BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 2 2 1 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 (More) AB 2212 (Fuentes) PageB 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).) (More) AB 2212 (Fuentes) PageC 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 (More) AB 2212 (Fuentes) PageD 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 (More) AB 2212 (Fuentes) PageE 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 (More) AB 2212 (Fuentes) PageF 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). (More) AB 2212 (Fuentes) PageG 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. (More) AB 2212 (Fuentes) PageH . . . (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 (More) AB 2212 (Fuentes) PageI incompetent. Moreover, despite the fact that proceedings would be suspended, no hearing would ever be conducted on the question of the minor's competency. (More) 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 (More) AB 2212 (Fuentes) PageK 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) PageL 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. ***************