BILL ANALYSIS Ó AB 2695 Page 1 Date of Hearing: April 12, 2016 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 2695 (Obernolte) - As Introduced February 19, 2016 SUMMARY: Revises the procedure when there is a question about the mental competence of a juvenile charged with a crime. Specifically, this bill: 1)States that 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 make a determination of competence. 2)Specifies that a minor is mentally incompetent 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. 3)States that 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. 4)Allows the court to receive information from any source regarding the minor's ability to understand the proceedings. AB 2695 Page 2 5)States that the minor's counsel or the court may express a doubt as to the minor's competency, but the receipt of information or the expression of doubt of the minor's counsel does not automatically require the suspension of proceedings. 6)Provides that if the court has a doubt as to the minor's competency, the court shall suspend the proceedings. 7)States that 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 is competent. 8)Requires the expert to have expertise in child and adolescent development and forensic evaluation of juveniles for purposes of adjudicating competency, to be familiar with competency standards and accepted criteria used in evaluating juvenile competency, and to have received training in conducting juvenile competency evaluations. 9)Requires the expert to 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. 10)Requires the expert to consult with the minor's counsel and any other person who has provided information to the court regarding the minor's lack of competency, to gather a developmental history of the minor, to administer age-appropriate testing specific to the issue of competency, unless the facts of the particular case render testing unnecessary or inappropriate. 11)Specifies that 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 AB 2695 Page 3 her. 12)Specifies that if the expert concludes that the minor lacks competency, the expert shall make recommendations regarding the type of 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. 13)Requires the Judicial Council to 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. 14)Specifies that 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. 15)Allows the district attorney or minor's counsel to retain or seek the appointment of additional qualified experts who may testify during the competency hearing. 16)Requires an expert's report and qualifications to be disclosed to the opposing party within a reasonable time before, but no later than five court days before, the hearing. 17)States that 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. 18)Specifies that the minor has the burden of establishing by a preponderance of the evidence that he or she is incompetent. 19)Provides that if the court finds the minor to be competent, the court shall reinstate proceedings and proceed. AB 2695 Page 4 20)States that 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. 21)Requires the court upon a finding of incompetency, to refer the minor to services designed to help the minor attain competency. 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. 22)Requires the court to review remediation services at least every 30 calendar days for minors in custody and every 45 calendar days for minors out of custody. 23) Requires the court receipt of the recommendation by the remediation program, to 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. 24)Specifies that 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. 25)Specifies that 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. 26)States that if the court finds that the minor has been remediated, the court shall reinstate the proceedings. 27)Provides that 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. AB 2695 Page 5 28)States that if the court finds that the minor will not achieve competency, the court shall dismiss the charges. 29)States that the proceedings above apply to juveniles before the court for criminal for criminal charges. EXISTING LAW: 1) States that during any juvenile proceeding, the minor's counsel or the court may express a doubt as to the minor's competency. (Welf. & Inst., § 709, subd. (a).) 2)Specifies 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. (Welf. & Inst., § 709, subd. (a).) 3)If the court finds substantial evidence raises a doubt as to the minor's competency, the proceedings shall be suspended. (Welf. & Inst., § 709, subd. (a).) 4)States that upon suspension of proceedings, the court shall order that the question of the minor's competence be determined at a hearing. (Welf. & Inst., § 709, subd. (b).) 5)Requires the court to 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. (Welf. & Inst., § 709, subd. (b).) 6)Requires the expert to 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. (Welf. & AB 2695 Page 6 Inst., § 709, subd. (b).) 7)States that the Judicial Council shall develop and adopt rules for the implementation of these requirements. (Welf. & Inst., § 709, subd. (b).) 8)Specifies 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 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. (Welf. & Inst., § 709, subd. (c)(1).) 9)Provides that during the time proceedings are suspended, 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 specified motions (Welf. & Inst., § 709, subd. (c)(1).) 10)States that if the minor is found to be competent, the court may proceed commensurate with the court's jurisdiction. (Welf. & Inst., § 709, subd. (d).) 11)Specifies that if the expert believes the minor is developmentally disabled, the court shall appoint the director of a regional center for developmentally disabled individuals, as specified, to evaluate the minor. (Welf. & Inst., § 709, subd. (f).) 12)Specifies that 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, and shall provide the court with a written report informing the court of his or her determination. (Wel. AB 2695 Page 7 & Inst., § 709, subd. (f).) 13)States that an expert's opinion that a minor is developmentally disabled does not supersede an independent determination by the regional center whether the minor is eligible for services under the Lanterman Developmental Disabilities Services Act. (Welf. & Inst., § 709, subd. (g).) 14)Specifies that if a doubt arises in the mind of the judge as to the mental competence of an adult defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. (Pen. Code, § 1368, subd. (a).) 15)Provides that if counsel informs the court that he or she believes the adult defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing. (Pen. Code, § 1368, subd. (b).) 16)In any case where the adult defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof; (Pen. Code, § 1369, subd. (a).) 17)Allows one of the psychiatrists or licensed psychologists to be named by the defense and one to be named by the prosecution, when two experts are appointed. (Pen. Code, § 1369, subd. (a).) 18)States a presumption that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. (Pen. Code, § 1369, subd. (f).) AB 2695 Page 8 19)States that at the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment, as specified, whichever is shorter, but no later than 90 days prior to the expiration of the defendant's term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court. (Pen. Code, § 1370, subd. (c)(1).) 20)States that if, at the end of one year from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the misdemeanor complaint, whichever is shorter, the defendant has not recovered mental competence, the defendant shall be returned to the committing court. (Pen. Code, § 1370.01, subd. (c)(1).) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "There are a number of deficiencies in the existing laws that lay out the procedures for determining whether minors are able to understand and participate in court proceedings. As a result, juveniles that may lack competency are being underserved and left without proper protection. "AB 2695, sponsored by the Judicial Council, would address these issues and revise the provisions for assessing a minor's competency and set guidelines for how to proceed if they are deemed incompetent. It is the result of a two year working group, consisting of members of California's Family and Juvenile Law Advisory Committee, Collaborative Justice Courts Advisory Committee and Mental Health Issues Implementation Task Force. Among the stakeholders that participated in the working group were judges, a chief probation officer, a deputy district attorney, a deputy public defender and a private defense attorney. "Together with input from public comment, the working group AB 2695 Page 9 drafted a set of amendments to the Welfare and Institutions Code that would clarify and improve these procedures. The result, AB 2695, presents a cohesive set of guidelines for competency proceedings that will better protect minors who are facing competency questions." 2)Current Juvenile Competency Standards and Procedures: Adult mental incompetency is currently defined as lacking sufficient present ability to consult with counsel and assist in preparing a defense with a reasonable degree of rational understanding or lacking a rational as well as factual understanding of the nature of the charges or proceedings. While those same factors would be considered in evaluating the competency of a minor, the court would also consider the minors developmental maturity. Unlike an adult, a minor may be determined to be incompetent based on developmental immaturity alone (Timothy J. v. Superior Court, 150 Cal.App.4th 847 (2007)). The current statute governing juvenile competency procedures was put in place in 2010. (AB 2212 (Fuentes), Chapter 671, Statutes of 2010.) The language of that statute created some procedural gaps regarding how a juvenile should be treated if they are found to be incompetent. That statute also does not provide thorough guidelines regarding the experts responsible for evaluating the minor. 3)Adults and Juveniles Have Different Cognitive Abilities: Researchers in the science of human development, however, generally agree that from a developmental standpoint an adolescent is not an adult. "The evidence now is strong that the brain does not cease to mature until the early 20s in those relevant parts that govern impulsivity, judgment, planning for the future, foresight of consequences, and other characteristics that make people morally culpable . . . Indeed, age 21 or 22 would be closer to the 'biological' age of maturity." [Adolescent Brain Development and Legal Culpability, American Bar Assn. Criminal Justice Section, Juvenile Justice Center (Winter 2003).] Lack of culpability is at the heart of the Court of Appeal AB 2695 Page 10 decision in Timothy J., supra, holding that developmental immaturity is grounds for a finding of not competent. The Court stated: "As a matter of law and logic, an adult's incompetence to stand trial must arise from a mental disorder or developmental disability that limits his or her ability to understand the nature of the proceedings and to assist counsel (internal citation omitted.) The same may not be said of a young child whose developmental immaturity may result in trial incompetence despite the absence of any underlying mental or developmental abnormality. Dr. Edwards testified that minors are different from adults because their brains are still developing and as myelination occurs during puberty, the minor develops the ability to think logically and abstractly. Both experts concluded that because of his age, [the minor's] brain has not fully developed and he was unable to think in those ways. "Their conclusions are supported by the literature, which indicates that there is a relationship between age and competency to stand trial and that an adolescent's cognitive, psychological, social, and moral development has a significant biological basis. [Steinberg, Juveniles on Trial: MacArthur Foundation Study Calls Competency into Question (2003) 18 Crim. Just. supra, 20, 21.] "While many factors affect a minor's competency to stand trial, 'the younger the juvenile defendant, the less likely he or she will be to manifest the type of cognitive understanding sufficient to satisfy the requirements of the Dusky standard'." (Internal citation omitted.) According to Steinberg, the frontal lobes oversee high-level cognitive tasks such as hypothetical thinking, logical reasoning, long-range planning, and complex decision-making. During puberty, that area of the brain matures as the myelination process takes place. (Steinberg, supra, 18 Criminal Justice, at p. 20.) "The research indicates that such factors as age, intelligence level, mental health history and severity of diagnosis, history of remedial education, and prior arrest or justice AB 2695 Page 11 system history are relevant in determining a minor's trial competency (internal citation omitted.) One researcher found that 30 percent of the 11 to 13 year olds, and 19 percent of the 14 and 15 year olds, performed at the level of mentally ill adults who have been found incompetent to stand trial in matters of understanding and reason" (internal citation omitted.) 4)Argument in Support: According to The Judicial Council, "AB 2695 is the result of a long stakeholder process that brought judges, district attorneys, public defenders, and other stakeholders to the table. Statewide best practices, subject matter experts, recent state Supreme court cases, and stakeholder goals were all considered in reaching the good compromise measure before you. "AB 2695 will create consistency statewide in conducting competency hearings in delinquency cases, while still allowing counties to pursue diversion programs that have been effective with their local populations. The bill will clarify procedures, firmly identify the burden of proof, and require courts to provide services to minors in an attempt to help restore and maintain competency. "For these reasons, the Judicial Council supports AB 2695, . . ." 5)Argument in Opposition: According to The California Public Defenders Association, ". . . First, recently the California Supreme Court decided in In re R.V. (2015) 61 Cal.4th 181, that notwithstanding the absence of the presumption of competency or specifically stating who has the burden to establish incompetency in the current version of Welfare and Institutions Code section 709, minors are presumed competent in juvenile delinquency proceedings and carry the burden to prove otherwise. However, the high court only found this to be necessarily true regarding minors age 14 or older. With respect to minors under the age of 14, the court observed that, "any possible interplay between the presumption of competency and the presumption of incapacity is limited to cases involving minors under the age of 14 years. In such cases, the presumption of competency arises only if the minor AB 2695 Page 12 is subject to adjudication under the juvenile law, that is, only after the prosecution has overcome the presumption of incapacity with clear and convincing proof that the minor knew the wrongfulness of his or her conduct. The presumption of competency presents no inconsistency with a presumption of incapacity that has been rebutted." (In re R.V., supra, 61 Cal.4th, at pp. 197-198.) Stated simply, prior to presuming children under the age of 14 are competent to proceed in juvenile delinquency proceedings, the burden is on the prosecutor to prove by clear and convincing evidence that the minor knew the wrongfulness of his or her conduct, making the minor subject to adjudication under juvenile law in the first instance. AB 2695 as currently configured would be inconsistent with current California law and the California Supreme Court's interpretation of the interplay between juvenile adjudicative competency and the presumption of incapacity of children under the age of 14. "CPDA further opposes AB 2695's provisions that gives the juvenile court authorization to refer minors for services after the court's jurisdiction has been terminated due to the substantial likelihood the minor will not attain competency in a reasonable amount of time. Although on its face this appears to be a lofty goal, i.e., to refer minors for services that the minor may appear to need. However, the problem with this provision is its lack of understanding of the nature of the problem of incompetency. One of the reasons these children will have been found to be incompetent in the first instance is because they lack a rational understanding and appreciation for the nature of the proceedings against them. The goal of being referred to services is having the ability, capacity and appreciation of how the services apply to the alleged offender and how the alleged offender can utilize such services going forward. Moreover, many of these children would not have been legally responsible for the alleged conduct, and will be unable to be vindicated as a result of their inability to assist counsel in a meaningful way, or due to their inability to understand and appreciate the nature of the proceedings against them. Lastly, to what extent would the court be making the referrals is problematic. Would the referrals be made as orders of the court, or suggestions; and to what extent could the minor be held responsible if he or AB 2695 Page 13 she, or his or her family did not participate in the referred services? AB 2695 in its current configuration leaves these and many other questions unanswered. "Finally, CPDA opposed AB 2695's provision that would require each county to develop a protocol describing the competency process and program for the county to ensure minors that are found incompetent receive appropriate remediation services. The problem with this provision is it will lead to inconsistency throughout the state. It is one thing to have protocols that provide for time, place and manner of competency proceedings within a given county, but many of these protocols will also call for how long a child can the incarcerated pending competency proceedings; how long a case can be suspended before a child can bring a motion to dismiss; what types of information can be presented in motions to dismiss; etc. California should have statewide timelines regarding the length of detention for children pending competency proceedings, especially in light of the limited qualified evaluators available to perform competency evaluations on children and the limited services children receive pending competency evaluations and proceedings while in custody. We should also have statewide procedures rather than individual county protocols because of the potential for local courts to refuse to follow its own county protocol, which was the case that arose recently in In re Albert C., Second District Court of Appeal Case No. B256480, Los Angeles County Superior Court No. MJ21492, review granted 02/24/16 by the California Supreme Court, Case No. S231315. "Certainly Welfare and Institutions Code section 709 in its current configuration leaves much to be desired with respect to policies and procedures regarding juvenile adjudicative competency. However, AB 2695, as currently proposed, fails to improve upon current law and in many respects creates an even more problematic process regarding children whose competency has been called into question in juvenile delinquency proceedings." 6)Related Legislation: a) AB 1962 (Dodd), requires the State Department of State AB 2695 Page 14 Hospitals, to establish guidelines for minimum education and training standards for a psychiatrist or licensed psychologist to be considered for appointment by the court to conduct adult mental competency evaluations. AB 1962 is pending in the Assembly Appropriations Committee. 7)Prior Legislation: a) SB 368 (Liu), Chapter 471, Statutes of 2011, requires that the court appoint an expert, as specified, to evaluate whether the minor suffers from a developmental disability. Requires the court to appoint the director of a regional center for developmentally disabled individuals, or his or her designee, to evaluate the minor if the expert believes the minor is developmentally disabled. b) AB 2212 (Fuentes), Chapter 671, Statutes of 2010, provides 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. Requires proceedings to be suspended if the court finds substantial evidence raises a doubt as to the minor's competency. REGISTERED SUPPORT / OPPOSITION: Support Judicial Council of California Opposition California Attorneys for Criminal Justice California Public Defenders Association Pacific Juvenile Defender Center Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 AB 2695 Page 15