BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          AB 2212 (Fuentes)                                          2
          As Amended June 10, 2010 
          Hearing date:  June 22, 2010
          Welfare and Institutions Code
          AA:mc

                                  JUVENILE OFFENDERS:

                                 MENTAL INCOMPETENCE  


                                       HISTORY

          Source:  Author

          Prior Legislation: SB 570 (Migden) - Ch. 265, Stats. 2005
                       AB 2019 (Steinberg) - 2004, died on Senate inactive  
          file
                       SB 1744 (Scott) - 2002, died in the Senate

          Support: California District Attorneys Association (as proposed  
          to be amended); Youth Law                              Center;  
          National Alliance on Mental Illness; California Public Defenders  
                   Association

          Opposition:None known

          Assembly Floor Vote:  Ayes  74 - Noes  0



                                         KEY ISSUE
           




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                                                          AB 2212 (Fuentes)
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          SHOULD a statutory provision consistent with case law BE ENACTED  
          TO describE the process and standards for handling incompetent  
          minors before the juvenile court, as specified?




                                       PURPOSE

          The purpose of this bill is to enact a statutory provision  
          consistent with case law describing the process and standards  
          for handling incompetent minors before the juvenile court, as  
          specified.

           Current law  generally provides that a person cannot be tried or  
          adjudged to punishment while that person is mentally  
          incompetent.<1>  (Penal Code  1367.)

           Current law  provides specified procedures applicable where,  
          during the pendency of an action and prior to judgment, a doubt  
          arises in the mind of the judge as to the mental competence of  
          the defendant.  (Penal Code  1368 et seq.)

           Current case law  and Rules of Court address the issue of  
          incompetent minors in juvenile court proceedings.  (See Comment  
          3, infra.)

           This bill  would enact a new statutory provision, consistent with  
          existing case law, to address the issue of incompetent minors in  
          the juvenile court, as follows:


                  This bill  would provide that during the pendency of any  
               juvenile proceeding, the minor's counsel or the court may  
             --------------------------
          <1>  "A defendant is mentally incompetent for purposes of this  
          chapter if, as a result of mental disorder or developmental  
          disability, the defendant is unable to understand the nature of  
          the criminal proceedings or to assist counsel in the conduct of  
          a defense in a rational manner."  (Penal Code  1367(a).)




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                                                          AB 2212 (Fuentes)
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               express a doubt as to the minor's competency. 



                  This bill  would provide that a "minor is incompetent to  
               proceed if he or she lacks sufficient present ability to  
               consult with counsel and assist in preparing his or her  
               defense with a reasonable degree of rational understanding,  
               or lacks a rational as well as factual understanding, of  
               the nature of the charges or proceedings against him or  
               her."



                  This bill  would provide that if "the court finds  
               substantial evidence raises a doubt as to the minor's  
               competency, the proceedings shall be suspended."



                  This bill  would provide that upon "suspension of  
               proceedings, the court shall order that the question of the  
               minor's competence be determined at a hearing.  The court  
               shall appoint an expert to evaluate whether the minor  
               suffers from a mental disorder, developmental disability,  
               developmental immaturity, or other condition and, if so,  
               whether the condition or conditions impair the minor's  
               competency.  The expert shall have expertise in child and  
               adolescent development, and training in the forensic  
               evaluation of juveniles, and shall be familiar with  
               competency standards and accepted criteria used in  
               evaluating competence.  The Judicial Council shall develop  
               and adopt rules for the implementation of these  
               requirements."



                  This bill  would provide that if "the minor is found to  
               be incompetent by a preponderance of the evidence, all  
               proceedings shall remain suspended for a period of time  




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               that is no longer than reasonably necessary to determine  
               whether there is a substantial probability that the minor  
               will attain competency in the foreseeable future, or the  
               court no longer retains jurisdiction.  During this time,  
               the court may make orders that it deems appropriate for  
               services that may assist the minor in attaining competency.  
                Further, the court may rule on motions that do not require  
               the participation of the minor in the preparation of the  
               motions.  These motions include, but are not limited to:



                  (1)       Motions to dismiss.

                  (2)       Motions by the defense regarding a change in  
                    the placement of the minor.

                  (3)       Detention hearings.

                  (4)       Demurrers.
                                          
              RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
          
          The severe prison overcrowding problem California has  
          experienced for the last several years has not been solved.  In  
          December of 2006 plaintiffs in two federal lawsuits against the  
          Department of Corrections and Rehabilitation sought a  
          court-ordered limit on the prison population pursuant to the  
          federal Prison Litigation Reform Act.  On January 12, 2010, a  
          federal three-judge panel issued an order requiring the state to  
          reduce its inmate population to 137.5 percent of design capacity  
          -- a reduction of roughly 40,000 inmates -- within two years.   
          In a prior, related 184-page Opinion and Order dated August 4,  
          2009, that court stated in part:

               "California's correctional system is in a tailspin,"  
               the state's independent oversight agency has reported.  
               . . .  (Jan. 2007 Little Hoover Commission Report,  
               "Solving California's Corrections Crisis: Time Is  
               Running Out").  Tough-on-crime politics have increased  




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               the population of California's prisons dramatically  
               while making necessary reforms impossible. . . .  As a  
               result, the state's prisons have become places "of  
               extreme peril to the safety of persons" they house, .  
               . .  (Governor Schwarzenegger's Oct. 4, 2006 Prison  
               Overcrowding State of Emergency Declaration), while  
               contributing little to the safety of California's  
               residents, . . . .   California "spends more on  
               corrections than most countries in the world," but the  
               state "reaps fewer public safety benefits." . . .  .   
               Although California's existing prison system serves  
               neither the public nor the inmates well, the state has  
               for years been unable or unwilling to implement the  
               reforms necessary to reverse its continuing  
               deterioration.  (Some citations omitted.)

               . . .

               The massive 750% increase in the California prison  
               population since the mid-1970s is the result of  
               political decisions made over three decades, including  
               the shift to inflexible determinate sentencing and the  
               passage of harsh mandatory minimum and three-strikes  
               laws, as well as the state's counterproductive parole  
               system.  Unfortunately, as California's prison  
               population has grown, California's political  
               decision-makers have failed to provide the resources  
               and facilities required to meet the additional need  
               for space and for other necessities of prison  
               existence.  Likewise, although state-appointed experts  
               have repeatedly provided numerous methods by which the  
               state could safely reduce its prison population, their  
               recommendations have been ignored, underfunded, or  
               postponed indefinitely.  The convergence of  
               tough-on-crime policies and an unwillingness to expend  
               the necessary funds to support the population growth  
               has brought California's prisons to the breaking  
               point.  The state of emergency declared by Governor  
               Schwarzenegger almost three years ago continues to  
               this day, California's prisons remain severely  




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               overcrowded, and inmates in the California prison  
               system continue to languish without constitutionally  
               adequate medical and mental health care.<2>

          The court stayed implementation of its January 12, 2010 ruling  
          pending the state's appeal of the decision to the U.S. Supreme  
          Court.  On Monday, June 14, 2010, the U.S. Supreme Court agreed  
          to hear the state's appeal in this case.   

           This bill  does not aggravate the prison overcrowding crisis  
          described above.

                                      COMMENTS

          1.  Stated Need for This Bill

           The author states:

               The problem with existing law is that it is unclear  
               and/or inconsistent as to whether there must be a  
               finding of mental disorder or developmental disability  
               in order for a court to find a minor incompetent to  
               stand trial.  The California Court of Appeal for the  
               Third District held that there is no such requirement,  
               and to proceed to trial against a minor who is  
               incompetent to stand trial based on "age-related  
               developmental disability" violates due process.  See  
                Timothy J. v. Superior Court  , 150 Cal.App.4th 847.   
               This ruling only applies to cases filed in some parts  
               of California, however.

          2.  What This Bill Would Do
           
          As explained in detail above, this bill would enact a statutory  
          ---------------------------
          <2>   Three Judge Court Opinion and Order, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (August 4, 2009).



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          provision consistent with case law describing the process and  
          standards for handling incompetent minors before the juvenile  
          court, as specified.

          3.  Existing Case Law; California Rules of Court

           This bill appears to be consistent with existing case law and  
          rules of court on the issue of how courts must handle issues  
          involving the competency of a minor subject to a delinquency  
          petition.  Current statutory law provides procedures to evaluate  
          the legal competency of adults in criminal proceedings, but  
          provides no comparable provisions for minors in the juvenile  
          system.  For several years, appellate courts have attempted to  
          deal with this gap by cobbling together provisions of the  
          juvenile law, the Penal Code and the Lanterman-Petris-Short Act  
          (WIC  5000 et seq.).  As the Legislature considers this bill,  
          authority based on United State Supreme Court decisional law,  
          several California appellate court cases, and a Rule of Court  
          inform the status of current law as it applies to minors before  
          the juvenile court for whom competency may be an issue.

          "It is well established that the criminal trial of an  
          incompetent defendant violates the due process clause of the  
          state and federal Constitutions.  . . .  The standard for  
          determining a defendant's competency to stand trial was set  
          forth in (  Dusky v. United States  (1960) 362 U.S. 402).  Under  
          that standard, the inquiry is whether the defendant 'has  
          sufficient present ability to consult with his lawyer with a  
          reasonable degree of rational understanding-and whether he has a  
          rational as well as factual understanding of the proceedings  
          against him.' Subsequent to Dusky, the high court extended the  
          rights of due process to juvenile delinquency proceedings . . .  
          . "  (  Timothy J. v. Superior Court  (2007) 150 Cal. App. 4th 847,  
          877 (some citations omitted).)

          In 2002, this Committee considered another measure which sought  
          to address the issue of minor incompetence.<3>  The following  
          analysis described the uncertainty of the law at that time:

          ---------------------------
          <3>   SB 1477 (Scott) (2001-2002 legislative session) - died in  
          the Senate.



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                 . . .  (I)ncompetence to stand trial is  not  the  
                 same mental state as grave disability or  
                 dangerousness, the mental state which may result  
                 in treatment under the Lanterman-Petris-Short  
                 (LPS) Act.  ( Conservatorship of Moore  (1986) 185  
                 Cal.App.3d 718, 732;  Hale  v.  Superior Court  (1975)  
                 15 Cal.3d 221, 225.)  The Legislature has  
                 specifically provided that, whether adult or  
                 juvenile, a person committed under the LPS Act has  
                 a right to proceed to trial or adjudication  
                 despite that grave disability or dangerousness,  
                 unless a finding is made by medical authorities  
                 that such proceedings would be detrimental to the  
                 person's well being.  (Pen. Code  4011.6; see  
                  People  v.  Vass  (1988) 196 Cal.App.3d Supp. 13,  
                 17.)  Consequently, a person who is incompetent  
                 should receive treatment with criminal proceedings  
                 suspended only until such time as the person is  
                 competent; a person who is gravely disabled but  
                  not  incompetent should not usually have criminal  
                 proceedings suspended at all.

                 The first case to consider the problem of the  
                 absence of statutes applicable to incompetent minors  
                 was  James H.  v.  Superior Court  ,  supra  , 77 Cal.App.3d  
                 169.  In that case the court held that if a juvenile  
                 was found to be incompetent, the juvenile court  
                 should suspend proceedings "resort should then be  
                 made to existing juvenile court proceedings under  
                 Welfare and Institutions Code section 705.  . . .   
                 However, section 705 merely invokes Welfare and  
                 Institutions Code section 6550 and Penal Code  
                 section 4011.6, both of which concern proceedings  
                  under the LPS Act  .  Moreover, section 6550 is  
                 applicable only  after  a finding of wardship; it is  
                 not applicable prior to adjudication.  . . .  As a  
                 result of the  James H.  decision, a minor could have  
                 proceedings suspended and delayed if the minor was  
                 gravely disabled, even if the minor was  not   




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                 incompetent.  Moreover, despite the fact that  
                 proceedings would be suspended, no hearing would  
                  ever  be conducted on the question of the minor's  
                 competency.








































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                 The next case to consider the issue was  In re Mary T.   
                 (1985) 176 Cal.App.3d 38.  In that case, the point  
                 was made that an adult could not be involuntarily  
                 treated for incompetence without the right to an  
                 initial finding of probable cause to believe the  
                 person had committed a criminal offense.  The  
                 response of the  Mary T.  court was to find that a  
                 juvenile is  not  being treated for incompetence, but  
                 for grave disability under the LPS Act, which could  
                 have been done in the absence of any juvenile court  
                 proceedings at all.  Again, the  Mary T.  court did not  
                 appear to appreciate the significant differences  
                 between competency and grave disability, and thus did  
                 not consider the problem which arises if a juvenile  
                 is  not  gravely disabled, but is incompetent, in which  
                 case either there is  no  treatment for incompetence,  
                 or there is treatment for incompetence without a  
                 finding of probable cause.  The converse problem,  
                 which arises if the juvenile  is  gravely disabled, but  
                 is  not  incompetent, and thus should be afforded a  
                 prompt trial, is also not recognized by the  Mary T.   
                 court.  Again, juvenile proceedings could be  
                 suspended and the minor  never  be given a hearing on  
                 the issue of competence.

                 The latest case to consider the issue is  In re  
                 Patrick H.  (1997) 54 Cal.App.4th 1346.  In that case,  
                 a juvenile court found a minor to be incompetent. . .  
                 .  The juvenile court then purported to commit the  
                 minor for treatment under the competency provisions  
                 relating to  adults  .  (Pen. Code  1370.)  Thereafter,  
                 the minor was  also  found to be gravely disabled, and  
                 was committed under the LPS Act.  That court  
                 attempted to graft Penal Code section 4011.6  
                 procedures into LPS Act proceedings, holding that a  
                 minor cannot be committed under Penal Code section  
                 1370, but can be held under the LPS Act, but the  
                 juvenile court "retains jurisdiction" unless it is  
                 found that adjudication would be detrimental to his  




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                 well-being.  This would appear to suggest that the  
                 minor has a right to a speedy adjudication, but such  
                 an adjudication could not take place if the minor was  
                 incompetent.<4>

          In 1999, Rule of Court 1498 was adopted in response to the  James  
          H  . decision described above.  That Rule, now California Rule of  
          Court 5.645(d), provides:


               If the court finds that there is reason to doubt that  
               a child who is the subject of a petition filed under  
               section 601 or 602 is capable of understanding the  
               proceedings or of cooperating with the child's  
               attorney, the court must stay the proceedings and  
               conduct a hearing regarding the child's competence. 



                         (1)The court may appoint an expert to  
               examine the child to evaluate the child's capacity to  
               understand the proceedings and to cooperate with the  
               attorney. 

                         (2)If the court finds that the child is not  
               capable of understanding the proceedings or of  
               cooperating with the attorney, the court must proceed  
               under section 6550 and (a)-(c) of this rule. 

                         (3)If the court finds that the child is  
               capable of understanding the proceedings and of  
               cooperating with the attorney, the court must proceed  
               with the case. 

          In 2007, the court of appeal in  Timothy J. v. Superior Court  ,  
          held that this Rule of Court, consistent with the constitutional  
          ---------------------------
          <4>  Analysis: SB 1744 (Scott) (2002), Prepared by John Hamilton  
          Scott, Deputy Public Defender, Los Angeles, March 18, 2002, and  
          quoted in the analysis of SB 1744 by the Senate Committee on  
          Public Safety, April 9, 2002 (emphasis in original).











                                                          AB 2212 (Fuentes)
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          requirements described above, "does not require that the minor  
          have a mental disorder or developmental disability before a  
          doubt may be raised or a finding made that he is incompetent to  
          stand trial."  (  Timothy J. v. Superior Court  , supra, 150  
          Cal.App. at 861.)

          4.  Technical Amendment

           The most recent amendments to the bill inadvertently deleted the  
          following two provisions that should be added back into the  
          bill; the author intends to make this correction in Committee:


               (d)  If the minor is found to be competent, the court  
               may proceed commensurate with the court's  
               jurisdiction.



               (e)  This section applies to a minor who is alleged to  
               come within the jurisdiction of the court pursuant to  
               Section 601 or 602.


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