Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 184403-04
Ruvolo, P. J.
I.
Introduction
Appellant T. H. appeals from a dispositional order committing him to the California Department of the Youth Authority (CYA). Appellant contends that the juvenile court abused its discretion because there was insufficient evidence to show he would benefit from this commitment. Appellant further contends that the juvenile court failed to determine or consider his special educational needs before committing him to CYA. Finally, appellant requests that we order the juvenile court to correct its August 24, 2006 minute order requiring appellant’s parent or guardian to reimburse the county for his care and support because the juvenile court’s oral pronouncement at the disposition hearing did not include such an order.
We note that effective July 1, 2005, the CYA was redesignated the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (Welf. & Inst. Code, § 1710, subd. (a); 1703, subd. (c).) For convenience we will continue to refer to the Division of Juvenile Facilities as the CYA.
As to the placement choice, we affirm the juvenile court’s order and find that the juvenile court did not abuse its discretion. As to the second contention, the record contains substantial evidence indicating that appellant may have special educational needs requiring an Individual Education Program (IEP) assessment. Accordingly, we remand the matter to the juvenile court for the limited purpose of determining whether an evaluation of appellant’s special educational needs should be conducted, and if so, to order an IEP. The juvenile court thereafter is to reconsider whether appellant has special educational needs, and if so, to forward its finding to the CYA in an amended commitment order together with the IEP, if such is prepared. We also strike the reference to the reimbursement order contained in the August 24, 2006 abstract of judgment and remand to allow the juvenile court to consider the issue of reimbursement for appellant’s cost of care.
II.
PROCEDURAL AND FACTUAL BACKGROUNDS
A. Prior Proceedings
Appellant was first introduced to the juvenile justice system at the age of 13 when he participated in setting a stray puppy on fire. Approximately five months prior to this incident, appellant underwent expulsion hearings at a middle school where he was repeating sixth grade. The school related appellant’s behavioral problems to his extremely low academic abilities, stating that “whether or not [appellant] has a disability, he can scarcely write a legible sentence or complete a very basic math problem.”
On January 14, 2002, the Alameda County District Attorney filed a two-count juvenile delinquency petition alleging that then 13-year-old appellant committed felony cruelty to animals (Pen. Code, § 597, subd. (a) (count one)), and misdemeanor petty theft (Pen. Code, § 484, subd. (a) (count two).) Appellant admitted the charge of felony cruelty to animals. Count two was dismissed.
On February 5, 2002, the Alameda County Juvenile Court declared appellant a ward of the court, ordered him removed from his home, and placed in a group home for a maximum period of three years. Additionally, the court found that appellant required an IEP assessment. Prior to the February 5th dispositional hearing, the court referred appellant to a clinical psychologist to undergo a mental health evaluation.
Appellant underwent a psychological evaluation prior to his outplacement, which indicated that he suffered from a learning disability that impacted his academic performance and self image. The clinical psychologist concluded in his January 31, 2002 report that appellant “clearly needs to have an IEP.” A case plan prepared by the probation department in July 2002 declared that a primary case objective for appellant was to “[r]aise [his] academic functioning to an age appropriate grade level through an IEP assessment and implementation of special education services.” Probation reports prepared in December 2002 and June 2003 reiterate the need for appellant to undergo an IEP assessment.
Appellant successfully completed his 15-month outplacement at the Trinity Sacramento-Fair Oaks House (Trinity) in June 2003. While there, his grades had improved to A and B averages. Consequently, the probation reports prepared in December 2002 and June 2003 reveal that the need for appellant to undergo an IEP evaluation was excused due to improvement in his grades. However, these reports continued to list an IEP evaluation as one of the cas objectives for appellant. In August 2003, appellant was living with his grandmother and scheduled to attend Fremont High School. Appellant went back to live with his mother in February 2004. Probation reports prepared in February and April 2004 indicate that appellant was failing his classes and later was expelled from Fremont for absenteeism.
Despite appellant’s academic problems, he remained in compliance with the terms of his probation until September 16, 2004, when his probation officer filed a probation violation alleging that appellant had missed several appointments and could not be located. The court issued a bench warrant and appellant appeared in court at a detention hearing on May 6, 2005. The resulting dispositional study indicates that appellant was enrolled at Fremont Media Academy on October 11, 2004, and dropped on November 8, 2004. Appellant was released from juvenile hall on June 3, 2005, with instructions to complete eight weekends at the Weekend Training Academy (WTA), a program of citizenship training and work.
A subsequent probation violation petition was filed on October 14, 2005, due to appellant’s failure to appear at a court hearing and for scheduled appointments with his probation officer, to pay restitution fines on schedule, and to complete the WTA program. Appellant appeared before the court on October 14, 2005, and was released on electronic monitoring. He absconded from the program shortly thereafter. On November 8, 2005, appellant failed to appear for a scheduled court hearing, and the juvenile court issued another warrant for his arrest.
A. Current Proceedings
Appellant was taken into custody on January 26, 2006. The events leading up to his arrest are as follows.
On January 20, 2006, at approximately 5:45 p.m., appellant and another young man entered Wireless Land, a cellular store located at 2700 Fruitvale Avenue in Oakland. They looked around and left. Appellant reentered the store at approximately 6:10 p.m. with another young man while the store’s owner, Ricky Daniels, was assisting a customer. The second young man walked directly to Daniels’s counter, pointed a revolver at him, ordered him to get down, and demanded to know where the money was kept. Daniels indicated that the money was located in a desk drawer. Appellant took $2,144 from the drawer. At appellant’s instruction, his armed accomplice took Daniels’s wallet and diamond wedding band.
During the robbery, the other youth, who had entered the store with appellant to look around earlier, had reentered the store with a fourth youth. These two young men acted as look-outs during the robbery. All four young men were wearing black. The young men fled on foot and then stole a car which was parked in the 3100 block of East 27th Street.
In a photographic line-up conducted on April 4, 2006, Daniels identified appellant as a participant in the robbery. Police arrested appellant a week later on April 12. He initially denied involvement in the robbery.
Appellant was arrested for an unrelated offense approximately three months prior to the time at which his involvement in the robbery became known. On January 26, 2006, police entered an apartment located at 625 Berry Avenue in Hayward to execute an arrest warrant for Chevele Richardson. Upon arrival, police officers observed appellant running through the apartment towards the backdoor. The police confiscated 10.5 grams of cocaine, which was separately packaged for distribution, and a handgun from the apartment.
On January 27, 2006, the Alameda County District Attorney filed a three-count subsequent delinquency petition under Welfare and Institutions Code section 602 alleging that 17-year-old appellant possessed cocaine for sale (Health & Saf. Code, § 11351 (count one)), possessed cocaine while armed with a firearm (Health & Saf. Code, § 11370.1 (count two)), and possessed a firearm (Pen. Code, § 12101, subd. (a)(1) (count three).) Appellant was released on electronic monitoring on February 21, 2006. He subsequently failed to appear for a jurisdictional hearing on March 13, 2006.
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
On April 13, 2006, the district attorney amended the section 602 delinquency petition to allege that appellant had committed robbery while armed with a firearm (Pen. Code, §§ 211, 12022, subd. (a)(1) (count four).) The district attorney also moved for a determination of appellant’s fitness for juvenile court treatment.
At the section 602 hearing held on August 10, 2006, appellant admitted the truth of the robbery allegation pursuant to a plea agreement with the district attorney. The district attorney withdrew the fitness motion and indicated that he would seek CYA commitment. All other charges, including the firearm enhancement component to count four, were dismissed.
Appellant, then age 18 years and one month, appeared for his dispositional hearing on August 24, 2006. Due to appellant’s age and the results of his behavioral study, appellant requested to be tried as an adult. While appellant failed all five statutory criteria for juvenile court treatment, the court denied this request, stating that appellant “needs to be on parole, and the only way we can do that is through the Department of Juvenile Justice [CYA].” The court furthermore found that appellant would benefit from reformatory educational discipline, anger management, and other treatment provided at CYA.
In committing appellant to CYA, the court relied on a dispositional report prepared by the probation department that recommended CYA placement. The report indicates that appellant was ineligible for group-home placement due to his age and ineligible for Camp Sweeney due to the use of a gun in the commission of the robbery. The report also cites the sophistication of appellant’s recent offense and his long-standing, rapidly deteriorating relationship with the juvenile justice system as justifications for CYA placement. Regarding appellant’s academic abilities, the report states that while “he needs help with reading and writing,” “[e]ducational records do not indicate that a determination has been made that [appellant] is an individual with special needs.”
The court briefly inquired as to appellant’s possible special education needs during the August 24, 2006 dispositional hearing (the August 24th hearing) when it asked the probation officer whether or not appellant had an IEP. The probation officer replied that appellant “does not have an IEP.” Based on this exchange, the court minutes for the August 24th hearing reflect findings that appellant “is not an individual with exceptional needs.”
At the conclusion of the August 24th hearing, the court committed appellant to CYA for a maximum term of confinement of five years eight months, less 294 days custody credit, and ordered him to pay restitution in the amount of $100. Additionally, the court specifically found that appellant was not an individual with exceptional needs.
The minute order for the August 24th hearing states that “Parent or Guardian shall reimburse the County for the care and support of the minor in an amount and at a rate determined by the financial hearing officer, including attorney’s fees.” The reporter’s transcripts provided to us make no mention of this reimbursement determination. A separate restitution hearing was set for September 15, 2006.
Appellant filed a timely notice of appeal on September 5, 2006.
III.
DISCUSSION
A. Commitment to CYA Was Not an Abuse of Discretion
Appellant’s first claim on appeal is that the juvenile court abused its discretion in committing him to CYA, because the record lacks evidence that appellant would benefit from a CYA commitment. More particularly, he contends that the juvenile court committed him to CYA without determining and considering his mental health and special education needs, and failed to assess whether appellant’s individual rehabilitative needs would be addresses by actual CYA programs.
The juvenile court has broad discretion in determining the appropriate rehabilitative and punitive measures for offenders. (§ 202; In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) Because the juvenile court had the opportunity to evaluate firsthand the credibility of the witnesses and survey the evidence presented, it is that court which is in the best position to determine the proper disposition for the minor. (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.) The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing the minor to CYA. (In re Michael R. (1977) 73 Cal.App.3d 327, 333; In re Todd W. (1979) 96 Cal.App.3d 408, 416.) Thus, we will 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 Schubert (1957) 153 Cal.App.2d 138, 143; In re Michael R., supra, 73 Cal.App.3d at pp. 332-333.) “In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law.” (In re Michael D., supra, 188 Cal.App.3d at p. 1395.)
Since 1984, section 202 has required that courts commit delinquent minors “in conformity with the interests of public safety and protection, [to] 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.” (§ 202, subds. (b) & (e)(5); In re Lorenza M. (1989) 212 Cal.App.3d 49, 57; In re Michael D., supra, 188 Cal.App.3d at p. 1396.) Although the 1984 amendment places a greater emphasis on punishment and societal protection, rehabilitation remains a critical objective of juvenile law. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; In re Michael D., supra, 188 Cal.App.3d at p. 1396.) To commit a minor to the CYA, the juvenile court must be “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 [CYA].” (§ 734.) Accordingly, the rehabilitative purposes of a CYA commitment are satisfied when there is (1) evidence in the record demonstrating probable benefit to the minor, and (2) evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate. (In re Teofilio A., supra, 210 Cal.App.3d at p. 576; In re Michael D., supra, 188 Cal.App.3d at p. 1396.)
There is no rigid test for determining whether a commitment to CYA would benefit a minor. (In re Martin L. (1986) 187 Cal.App.3d 534, 543-544.) Instead, the court must consider the individual circumstances in light of the potential reformative, educational, and rehabilitative, treatment, and disciplinary benefits CYA may provide to the minor. (See §§ 202, 734; In re Gerardo B. (1989) 207 Cal.App.3d 1252, 1258-1259.) Factors include the minor’s age, the seriousness of the minor’s criminal conduct, the minor’s mental and physical needs, the minor’s prior record, the extent of the minor’s need for a controlled environment, the threat the minor poses to the community, and the efficacy of prior dispositions in rehabilitating the minor. (Ibid.; In re Anthony M. (1981) 116 Cal.App.3d 491, 503-505; In re Jesse McM. (1980) 105 Cal.App.3d 187, 191-193.)
The evidence presented in this case unquestionably shows that appellant would benefit from a commitment to CYA, and thus the decision to commit was a proper exercise of the juvenile court’s discretion. The juvenile court found that appellant was amenable to rehabilitation in the juvenile court setting, and that he needed to be supervised once released. The court therefore declined to treat appellant as an adult. Appellant was neither eligible for group home placement due to his age, nor for placement at Camp Sweeney due to the use of a firearm in commission of his offense. Furthermore, the court noted that appellant had failed to reform on probation in the custody of his parent and in his placement at Trinity.
Given the violent nature of appellant’s offense, previous unsuccessful efforts to employ less restrictive means of rehabilitation, and the present lack of alternatives, the court was justified in determining that appellant’s “mental and physical condition and qualifications are such that would render it probable he’d benefit from the reformatory educational discipline or other programs provided by [CYA].”
B. Appellant’s Special Education Needs Require Further Assessment
Appellant second contention is that the juvenile court failed to determine or consider his educational needs when committing him to CYA. He alternatively requests that the juvenile court evaluate his special needs, make appropriate findings, and forward those findings to CYA.
Prior to committing a minor to CYA, “the juvenile court had a duty to consider or determine whether [the minor has] special education needs.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1398, & fn. 6 (Angela M.).) This consideration is mandated by California’s Education Code and the federal Individuals with Disabilities Education Act. (Id. at pp. 1397-1399; Ed. Code, § 56000 et seq.; 20 U.S.C. § 1400 et seq.) Pursuant to these statutes, a minor who is identified as an individual with exceptional needs by an IEP assessment team, and who meets other eligibility criteria, is entitled to participate in free appropriate public education. (Ed. Code, §§ 56000, 56026, subds. (a)-(d).)
Angela M. viewed this legislative mandate as implemented through California Rules of Court, rule 1493(e)(5), which directed that juvenile courts, “when declaring a child a ward of the court, ‘must consider the educational needs of the child.’. . .” (Angela M., supra, 111 Cal.App.4th at p. 1398, & fn. 4.) “This mandate to California’s juvenile courts is also incorporated in the Standards of Judicial Administration Recommended by the Judicial Counsel, which provide that the juvenile court should “ ‘[t]ake responsibility . . . at every stage of the child’s case, to ensure that the child’s educational needs are met. . . ’ ” (Id. at p. 1398, fn. 5; Cal. Stds. Jud. Admin., § 5.40(h)(1) & (2).) The Judicial Standards reiterate the legislative mandate that “[e]ach child under the jurisdiction of the juvenile court with exceptional needs has the right to receive a free, appropriate public education, specially designed, at no cost to the parents, to meet the child’s unique special education needs. . . .” (Ibid.) Thus, the court has a mandatory obligation to consider the educational needs of minors.
Rule 1493(e)(5) of the California Rules of Court has been significantly modified and renumbered rule 5.790(f)(5). Rule 5.790(f)(5) now states that “court[s] must consider whether it is necessary to limit the right of the parent or guardian to make educational decisions for the child. . . .”
As a preliminary matter, we reject respondent’s argument that appellant has forfeited his IEP claim due to his failure to request an IEP assessment during the August 24th hearing. A finding of forfeiture is inappropriate due to the mandatory nature of the juvenile court’s duty to consider or determine the educational needs of the child. (Angela M., supra, 111 Cal.App.4th at p. 1398.)
In Angela M., 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.” (Angela M., supra, 111 Cal.App.4th at p. 1399, fn. omitted.) Like appellant here, prior to her commitment at CYA, Angela underwent a psychological evaluation that strongly indicated that Angela had a disability and recommended that she undergo an IEP assessment. (Id. at p. 1395.) This evaluation placed the juvenile court “clearly on notice that Angela may have special educational needs.” (Id. at p. 1398.) Therefore, the juvenile court failed to fulfill its mandatory obligation to consider or determine Angela’s potential special education needs because it did not discuss the issue prior to committing her to CYA. (Id. at p. 1399.)
Appellant argues that he, like Angela, is entitled to more detailed consideration of his educational needs. We agree. As in Angela M., appellant’s prior psychological evaluation indicates that he suffered from a learning disability that impacted his academic performance and self image. Appellant’s mental health evaluation was conducted five years prior to his robbery conviction, whereas Angela’s evaluation was conducted as a result of her current offense. Nevertheless, the juvenile court was clearly on notice that that special consideration of appellant’s educational needs was appropriate.
Although the juvenile court inquired as to whether appellant had an IEP, apparently it was not aware of appellant’s psychological evaluation, or the three probation reports which indicated that an IEP assessment was one of the case objectives for appellant. While appellant’s grades may have improved during his outplacement at Trinity, he proceeded to fail in all of his classes within a year of returning home, and had not attended school for over one year prior to the current offense. The fact that now 18-year-old appellant still needs help with reading and writing strongly suggests that he has exceptional education needs that require further determination and accommodation.
Because there existed ample bases otherwise to sustain appellant’s CYA commitment, we see no justification to vacate that commitment simply due to an adequate consideration of appellant’s educational needs. Rather, we will follow a similar course of action to that used by the Angela M. court. Thus, the case will be remanded with directions to the juvenile court to determine whether an evaluation of appellant’s special educational needs should be conducted, and if so, to order an IEP. The juvenile court thereafter is to reconsider whether appellant has special educational needs and, if so, to forward its finding to the CYA in an amended commitment order together with the IEP, if such is prepared. (Angela M., supra, 111 Cal.App.4th at p. 1399.)
C. The Reference to a Reimbursement Order Contained in the August 24, 2006 Minute Order is Unenforceable
Appellant contends that the juvenile court did not order appellant’s parent or guardian to reimburse the county for his cost of care because this order is not mentioned in the court’s oral pronouncement of its orders at the conclusion of the August 24th hearing. Appellant requests that reference to the reimbursement order reflected in the August 24, 2006 abstract of judgment be stricken.
Respondent counters that: (1) the reimbursement order lacks an amount, thus is not final, and cannot be challenged until it becomes final (In re Julian O. (1994) 27 Cal.App.4th 847, 852 (Julian O.); and, (2) appellant is without standing to contest a reimbursement order levied at his parent or guardian. We disagree on both points.
First, Julian O. addressed the prematurity of a challenge to a reimbursement order after the order of restitution was made but before an amount was ordered. Julian O. is not applicable because appellant here is not challenging the reasonableness of the reimbursement order; instead he challenges the fact of whether any order was actually entered.
As to standing, the reimbursement order appears as part of the judgment entered against appellant. Pursuant to section 800, subdivision (a), appellant may appeal from any judgment entered under sections 601 or 602. Since this is clearly the case here, appellant can challenge the inclusion of the reimbursement order, regardless of whether his parent or guardian may also do so.
As to the merits “[e]ntering the judgment in the minutes being a clerical function (Pen. Code, § 1207), a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error.” (People v. Mesa (1975) 14 Cal.3d 466, 471.) By its very nature, definition and terms, the abstract of judgment “ ‘cannot add to or modify the judgment which it purports to digest or summarize.’. . .” (Ibid., quoting People v. Hartsell (1973) 34 Cal.App.3d 8, 14, disapproved on other grounds in People v. Karaman (1992) 4 Cal.4th 335.) In People v. Mesa, the California Supreme Court struck a reference to two prior robbery convictions from the abstract of judgment due to the trial court’s failure to make it clear during oral pronouncement that it intended to sentence defendant as a prior offender. (14 Cal.3d at p. 472.)
Because the minute order from the August 24th hearing conflicts with the court’s oral pronouncement, we order the reference to a reimbursement order in the August 24, 2006 abstract of judgment to be stricken. Upon remand, the juvenile court may reconsider such an order in its discretion.
IV.
Disposition
The order of the juvenile court committing appellant to CYA is affirmed. The matter is remanded to the juvenile court with directions to the juvenile court to determine whether an evaluation of appellant’s special educational needs should be conducted, and if so, to order an IEP. The juvenile court thereafter is to reconsider if appellant has special educational needs, and if so, to forward its finding to the CYA in an amended commitment order together with the IEP, if such is prepared. Finally, the reference to the reimbursement order contained in the August 24, 2006 abstract of judgment is stricken.
We concur: Reardon, J., Rivera, J.