BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2695


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          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. 








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          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  








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            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.









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          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.








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          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. &  








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            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.  








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            & 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).)








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          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  








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            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  








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            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  








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            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  








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            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  








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            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  








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               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










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