In re S.S.

Filed 5/15/08 In re S.S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Douglas N. Gericke, Judge. Affirmed.

Sachi Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado, Supervising Deputy Attorney General, and James H. Flaherty III, Deputy Attorney General, for Plaintiff and Respondent.

In September 2006, Minor, while already on probation for felony drug possession, admitted possession of a concealable firearm in violation of Penal Code section 12101, subdivision (a)(1); in return for this admission, the remaining allegation of the petition was dismissed. Following a contested dispositional hearing, Minor was declared a ward of the court and committed to the Division of Juvenile Facilities, Division of Juvenile Justice (DJJ). On appeal, Minor contends (1) the DJJ commitment must be vacated as it is not authorized by Welfare and Institutions Code sections 731 and 733^[1]; (2) the juvenile court abused its discretion in committing him to DJJ without considering less restrictive alternatives and probable benefits; and (3) remand is necessary to permit the juvenile court to make proper findings regarding his educational needs. We reject these contentions and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

Minor has a lengthy criminal history. In September 2003, he was arrested for second degree robbery (Pen. Code, 211). He was formally declared a ward of the court in January 2004 and was placed on formal probation after he admitted to committing grand theft (Pen. Code, 487, subd. (c)). He successfully completed probation and was discharged and dismissed on January 6, 2005.

In March 2005, he was charged with three counts of burglary, two counts of aggravated assault, and one count of second degree robbery. In May 2005, after he admitted to committing one count of burglary and one count of second degree robbery, he was placed on Success probation. He was again discharged and dismissed following successful completion of probation on May 12, 2006.

Only about a month later, on June 16, 2006, Minor was charged with possession of a controlled substance, to wit, cocaine (Health & Saf. Code, 11350, subd. (a)). He admitted the allegation and was again placed on Success probation.

Approximately two months later, while still on probation, police responded to a call that Minor was chasing two juveniles with a gun. Upon arrival, officers spotted Minor; Minor fled, ignoring the officers commands to stop. As Minor jumped a fence, a loaded revolver fell from his waistband. After discharging his service weapon, the officer apprehended and arrested Minor.

Minor was subsequently charged with possession of a firearm by a probationer (Pen. Code, 12021, subd. (d)(1)) and possession of a concealable firearm by a minor (Pen. Code, 12101, subd. (a)(1)). On November 2, 2006, Minor admitted the possession of a firearm by a minor, and the other charge was dismissed.

The probation officer reported that Minor was in the 11th grade at San Gorgonio High School but was not attending. It was also reported that Minor had been diagnosed with emotional problems at a young age and that he had previously taken medication for attention deficit disorder. It was further noted that Minor had been involved in numerous altercations at school, that he had more than 60 expulsions/suspensions from school, and that he had a significant school disciplinary record. Minor admitted to using marijuana since the age of 15 and associating with the Squad up gang. Minors mother reported that Minor had been out of school for the past eight months because he was waiting for his Individualized Education Program (IEP)^[2]; he had been removed from his high school due to an October 2005 shooting incident in which Minor was shot in the leg allegedly by rival gang members, and he had not been allowed to return until the IEP was completed. Minors mother also noted that she received SSI (Supplemental Security Income) benefits for Minors emotional disturbance and learning disabilities, but she failed to administer Minors medication.

The probation officer opined that Minor was eerily unfazed by the current incident, even though he was almost killed and even though his father, at age 17 (the same age as Minor at the time of the subject incident), was killed while running from police officers. The officer making contact with Minor was in constant fear for his own life. The probation officer also explained that Minors behavior was that of a toughened criminal and his crimes are only escalating in severity and sophistication. Based on Minors conduct, his failure to learn from his grants of probation, his lack of remorse, his lack of empathy, and his age, the probation officer opined that placement was unsuitable to meet Minors needs and that Minor required a secure, confined, setting with strict supervision. The probation officer believed that DJJ was the only viable option to deal with Minors level of maturity, sophistication, and criminality.

On February 11, 2007, Minor underwent a psychological evaluation. The evaluator opined that Minor manipulated his test results in an attempt to make himself look incompetent in order to avoid DJJ. The evaluator believed Minor was functioning in the borderline range of intelligence and that he was malingering in a desperate attempt to avoid going to DJJ; he recommended another evaluation of Minor.

On March 7, 2007, following presentation of evidence, Minor was committed to DJJ. The court found that Minor had tried other possible placements and had failed; that Minor had exhausted local programs; and that it was necessary Minor be committed to DJJ, since it appeared he required a close setting with substantial counseling toward modification of his behavior. The court further noted that it was fully satisfied that the mental and physical condition and qualifications of Minor were such as to render it probable that Minor would be benefitted by the reformatory educational discipline and other treatment provided by DJJ. The court further found that Minor was an individual with exceptional educational needs pursuant to section 1742.

II

DISCUSSION

A. Whether the DJJ Commitment is Authorized

Minor contends the DJJ commitment must be recalled because it is not authorized by the amendments to sections 731 and 733. The People respond that Minors issue is not yet ripe for consideration by this court and, in the alternative, that the amendments to sections 731 and 733 have no retroactive application to Minors case. We find that the new provisions were not meant to be retroactive.

Section 731.1 provides, in pertinent part, Notwithstanding any other law, the court committing a ward to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, upon the recommendation of the chief probation officer of the county, may recall that commitment in the case of any ward whose commitment offense was not an offense listed in subdivision (b) of Section 707, unless the offense was a sex offense set forth in [Penal Code section 290, subdivision (d)(3)], and who remains confined in an institution operated by the division on or after September 1, 2007.

Section 733 provides, in relevant part, A ward of the juvenile court who meets any condition described below shall not be committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities: [] . . . [] (c) The ward has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707, unless the offense was a sex offense set forth in [Penal Code section 290, subdivision (d)(3)]. This subdivision shall be effective on and after September 1, 2007.

Minor notes that under revised section 733, subdivision (c), on or after September 1, 2007, a ward under section 602 no longer may be committed to DJJ if his most recent offense is not described in section 707, subdivision (b). He argues that even though the juvenile court committed him to DJJ under section 602 before the effective date of section 733, the section should apply to him retroactively because [a]t common law, a statute mitigating punishment applied to acts committed before its effective date as long as no final judgment had been rendered.

Recently, In re Brandon G. (2008) 160 Cal.App.4th 1076 and In re Carl N. (2008) 160 Cal.App.4th 423 determined that the newly amended versions of sections 731 and 733 do not apply retroactively. We adopt the reasoning of these two cases and reject Minors contention.

Brandon G. explains: Neither the language of sections 733 and 731.1 nor the rules of statutory interpretation support this contention. The Legislature may make a law retroactive in its effect, but only when the intention to do so clearly appears. [Citations.] It is an established canon of interpretation that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent. [Citations.] [Citation.] Section 733, subdivision (c), shows no retroactive intent on its face; it states, This subdivision shall be effective on and after September 1, 2007. [] Indeed, contrary to [the minors] contention, section 731.1 supports the view that the Legislature did not intend that sections 733 and 731.1 be applied retroactively. The court committing a ward to [DJJ], upon the recommendation of the chief probation officer of the county, may recall that commitment in the case of any ward . . . who remains confined in an institution operated by [DJJ] on or after September 1, 2007. (Italics added.) The insertion of the term may shows that recall is at the courts discretion, not mandatory. Moreover, the courts discretion only is triggered by a recommendation for recall from the chief probation officer of the county. [The minor] offers no evidence of any such recommendation in his case. Without this recommendation, he cannot have his commitment recalled pursuant to section 731.1. (In re Brandon G., supra, 160 Cal.App.4th at p. 1081.)

B. Whether the Court Abused Its Discretion in Committing Minor to the DJJ

Minor also claims that the juvenile court abused its discretion in committing him to DJJ without considering the probable benefits of DJJ and placement at a local regional facility, such as Regional Youth Educational Facility (RYEF). We disagree.

We review a commitment decision only for abuse of discretion, and indulge all reasonable inferences to support the decision of the juvenile court. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) Section 734 mandates that [n]o ward of the juvenile court shall be committed to the [DJJ] unless the judge of the court is fully satisfied 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 the [DJJ]. A reviewing court will not conclude the juvenile court has abused its discretion in committing a minor to DJJ if the record demonstrates probable benefit to the minor from commitment to the [DJJ] and that less restrictive alternatives would be ineffective or inappropriate. [Citation.] [Citation.] (In Pedro M. (2000) 81 Cal.App.4th 550, 555-556; see also In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)

Under section 202, juvenile proceedings are primarily rehabilitative (id., subd. (b)), and punishment in the form of retribution is disallowed (id., subd. (e)). (In re Eddie M. (2003) 31 Cal.4th 480, 507.) But, [w]ithin these bounds, the court has broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public. ([ 202,] subd. (e).) (Ibid.) In 1984, the Legislature amended the statement of purposes found in section 202 . . . . It now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public. [Citation.] The significance of this change in emphasis is that when we assess the record in light of the purposes of the Juvenile Court Law [citation], we evaluate the exercise of discretion with punishment and public safety and protection in mind. Such was not the case before 1984. (In re Lorenza M. (1989) 212 Cal.App.3d 49, 57-58, fn. omitted.)

The juvenile court has a wide range of options available for placing its wards, including unsupervised probation, return to the home under the supervision of a probation officer, a community care facility ( 727, subd. (a)), a juvenile home, ranch, camp, or forestry camp or the county juvenile hall ( 730, subd. (a)), or the Division of Juvenile Facilities ( 731, subd. (a)(4)). In determining disposition, the juvenile 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 minors previous delinquent history. ( 725.5.)

After a review of the entire record, we conclude there is substantial evidence here to support the commitment to DJJ. Minor, who is 18 years old and who has been a ward of the court since he was 14, is in serious need of educational services. Minor is also in dire need of substance abuse counseling, as the record indicates he consistently used marijuana since he was 15. In addition, based on his past and present offenses; lack of remorse; and defiant behavior at juvenile hall, school, and in the community, Minor is in need of anger management counseling, victim awareness counseling, and gang awareness counseling. Minor lacked remorse for his victims, presented himself as manipulative and a hardened, sophisticated criminal and is a danger to the community. Furthermore, Minor is in need of counseling as evidenced by his emotional issues. The probation officer testified at the contested dispositional hearing that a DJJ commitment would allow Minor to receive anger management counseling as well as earn a high school diploma. The record sufficiently supports the courts determination that Minor would benefit by the reformatory educational discipline or other treatment provided by DJJ.

Minor urges that the juvenile court abused its discretion in committing him to DJJ without considering the benefits of RYEF. However, as explained below, based on Minors history, local placement was inappropriate.

Substantial evidence supports the courts finding that a less restrictive alternative would be ineffective and inappropriate. Minor has a history of serious criminal offenses, even after being provided with three prior grants of probation. In fact, even though Minors psychologist at the time of the dispositional hearing recommended that Minor be sent to RYEF, the psychologist made that determination based on the premise that RYEF was a locked facility where Minor would not be free to leave. The doctor repeatedly opined that Minor presented a danger to the community and showed very little empathy for people. In addition to the psychologists testimony, the court heard evidence that RYEF could not assure that Minor would not be released into the community. A probation officer noted that even though RYEF is a locked down facility, after just six weeks, residents would become eligible for home and night passes. Furthermore, the probation officer was unaware of a situation where a Minor had been placed at RYEF with an agreement that a Minor could not earn leave passes.

In an effort to rehabilitate Minor, the court has given Minor an opportunity to mend his delinquent behavior on formal probation, Success probation, and house arrest. The court clearly considered the alternatives and the evidence presented at the contested dispositional hearing. However, based on all the factors set forth in detail, ante, the court found the only option was to send Minor to DJJ. Indeed, the record indicates that it is necessary to commit Minor to DJJ because he is in need of a closed setting with substantial counseling toward modification of Minors delinquent behavior.^[3] Further, we find less restrictive alternatives would be inappropriate because they have been incapable of confining Minor so that he may receive the treatment he needs. Accordingly, we also find that being committed to DJJ will likely benefit Minor because while he is confined he will be able to receive the treatment he requires.

The statutory scheme guiding the juvenile court in its treatment of juvenile offenders contemplates a progressively restrictive and punitive series of disposition orders in cases such as that now before us namely, home placement under supervision, foster home placement, placement in a local treatment facility and, as a last resort, Youth Authority placement. (In re Aline D. (1975) 14 Cal.3d 557, 564; see also In re Bryan (1976) 16 Cal.3d 782, 788.) Nonetheless, while DJJ is considered a final treatment resource (In re Michael R. (1977) 73 Cal.App.3d 327, 337), there is no absolute rule that a [DJJ] commitment should never be ordered unless less restrictive placements have been attempted. (In re Ricky H. (1981) 30 Cal.3d 176, 183.) Instead, the record need only show, as it does here, probable benefit to the minor from commitment to DJJ and that less restrictive alternatives were considered and rejected. (In re George M. (1993) 14 Cal.App.4th 376, 379; In re Teofilio A. (1989) 210 Cal.App.3d 471, 576.)

The court articulated reasonable concerns for the community and Minors rehabilitation, concerns that can only be addressed by DJJ given Minors history and current offense. Minors arguments to the contrary are to no avail. We thus conclude the juvenile court did not abuse its discretion by committing Minor to DJJ.

C. Whether the Court Considered Minors Educational Needs

Minor argues that the court failed to take into consideration his special educational needs before committing him to DJJ. The record belies this contention. The juvenile court here did find that Minor was an individual with exceptional needs . . . . The court also noted that though there was no current IEP on file, it was satisfied with the status of the IEP.

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 include 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 [citation], 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. [Citation.] A child qualifies as an individual with exceptional needs if the IEP team determines the degree of the pupils impairment . . . requires special education in one or more of the program options authorized by Section 56361 of the Education Code. [Citation.] (In re Angela M., supra,111 Cal.App.4th at pp. 1397-1398, fns. omitted.)

Minors reliance on Angela M. is misplaced. In that case, a psychologist testified that the minor must undergo an IEP [ ] assessment. (In re Angela M., supra, 111 Cal.App.4th at p. 1395.) Nothing to the contrary was presented to the trial court, which ignored the recommendation. The appellate court remanded the matter to the trial court for an IEP evaluation. It concluded that prior to committing Angela to the CYA, the juvenile court had a duty to consider or determine whether Angela had special educational needs. (Id. at p. 1398, fn. omitted.)

We find Angela M. distinguishable. In that case, while the record before the juvenile court suggested that the minor had an educational problem requiring evaluation, no IEP report was prepared to determine if she had special needs. The appellate court remanded the matter to the juvenile court to have that report prepared. Without that evaluation, the juvenile court could not consider the minors educational needs in reaching its disposition. Here, on the other hand, the juvenile court found Minor was an individual with exceptional education needs and that he did have an IEP in February 2005, but that he had no current one due to the fact that he had not been in school since January 2006. Hence, the juvenile court was aware that an IEP had been conducted, indicating that Minor had special educational needs in hand before rendering its disposition. It is presumed that it considered all relevant criteria unless the record affirmatively demonstrates otherwise (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). Minor points to nothing in the record suggesting that the trial court did not consider the IEP in its disposition or that Minors special needs were not met by that disposition.^[4]

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

GAUT

J.

MILLER

J.

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^[1] All future statutory references are to the Welfare and Institutions Code unless otherwise stated.

^[2] An IEP is a written statement for children with a disability that includes, among other information, (i) a statement of the childs present level of educational performance, including how the childs disability affects the childs participation and progress in the curriculum; (ii) a statement of measurable annual goals, including benchmarks, or short-term objectives for meeting the childs educational needs, (iii) a statement of the special educational and related services the child will receive, and (iv) an explanation of the extent to which the child will not participate in regular education programs. (20 U.S.C. 1414(d)(1)(A).)

^[3] Because substantial evidence supports the DJJ commitment, we reject the claim that the probation officers recommendation was based on an error of fact that Minor had a history of using guns.

^[4] In addition, we note that DJJ is required to conduct its own assessment of Minors educational needs upon commitment and at least annually thereafter. (Welf. & Inst. Code, 1120, subd. (b).) Lacking any suggestion to the contrary, we must presume Minor will receive appropriate special assessment and education at DJJ. (Evid. Code,  664.)