother,
they did not start I.F. on his ADHD medication until mid-March, and they did
not start him on anxiety medication until May 2, 2012.
Mother wanted
the court to know that, without his medication, I.F. was “like a firecracker†and
unable to “function.â€
At the
dispositional hearing, mother testified regarding the circumstances she
described in her letter. According to
her testimony, when I.F. was arrested and brought into juvenile hall, she
notified staff that I.F. had a diagnosis of ADHD and required medications, specifically
20 milligrams of Adderall for ADHD and 50 milligrams of Zoloft for anxiety.
On her
first visit, mother asked I.F. if he was getting his medication and he said
no. On her way out, she visited the
nurse and continued to follow up with three or four calls before the
February 5 incident occurred.
After the
incident, mother came in herself and spoke with the nurse about I.F.’s need for
medication. The nurse said she could not
“ok†it and that she would talk to the psychiatrist, who was the only one who
could. The nurse apologized that they
did not give I.F. his medications, noting their records indicated they had
given him his medications in the past.
Although I.F.
was 18, mother thought I.F. was eligible to finish high school as a special
education student, noting that he had an individualized education program (IEP). At this point, the juvenile court
interjected:
“THE
COURT: While we’re on that subject,
[probation officer], does [I.F.] have a current IEP?
“THE
PROBATION OFFICER: Your Honor, I
contacted Juvenile Hall this morning to find out about that. For some reason he’s not in special ed here
in Juvenile Hall. Why, I have no idea.
“According to [mother], she
went, which this—the letter that was completed for the IEP was done in April of
2012 when he was in custody. And at that
time they did say he didn’t qualify. But
in the notes, and … according to [mother] it was basically because he
wasn’t able to be present. So they
couldn’t really make a decision on if he should continue or not.
“THE COURT: Okay.
We can do an IEP[] in Juvenile Hall.
“THE PROBATION OFFICER: Yes. I
don’t know why. I contacted the teacher
down there, and they told me he was not in Special Ed.â€
c. Juvenile court’s ruling
Following
closing argument, the juvenile court denied I.F.’s motion under Penal Code
section 17, subdivision (b), to treat the assault as a misdemeanor
and ordered I.F. committed to the DJJ.
In support of its order, the court made a number of comments, including
these:
“Let me start with [defense
counsel’s] description of the [DJJ].
“No. 1, the [DJJ] is not,
so to speak, on trial here. It is not a
perfect system. I agree with you. I wish they could do more for kids than they
do. But as a practical matter, they
provide a lot more services at DJJ than we can right now in Juvenile Hall.
“We have two mental health
counselors. As of today, I think there
were 133 kids in the Hall. 133 kids,
almost all of whom have some form of mental health needs or another. We simply can’t provide much in the way of
services. [¶] … [¶]
“Let me just cut to the
chase. I am going to order a commitment
to the [DJJ].
“Looking at your history, it’s
really pretty appalling. The best thing
you had in your favor was that you didn’t get in trouble until right before
your 17th birthday, and then you just spiraled out of control.
“Your first petition was
March 18th of last year. A month and
a half before your 18th birthday. I know
[the prosecutor] went over this. You
were released from custody on April 27th; you got arrested again,
May 26th; got out of custody, June 2nd; went back into custody,
June 30th, on a probation violation; you were there till July 11th;
three weeks later you are back again with another probation violation. You did another couple of weeks. You got out on the 21st. Back into custody eight days later. And on and on it continues. You have never been out, I don’t think even a
month in a year—in over a year. And that
is terribly concerning. [¶] … [¶]
“One of the things that is I
remember that struck me the most, and I commented on this at your
jurisdictional hearing.… The comment I
made was the testimony. You testified,
and one of the questions was: How long
did you plan on hitting the victim? And
because you kept on hitting the victim even after you had been pepper sprayed
by Juvenile Hall staff. And your
response was, you were going to hit him until he had enough.
“This was not an ADD incident
or anxiety incident. This was an act of
gang retaliation pure and simple. You
made derogatory gang remarks during the assault. Your history has been consistent with that.…
“And when I see someone who is
so severely gang entrenched and so violent—this was a totally unprovoked
attack. And even though Juvenile Hall
staff tried to get you under control, nothing worked, and you just kept on
punching. There is no excuse for that
kind of behavior.
“Why you didn’t get your medication
in Juvenile Hall, I don’t know. If there
was prescribed medication, it was prescribed on the outside of the bottles for
the family to bring it in on the bottles.
That didn’t happen. I don’t know
why. I don’t know why you didn’t get
your medicine, why there wasn’t a request for a psychiatric exam. According to your mother’s testimony, she
requested it. But be that as it may, it
does not excuse what you did.
“Probably the majority of the
kids in Juvenile Hall have ADD or some other type of mental health issue, I
have no doubt, and I know the studies show that the vast majority of kids that
go through the juvenile system have health disorders of one sort or another.
“I can’t excuse violent
behavior on mental health issues. Nobody
told you—no mental disorder gives you the right to beat somebody bloody like
you did as shown in those pictures. It’s
just inexcusable.â€
DISCUSSION
I. Equal protection
I.F. first contends his right to
equal protection was violated because he was treated differently than special
education students in other settings when juvenile hall staff intentionally
“withheld†medication prescribed for the treatment of his ADHD. We reject I.F.’s contention because he has
failed to demonstrate an equal protection violation under any of the
authorities he cites.
Both the
federal equal protection clause (U.S. Const., 14th Amend.) and its California
counterpart (Cal. Const., art. I, § 7, subd. (a)) require that
persons similarly situated with respect to the legitimate purpose of a law must
be treated alike under the law. (
(1985) 473 U.S. 432, 439; Las Lomas Land
Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 857.) The constitutional right to equal protection
applies not only to groups, but to individuals who constitute a “‘class of
one’†(Village of Willowbrook v. Olech
(2000) 528 U.S. 562, 564) if the individual “has been intentionally treated
differently from others similarly situated and … there is no rational
basis for the difference in treatment.â€
(Ibid.)
To prove a
class-of-one claim under the federal or state Constitution, it must be
established that the treatment complained of was different from the treatment
of others similarly situated, that the unequal treatment was intentional, and
that the unequal treatment was not rationally related to a legitimate
governmental purpose. (
(2006) 138 Cal.App.4th 1135, 1174.)
I.F.’s
equal protection claim fails because there is no evidence the failure to
provide him with his ADHD medication was intentional or purposeful. I.F.’s assertions in this regard are
speculative and unsupported by the record.
For example, he asserts it is “most reasonable to infer from staff’s
inattention that each of those staff persons responsible for providing [I.F.’s]
medications had choices or priorities to choose and on each occasion …
providing [I.F.’s] medications took a second seat to another task†and “[i]t is
also likely that there was a domino effect where one person’s decision
subsequently affected the judgment of a colleague who went along with the first
officer’s decision to withhold medication.â€
Not only is
there no evidence that any juvenile hall staff member made a deliberate
decision to withhold I.F.’s ADHD medication, his argument assumes, without any
factual support, that multiple staff members had the ability or authority to
provide him his medication and each made a conscious choice to withhold his
medicine thereby influencing one another. However, the record indicates that the number
of personnel who were authorized to approve mother’s request for medication was
very limited. According to mother’s account,
when she complained about I.F. not receiving his medication after the subject
assault, the nurse apologized and essentially informed mother that only the
staff psychiatrist could approve her request for medication.
called her shortly after she spoke with the nurse and that I.F. started
receiving his ADHD medication around mid-March 2012.
There is no
basis in the record to conclude that I.F.’s failure to receive ADHD medication
at the time his mother requested was the result of, in I.F.’s words, a “purposeful
denial of medical treatment .…†We
can just as easily postulate that the failure was due to an inadvertent delay
in the handling of her request, a theory which finds support in the court’s
comments at the dispositional hearing acknowledging the limited resources
available in juvenile hall for meeting the mental health needs of its
residents.
which held that “deliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain,’ [citation], proscribed
by the Eighth Amendment†(id. at
p. 104), provides no legal support for I.F.’s equal protection claim under
the Fourteenth Amendment. It is also
factually inapposite. For reasons just
discussed, there is no evidence supporting I.F.’s assertions that juvenile hall
staff either intentionally withheld his ADHD medication or acted with
deliberate indifference to his medical needs.
(See Estelle v. Gamble,
indifference not shown by mere negligence or inadvertence];
836-840 [“deliberate indifference†standard includes subjective element that
defendant knows of and disregards excessive risk to inmate health or
safety].)
II. Ineffective assistance
of counsel
Next, I.F. contends
he received ineffective assistance of counsel when his defense counsel failed
to investigate or present any evidence regarding I.F.’s ADHD and the
withholding of medication in his defense at the jurisdictional hearing. We disagree.
The
defendant has the burden of proving ineffective assistance of trial
counsel. To prevail on a claim of
ineffective assistance of trial counsel, the defendant must establish not only
deficient performance, which is performance below an objective standard of
reasonableness, but also prejudice. A
court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance. Tactical errors are generally not deemed
reversible. Counsel’s decisionmaking is
evaluated in the context of the available facts. To the extent the record fails to disclose
why counsel acted or failed to act in the manner challenged, appellate courts
will affirm the judgment unless counsel was asked for an explanation and failed
to provide one, or unless there simply could be no satisfactory
explanation. Prejudice must be
affirmatively proved. The record must
affirmatively demonstrate a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. (People
v. Maury (2003) 30 Cal.4th 342, 389.)
Attorneys are not expected to engage in tactics or to file motions which
are futile. (Id. at p. 390; also see People
v. Mendoza (2000) 24 Cal.4th 130, 166.)
Regarding
defense counsel’s performance, I.F. complains there is “no evidence that shows
counsel even considered, let alone made any effort, to show that [I.F.’s] assaultive
conduct may well have been a manifestation of a symptom of ADHD.†However, there is no evidence defense counsel
did not consider the role I.F.’s untreated
ADHD might have played in the assault.
counsel was well aware of I.F.’s ADHD, contradicting I.F.’s assertions that
defense counsel likely failed to educate himself about his diagnosis.
For example,
at a dispositional hearing in April 2011 regarding I.F.’s previously sustained
petition for first degree burglary, defense counsel argued that I.F.’s unmedicated
ADHD likely contributed to his participation in a recent incident of violence
in juvenile hall, which was a factor the juvenile court was considering in
determining whether or not to grant I.F. deferred entry of judgment (DEJ). Defense counsel specifically argued that I.F.’s
conduct during the incident reflected “almost classic ADHD behavior patterns.†The prosecutor, who was the same prosecutor in
the instant case, opposed defense counsel’s request for DEJ, strongly objecting
to his reliance on I.F.’s ADHD as a mitigating factor. Among other things, the prosecutor stated he
found it “disturbing†when “people use the condition of ADHD as a crutch and
excuse their poor behavior on the condition or lack of medicine.†While granting I.F. DEJ and placing him on
house arrest, the juvenile court judge, who was also the same judge in the
instant case, expressed agreement with the prosecutor, explaining:
“I do have to agree with [the
prosecutor], and I have said that precise thing that he has said, perhaps not
with as much passion as he said it this morning, but I have said the exact same
thing that mental health issues, whether they are ADHD or bipolar disorder or
anxiety disorder or any other form of mental health issue, does not excuse poor
behavior. It does not.
“I understand that—I’m well
aware that ADHD can make you more impulsive, but that’s something you need to
learn to live with. I am very concerned
because it was a gang-related disturbance.
And we had—that particular day, it appears that it was a general
free-for-all in Juvenile Hall, and that’s not a good thing. The entire unit was affected. And a lot of reshuffling kids from one unit
to another had to occur, and it was not a good thing.â€
Given that
defense counsel was facing the same judge and prosecutor in the instant case,
and his awareness of their potential reaction, defense counsel could have made
a reasonable tactical decision not to present evidence of I.F.’s ADHD in his
defense at the jurisdictional hearing and to pursue a self-defense theory
instead. On the record before us, we
cannot agree with I.F.’s assertion that the only reasonable explanation for
counsel’s failure to present evidence of his ADHD diagnosis was that “counsel
was unaware of the IDEA [Individuals with Disabilities Education Act], California’s
corresponding laws, and of the significance of medication for an ADHD patient.†The record simply does not support I.F.’s assertions
regarding defense counsel’s alleged lack of knowledge concerning his ADHD
diagnosis.
I.F. has
also failed to show he was prejudiced by his counsel’s allegedly deficient
performance. I.F. argues that, had
defense counsel “explored and educated himself on his client’s diagnosis, or
had the defense brought an expert witness in as part of the defense, an
argument could have been mounted to show that [I.F.’s ] behavior was consistent
with commonly known classic symptoms of ADHD.â€
According to I.F., “[i]t is impossible to say that a different
conclusion by the juvenile court may not have resulted since [I.F.’s] intent to
cause great bodily harm was not necessarily present because of his
uncontrollable impulsivity associated with denial of his medication.â€
In our
view, it is unlikely the juvenile court would have found I.F. lacked the
requisite intent for the assault charge if defense counsel had presented
evidence that I.F.’s behavior during the February 5, 2012, incident was
consistent with the symptoms of ADHD. As
the juvenile court stressed at both the jurisdictional and dispositional
hearings, I.F.’s testimony that he intended to hit the victim until he knew the
victim had “had enough†was powerful evidence his application of force on the
victim was intentional and willful and not the result of an uncontrollable
impulse. The court also stressed that I.F.’s
derogatory gang remark showed the attack was gang-related. And the court specifically remarked that “[t]his
was not an ADD incident or anxiety incident.
This was an act of gang retaliation pure and simple.†In light of the court’s comments and strong
evidence of I.F.’s intent, it is not reasonably probable the result of the
proceedings would have been different had defense counsel presented evidence of
I.F.’s ADHD in his defense at the jurisdictional hearing.
III. Rule 5.651
I.F. further contends
the juvenile court abused its discretion by failing to comply with rule 5.651
by not completing a Judicial Council Forms, form JV-535. We disagree and conclude the court made
proper findings regarding I.F.’s educational needs.
“A juvenile
court’s commitment order may be reversed on appeal only upon a showing the court
abused its discretion. [Citation.] ‘“We must indulge all reasonable inferences to
support the decision of the juvenile court .…â€â€™â€ (In re
Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.)
“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.) .…†(In re
Angela M. (2003) 111 Cal.App.4th 1392, 1397, fn. omitted (
subd. (a).)
The
juvenile court must address and determine a child’s general and special
education needs, identify a plan to meet those needs, and set forth findings on
a Judicial Council Form, form JV-535. (Rule 5.651(b)(2); see
juvenile court to consider a minor’s educational needs. That decision found the juvenile court there
abused its discretion in committing the minor to the California Youth Authority
(now the DJJ) without mentioning the issue of educational needs, as the court
was “clearly on notice that [the minor] may have special educational needs.†(Angela
M., supra, 111 Cal.App.4th at
pp. 1398-1399.)
The instant
case is not Angela M. Here, the juvenile court was clearly aware of
its duty to consider, and did consider, I.F.’s educational needs. The court specifically found that I.F. was an
individual with special education needs and ordered the probation department to
provide his IEP and documentation that he was a special education student to
the appropriate authorities. In the
event I.F. did not have a current IEP, the juvenile court ordered the probation
department and/or the education staff at juvenile hall to evaluate I.F. for any
disabilities, stressing the importance of obtaining an evaluation of I.F.’s “emotional
disabilities.â€
We conclude
the juvenile court adequately considered I.F.’s educational needs in committing
him to DJJ, and the court’s failure to formalize its educational findings in
form JV-535 is harmless on this record.
IV. Cumulative error
In conclusion,
I.F. contends the cumulative impact of all the alleged errors deprived him of
his right to due process and a fair trial.
Because we have rejected I.F.’s individual claims of error, his claim of
cumulative error also fails.
The juvenile court’s adjudication and orders are
affirmed.
_____________________
Oakley, J.
WE CONCUR:
_____________________
Gomes, Acting P.J.
_____________________
Poochigian, J.
name="_ftn1" title=""> This information is consistent with
information the juvenile court provided at earlier proceedings. Thus, at a dispositional hearing on a
different matter in May 2011, when mother raised similar concerns about I.F.
not receiving his ADHD medication, the court informed mother that she either
had to provide a current, written prescription for the medication, or I.F.
would have to undergo an evaluation by psychiatric staff in juvenile hall
before he could begin receiving ADHD medication. Because mother was apparently unable to
provide a current prescription, defense counsel requested, and the court
ordered, an evaluation of I.F. by psychiatric staff to determine his need for
medication.
name="_ftn2" title=""> [†]I.F. suggests that defense counsel’s failure
to consider the role I.F.’s ADHD might have played in the subject incident is
demonstrated by comments counsel made at the beginning of the jurisdictional hearing. According to I.F., “counsel made a point of
disclosing he had not reviewed [I.F.’s] ‘medical records’ that he expected
would be offered by the prosecution because, he said, he had just finished
another trial.†A careful review of
defense counsel’s comments reveals he was referring not to I.F.’s medical records, but to the victim’s medical records. Therefore,
defense counsel’s comments do not indicate any lack of knowledge or
consideration of I.F.’s ADHD diagnosis.
