Amended in Assembly April 19, 2016

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 amended, 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. begin insert The bill would require the Judicial Council to adopt a rule of court relating to the qualifications of those experts, as specified. end insert The bill would require begin delete the question of end delete the minor’s competency to be determined at an evidentiary hearing, except as specified, and begin delete places the burden on the minor to end delete establish begin insert a presumption of competency, unless it is proven end insert 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 begin delete competency, end delete begin insert competency within a reasonable period of time, end insert 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. begin delete By end delete begin insert Notwithstanding these provisions, the bill would prohibit remediation services from exceeding certain time periods, as specified. end insert

begin insert By end insert imposing additional duties on local officials, begin delete the end delete begin insert this end insert 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:

709.  

(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.

(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.

(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.

(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.

(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.

(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.

(4) The Judicial begin delete Council end delete begin insert Council, in conjunction with groups
or individuals representing judges, defense counsel, district
attorneys, counties, advocates for people with developmental and
mental disabilities, state psychologists and psychiatrists,
professional associations and accredited bodies for psychologists
and psychiatrists, and other interested stakeholders, end insert shall adopt a
rule of court identifying the training and experience needed for an
expert to be competent in forensic evaluations of begin delete juveniles, and end delete
begin insert juveniles. The Judicial Council end insert shall develop and adopt rules for
the implementation of the other requirements in this subdivision.

(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.

(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.

(7) 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.

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

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

(A) Placement of 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)).

(B) Determinations regarding the competency of a minor by the
director of the regional center or his or her designee.

(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. begin delete The minor has the
burden of establishing by a preponderance of the evidence that he
or she is incompetent. end delete begin insert It shall be presumed that the minor is
mentally competent, unless it is proven by a preponderance of the
evidence that the minor is mentally incompetent. end insert

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

(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 begin delete remediated, end delete begin insert remediated within a reasonable
period of time, end insert the court shall order the minor to return to the
remediation program.

(4) If the court finds that the minor will not achieve begin delete competency, end delete
begin insert competency within a reasonable period of time, end insert 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.

begin insert

(5) In no case shall remediation extend beyond two years, or a
period of time equal to the maximum term of detention for the most
serious charge on the petition, whichever is shorter, on a petition
that contains a felony offense. In no case shall remediation extend
beyond one year, or a period of time equal to the maximum term
of detention provided by law for the most serious offense,
whichever is shorter, on a petition that contains only misdemeanor
offenses.

end insert

(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.

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.