California Legislature—2015–16 Regular Session

Assembly Bill No. 2695

Introduced by Assembly Member Obernolte

February 19, 2016

An act to amend Section 709 of the Welfare and Institutions Code, relating to juveniles.

LEGISLATIVE COUNSEL’S DIGEST

AB 2695, as introduced, Obernolte. Juvenile proceedings: competency.

Existing law authorizes, during the pendency of any juvenile proceeding, the minor’s counsel or the court to express a doubt as to the minor’s competency. Existing law requires proceedings to be suspended if the court finds substantial evidence raises a doubt as to the minor’s competency. Existing law requires the court to appoint an expert, as specified, 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.

This bill would revise and recast these provisions to, among other things, expand upon the duties imposed upon the expert during his or her evaluation of a minor whose competency is in doubt, as specified. The bill would authorize the district attorney or minor’s counsel to retain or seek the appointment of additional qualified experts with regard to determining competency, as specified. The bill would require the question of the minor’s competency to be determined at an evidentiary hearing, except as specified, and places the burden on the minor to establish by a preponderance of the evidence that he or she is incompetent. The bill would require the court, upon a finding of incompetency, to refer the minor to services designed to help the minor attain competency. If the court finds that the minor will not achieve competency, the bill would require the court to dismiss the petition. The bill would authorize the court to invite specified persons and agencies to discuss any services that may be available to the minor after the court’s jurisdiction is terminated, and would require the court to make certain referrals for the minor. The bill would require, among others, the presiding judge of a juvenile court, the probation department, and the county mental health department to develop a written protocol describing the competency process and a program to ensure that minors who are found incompetent receive appropriate remediation services. By imposing additional duties on local officials, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 709 of the Welfare and Institutions Code
is amended to read:

begin delete

709.  

(a) During the pendency of any juvenile proceeding, the
minor’s counsel or the court may express a doubt as to the minor’s
competency. 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. If
the court finds substantial evidence raises a doubt as to the minor’s
competency, the proceedings shall be suspended.

(b) 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.

(c) If the minor is found to be incompetent by a preponderance
of the evidence, all proceedings shall remain suspended for a period
of time 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, subject to subdivision (h), 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, the following:

(1) Motions to dismiss.

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

(3) Detention hearings.

(4) Demurrers.

(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.

end delete

begin insert

begin insert 709. end insert   

end insert begin insert

(a) (1) Whenever the court has a doubt that a minor who
is subject to any juvenile proceedings is mentally competent, the
court shall suspend all proceedings and proceed pursuant to this
section.

end insert begin insert

(2) A minor is mentally incompetent for purposes of this section
if he or she is unable to understand the nature of the proceedings,
including his or her role in the proceedings, or unable to assist
counsel in conducting a defense in a rational manner, including
a lack of a rational and factual understanding of the nature of the
charges or proceedings. Incompetency may result from the
presence of any condition or conditions, including, but not limited
to, mental illness, mental disorder, developmental disability, or
developmental immaturity. Except as specifically provided
otherwise, this section applies to a minor who is alleged to come
within the jurisdiction of the court pursuant to Section 601 or 602.

end insert begin insert

(3) During the pendency of any juvenile proceeding, the court
may receive information from any source regarding the minor’s
ability to understand the proceedings. The minor’s counsel or the
court may express a doubt as to the minor’s competency. The
receipt of information or the expression of doubt of the minor’s
counsel does not automatically require the suspension of
proceedings. If the court has a doubt as to the minor’s competency,
the court shall suspend the proceedings.

end insert begin insert

(b) (1) Unless the parties stipulate to a finding that the minor
lacks competency, or the parties are willing to submit on the issue
of the minor’s lack of competency, the court shall appoint an expert
to evaluate the minor and determine whether the minor suffers
from a mental illness, mental disorder, developmental disability,
developmental immaturity, or other condition affecting competency
and, if so, whether the minor is competent.

end insert begin insert

(2) The expert shall have expertise in child and adolescent
development and forensic evaluation of juveniles for purposes of
adjudicating competency, shall be familiar with competency
standards and accepted criteria used in evaluating juvenile
competency, and shall have received training in conducting
juvenile competency evaluations.

end insert begin insert

(3) The expert shall personally interview the minor and review
all of the available records provided, including, but not limited
to, medical, education, special education, probation, child welfare,
mental health, regional center, and court records, and any other
relevant information that is available. The expert shall consult
with the minor’s counsel and any other person who has provided
information to the court regarding the minor’s lack of competency.
The expert shall gather a developmental history of the minor. If
any information is unavailable to the expert, he or she shall note
in the report the efforts to obtain that information. The expert shall
administer age-appropriate testing specific to the issue of
competency unless the facts of the particular case render testing
unnecessary or inappropriate. In a written report, the expert shall
opine whether the minor has the sufficient present ability to consult
with his or her counsel with a reasonable degree of rational
understanding and whether he or she has a rational and factual
understanding of the proceedings against him or her. The expert
shall also state the basis for these conclusions. If the expert
concludes that the minor lacks competency, the expert shall make
recommendations regarding the type of remediation services that
would be effective in assisting the minor in attaining competency,
and, if possible, the expert shall address the likelihood of the minor
attaining competency within a reasonable period of time.

end insert begin insert

(4) The Judicial Council shall adopt a rule of court identifying
the training and experience needed for an expert to be competent
in forensic evaluations of juveniles, and shall develop and adopt
rules for the implementation of the other requirements in this
subdivision.

end insert begin insert

(5) Statements made to the appointed expert during the minor’s
competency evaluation, statements made by the minor to mental
health professionals during the remediation proceedings, and any
fruits of those statements shall not be used in any other hearing
against the minor in either juvenile or adult court.

end insert begin insert

(6) The district attorney or minor’s counsel may retain or seek
the appointment of additional qualified experts who may testify
during the competency hearing. The expert’s report and
qualifications shall be disclosed to the opposing party within a
reasonable time before, but no later than five court days before,
the hearing. If disclosure is not made in accordance with this
paragraph, the expert shall not be allowed to testify, and the
expert’s report shall not be considered by the court unless the
court finds good cause to consider the expert’s report and
testimony. If, after disclosure of the report, the opposing party
requests a continuance in order to further prepare for the hearing
and shows good cause for the continuance, the court shall grant
a continuance for a reasonable period of time.

end insert begin delete

(f)

end delete

begin insert (7) end insert  If the expert believes the minor is developmentally disabled,
the court shall appoint the director of a regional center for
developmentally disabled individuals described in Article 1
(commencing with Section 4620) of Chapter 5 of Division 4.5, or
his or her designee, to evaluate the minor. The director of the
regional center, or his or her designee, shall determine whether
the minor is eligible for services under the Lanterman
Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500)), and shall provide the court with
a written report informing the court of his or her determination.
The court’s appointment of the director of the regional center for
determination of eligibility for services shall not delay the court’s
proceedings for determination of competency.

begin delete

(g)

end delete

begin insert (8) end insert  An expert’s opinion that a minor is developmentally disabled
does not supersede an independent determination by the regional
center begin delete whether the minor is eligible end delete begin insert regarding the minor’s
eligibility end insert for services under the Lanterman Developmental
Disabilities Services Act (Division 4.5 (commencing with Section
4500)).

begin delete

(h)

end delete

begin insert (9) end insert  Nothing in this section shall be interpreted to authorize or
require begin insert either of end insert the following:

begin delete

(1) The court to place

end delete

begin insert (A) end insert begin insert   end insert begin insert Placement of end insert a minor who is incompetent in a
developmental center or community facility operated by the State
Department of Developmental Services without a determination
by a regional center director, or his or her designee, that the minor
has a developmental disability and is eligible for services under
the Lanterman Developmental Disabilities Services Act (Division
4.5 (commencing with Section 4500)).

begin delete

(2) The director of the regional center, or his or her designee,
to make determinations

end delete

begin insert (B) end insert begin insert   end insert begin insert D end insert begin insert eterminations end insert regarding the competency of a begin delete minor. end delete begin insert minor
by the director of the regional center or his or her designee. end insert

begin insert

(c) The question of the minor’s competency shall be determined
at an evidentiary hearing unless there is a stipulation or submission
by the parties on the findings of the expert. The minor has the
burden of establishing by a preponderance of the evidence that he
or she is incompetent.

end insert begin insert

(d) If the court finds the minor to be competent, the court shall
reinstate proceedings and proceed commensurate with the court’s
jurisdiction.

end insert begin insert

(e) If the court finds, by a preponderance of evidence, that the
minor is incompetent, all proceedings shall remain suspended for
a period of time 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. 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, all of the following:

(1) Motions to dismiss.

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

(3) Detention hearings.

(4) Demurrers.

(f) Upon a finding of incompetency, the court shall refer the
minor to services designed to help the minor attain competency.
Service providers and evaluators shall adhere to the standards
stated in this section and the California Rules of Court. Services
shall be provided in the least restrictive environment consistent
with public safety. Priority shall be given to minors in custody.
Service providers shall determine the likelihood of the minor
attaining competency within a reasonable period of time, and if
the opinion is that the minor will not attain competency within a
reasonable period of time, the minor shall be returned to court at
the earliest possible date. The court shall review remediation
services at least every 30 calendar days for minors in custody and
every 45 calendar days for minors out of custody.

(g) (1) Upon receipt of the recommendation by the remediation
program, the court shall hold an evidentiary hearing on whether
the minor is remediated or is able to be remediated unless the
parties stipulate to, or agree to the recommendation of, the
remediation program. If the recommendation is that the minor has
attained competency, and if the minor disputes that
recommendation, the burden is on the minor to prove by a
preponderance of evidence that he or she remains incompetent. If
the recommendation is that the minor is unable to be remediated
and if the prosecutor disputes that recommendation, the burden
is on the prosecutor to prove by a preponderance of evidence that
the minor is remediable. If the prosecution contests the evaluation
of continued incompetence, the minor shall be presumed
incompetent and the prosecution shall have the burden to prove
by a preponderance of evidence that the minor is competent. The
provisions of subdivision (c) shall apply at this stage of the
proceedings.

(2) If the court finds that the minor has been remediated, the
court shall reinstate the proceedings.

(3) If the court finds that the minor has not yet been remediated,
but is likely to be remediated, the court shall order the minor to
return to the remediation program.

(4) If the court finds that the minor will not achieve competency,
the court shall dismiss the petition. The court may invite persons
and agencies with information about the minor, including, but not
limited to, the minor and his or her attorney, the probation
department, parents, guardians, or relative caregivers, mental
health treatment professionals, the public guardian, educational
rights holders, education providers, and social services agencies,
to the dismissal hearing to discuss any services that may be
available to the minor after jurisdiction is terminated. If
appropriate, the court shall refer the minor for evaluation pursuant
to Article 6 (commencing with Section 5300) of Chapter 2 of Part
1 of Division 5 or Article 3 (commencing with Section 6550) of
Chapter 2 of Part 2 of Division 6.

(h) The presiding judge of the juvenile court, the probation
department, the county mental health department, the public
defender and other entity that provides representation for minors,
the district attorney, the regional center, if appropriate, and any
other participants that the presiding judge shall designate, shall
develop a written protocol describing the competency process and
a program to ensure that minors who are found incompetent
receive appropriate remediation services.

end insert

SEC. 2.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.