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