BILL ANALYSIS
AB 2212
Page 1
Date of Hearing: April 13, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2212 (Fuentes) - As Amended: April 8, 2010
SUMMARY : Provides that a juvenile court shall declare a doubt
as to a minor's competency and suspend criminal proceedings if
during a juvenile criminal proceeding a doubt is expressed as to
the minor's sufficient, present ability to consult with his or
her lawyer with a reasonable degree of rational understanding,
and a rational as well as factual understanding of the
proceedings. Specifically, this bill :
1)Requires the court, upon declaration of a doubt as to the
minor's competency, to order that the question of the minor's
competence be determined at a hearing.
2)Mandates the court to appoint an expert in the field of
juvenile adjudicative competency to evaluate whether the minor
suffers from a mental disorder, developmental disability, or
developmental immaturity and, if so, whether the condition or
conditions impair the minor's competency.
3)States that the appointed expert shall have expertise in child
and adolescence development and training in the forensic
evaluation of juveniles, and shall be familiar with competency
standards and accepted criteria used in evaluating competence.
The Judicial Council shall develop and adopt rules for the
implementation of these requirements.
4)Provides that if the minor is found to be incompetent by a
preponderance of 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 that
capacity in the foreseeable future or the court no longer
retains jurisdiction.
5)States the period of time during which proceedings are
suspended shall not exceed six months. During this time, the
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following motions and hearings may be heard and ruled upon:
motion to dismiss, motion by the defense regarding a change in
the placement of the minor, a detention hearing, or a
demurrer.
EXISTING LAW :
1)Prohibits a person from being tried or adjudged or punished
while that person is mentally incompetent. A defendant is
mentally incompetent for purposes of this chapter if, as a
result of mental disorder or developmental disability, the
defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense
in a rational manner. [Penal Code Section 1367(a).]
2)Provides that if, during the pendency of an action and prior
to judgment, a doubt arises in the mind of the judge as to the
mental competence of the 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. If the defendant is not
represented by counsel, the court shall appoint counsel. At
the request of the defendant or his or her counsel or upon its
own motion, the court shall recess the proceedings for as long
as may be reasonably necessary to permit counsel to confer
with the defendant and to form an opinion as to the mental
competence of the defendant at that point in time. [Penal
Code Section 1368(a).]
3)States if counsel informs the court that he or she believes
the 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 which is held
pursuant to existing law. If counsel informs the court that
he or she believes the defendant is mentally competent, the
court may nevertheless order a hearing. Any hearing shall be
held in the superior court. [Penal Code Section 1368(b).]
4)Provides that except as provided in existing law, when an
order for a hearing into the present mental competence of the
defendant has been issued, all proceedings in the criminal
prosecution shall be suspended until the question of the
present mental competence of the defendant has been
determined. If a jury has been impaneled and sworn to try the
defendant, the jury shall be discharged only if it appears to
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the court that undue hardship to the jurors would result if
the jury is retained on call. If the defendant is declared
mentally incompetent, the jury shall be discharged. [Penal
Code Section 1368(c).]
5)States that if the action is on a complaint charging a felony,
proceedings to determine mental competence shall be held prior
to the filing of an information unless the counsel for the
defendant requests a preliminary examination under the
provisions of existing law. At such preliminary examination,
counsel for the defendant may: demur, move to dismiss the
complaint on the ground that there is not reasonable cause to
believe that a felony has been committed and that the
defendant is guilty thereof, or make a motion to suppress
evidence. [Penal Code Section 1368(d).]
6)States that if the professional person in charge of the
facility finds that the person is mentally retarded, the
juvenile court may direct the filing in any other court of a
petition for the commitment of a minor as a mentally retarded
person to the State Department of Developmental Services for
placement in a state hospital. In such case, the juvenile
court shall transmit to the court in which the petition is
filed a copy of the report of the professional person in
charge of the facility in which the minor was placed for
observation. The court in which the petition for commitment
is filed may accept the report of the professional person in
lieu of the appointment, or subpoenaing, and testimony of
other expert witnesses appointed by the court, if the laws
applicable to such commitment proceedings provide for the
appointment by court of medical or other expert witnesses or
may consider the report as evidence in addition to the
testimony of medical or other expert witnesses. If the
professional person in charge of the facility for 72-hour
evaluation and treatment reports to the juvenile court that
the minor is not affected with any mental disorder requiring
intensive treatment or mental retardation, the professional
person in charge of the facility shall return the minor to the
juvenile court on or before the expiration of the 72-hour
period and the court shall proceed with the case in accordance
with the Juvenile Court Law. Any expenditure for the
evaluation or intensive treatment of a minor under this
section shall be considered an expenditure made under existing
law and shall be reimbursed by the state as are other local
expenditures pursuant to that part. The jurisdiction of the
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juvenile court over the minor shall be suspended during such
time as the minor is subject to the jurisdiction of the court
in which the petition for post-certification treatment of an
imminently dangerous person or the petition for commitment of
a mentally retarded person is filed or under remand for 90
days for intensive treatment or commitment ordered by such
court. [Welfare and Institutions Code (WIC) Section 6551.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "At the heart of
any criminal proceeding is the right of a criminal defendant
to fully and effectively participate in his or her own
defense. The U.S. Supreme Court in Drope vs. Missouri,
quoting Blackstone wrote, 'One who became "mad" after the
commission of an offense should not be arraigned for it
"because he is not able to plead to it with that advice and
caution that he ought." Similarly, if he became "mad" after
pleading, he should not be tried, "for how can he make his
defense?" This basic tenant of criminal law also applies to
juvenile defendants.' [In Re James H. (1978) 77 Cal.App.3rd
169.] Despite the Penal Code procedures for determining
competency in adult proceedings, a determination of juvenile
competency lives only in case law and the Rules of Court. The
absence of statutory authority for deciding juvenile
competency creates lack of certainty and disparate application
of existing case law.
"Juvenile adjudicative competency is governed by a combination
of California statute as it relates to adults, juvenile rules
of court, and controlling case law related to both minors and
adults. Legislative action is necessary to articulate the law
in a manner that provides the juvenile court with the
appropriate guidance, mandate and uniformity to ensure due
process of law.
"While case law suggest that courts may rely on adult competency
provisions in the absence of a juvenile statute on competency
to stand trial, adult competency statutes, do not address the
nuanced application of 'developmental immaturity' outlined in
case law relevant to determination of competency in juveniles.
Developmental immaturity simply means the minor is too young
to understand the proceedings or effectively assist counsel.
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Moreover, evaluation of children requires a professional
expertise on child development, use of assessment instruments
unique to evaluations of children in order to identify a
mental disorder or developmental disability. For obvious
reasons, the adult statutes fail to address such standard of
practice for juveniles. Codification of a juvenile statute
for competency to stand trial is necessary to address a void
in the statue that unambiguously provides guidance on the rule
of law for competency in delinquency proceedings.
2)Constitutional Standards for Competency : The Fifth and
Fourteenth Amendments to the U.S. Constitution require a
defendant in a criminal case receive due process of law.
[U.S. Const. Amend. V, XIV; Cal. Const. Art. I, Section 7.]
"It has long been accepted that a person whose mental
condition is such that he lacks the capacity to understand the
nature and object of the proceedings against him, to consult
with counsel, and to assist in preparing his defense may not
be subjected to a trial. [Drope vs. Missouri (1975) 420 U.S.
162, 172.]
The clearest statement of the constitutional standard applied in
competency cases is expressed in Dusky vs. United States. The
Court stated, "We also agree with the suggestion of the
Solicitor General that it is not for the district judge to
find that 'the defendant [is] oriented to time and place and
[has] some recollection of events,' but that the 'test must be
whether he has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding --
and whether he has a rational as well as factual understanding
of the proceedings against him.' " [Dusky vs. U.S. (1960) 362
U.S. at 402.]
The California Court of Appeals applied this accepted maxim to
juvenile defendants in light of his or her right to effective
counsel in In Re James H. The court held:
"Due process demands that a person constitutionally entitled to
the right to effective counsel be afforded a hearing as to his
competency to cooperate with that counsel. When facts giving
rise to a doubt regarding a defendant's present sanity become
known to the trial judge, due process requires that the court
on its own motion, suspend proceedings in the case until the
question is determined in a sanity hearing." [In re James H.
(1978) 77 Cal.App.3rd 169, 175.]
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"The criminal trial of an incompetent defendant violates the due
process clause of the state and federal constitutions.
Because this principle is fundamental to the adversary system
of justice, failure to employ procedures to protect against
the trial of an incompetent defendant is a deprivation of due
process. Under the Dusky v. United States standard for
determining a defendant's competency to stand trial, the
inquiry is whether the defendant has sufficient present
ability to consult with his or her lawyer with a reasonable
degree of rational understanding - and whether he or she has a
rational as well as factual understanding of the proceedings
against him or her. The rights of due process have been
extended to juvenile delinquency proceedings, including the
right to the effective assistance of counsel." [In Re Timothy
J (hereinafter Timothy J) (2007) 150 Cal.App. 4th 847, 857.]
The California Court of Appeals in Timothy J makes clear that
minor's competency to stand trial may manifest itself in ways
not typical in adult cases.
"While many factors affect a minor's competency to stand trial,
the younger the juvenile defendant, the less likely he or she
will be able to manifest the type of cognitive understanding
sufficient to satisfy the requirements of the Dusky vs. United
States standard.
"For purposes of determining competency to stand trial, there is
no significant difference between an incompetent adult who
functions mentally at the level of a ten- or 11-year-old due
to a developmental disability and that of a normal 11-year-old
whose mental development and capacity is likewise not equal to
that of a normal adult. Under either condition or state, the
test is whether he or she has sufficient present ability to
consult with his or her lawyer with a reasonable degree of
rational understanding - and whether he or she has a rational
as well as factual understanding of the proceedings against
him or her. However, as has been observed in the context of a
child's competency to testify, there is no precise age which
determines the question of competency. Because it is affected
by many factors, the same may also be said in determining
trial competency. Thus, it has not been held that age alone
may be the basis for a finding of incompetency." (Timothy J.
at 861.)
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The language of this bill appears to be identical to the
constitutional requirements for determining a minor's
competency to stand trial. [James H. at 175; See also In re
Ricky S. (2008) 166 Cal.App. 4th 232 (holding a minor must
have a present ability to reasonably and factually understand
the proceedings, not just become competent at some point in
the future); In Re Tyrone B. (2008) 164 Cal.App. 4th 227
(finding that a minor has a right to a competency
determination before a fitness hearing).]
3)Penal Code Section 26 : Criminal law provides that a person
must know and understand the wrongfulness of the act for which
he or she is charged. Penal Code Section 26 provides several
instances where a person may not be held responsible for his
or her conduct.
"All persons are capable of committing crimes except those
belonging to the following classes: children under the age of
14, in the absence of clear proof that at the time of
committing the act charged against them, they knew its
wrongfulness; persons who are mentally incapacitated; persons
who committed the act or made the omission charged under an
ignorance or mistake of fact, which disproves any criminal
intent; persons who committed the act charged without being
conscious thereof; persons who committed the act or made the
omission charged through misfortune or by accident, when it
appears that there was no evil design, intention, or culpable
negligence, or; persons (unless the crime be punishable with
death) who committed the act or made the omission charged
under threats or menaces sufficient to show that they had
reasonable cause to and did believe their lives would be
endangered if they refused." (Penal Code Section 26.)
Children under the age of 14 are presumed not to have the
requisite understanding to commit a criminal act. That
presumption may be rebutted by the prosecutor if there is
clear proof that at the time of the crime, the child knew of
its wrongfulness.
"California rebuttably presumes all minors under the age of 14
are incapable of committing a crime, but does not totally
exclude any child from criminal responsibility. Cal. Penal
Code Section 26 embodies a venerable truth, which is no less
true for its extreme age that a young child cannot be held to
the same standard of criminal responsibility as his more
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experienced elders. A juvenile court must therefore consider
a child's age, experience, and understanding in determining
whether he would be capable of committing conduct proscribed
by Welfare and Institutions Code Section 602." [In re Gladys
(1970) 1 Cal. 3rd 855, 864.]
However, Penal Code Section 26 is quite different than a finding
that a minor is not competent to stand trial. Penal Code
Section 26 acts as a defense to criminal responsibility
whereas a doubt as to competency is expressed before trial.
The Timothy J. Court explained:
"Penal Code Section 26 provides that all persons are capable of
committing crimes except children under the age of 14, in the
absence of clear proof that at the time of committing the act
charged against them, they knew its wrongfulness. This
section states a presumption that a minor under the age of 14
is incapable of committing a crime. The People have the
burden of establishing by clear proof that a minor under the
age of 14, appreciated the wrongfulness of his or her criminal
act as demonstrated by his or her age, experience, conduct,
and knowledge. By contrast, the inquiry under former Cal
Rules of Court 1498(d) [related to juvenile competency], is
made before trial and the question is whether the minor is
capable of understanding the proceedings and of cooperating
with counsel. Those two inquiries are different. While some
of the same factors may be relevant to both, the purpose and
focuses of the two inquiries are different as are the time and
procedures for determining them." (Timothy J. at 862.)
4)Juvenile Culpability : The creation of the modern juvenile
court over 100 years ago was rooted in the idea that
adolescents, who are not fully developed or mature, are less
culpable than adults. As explained below, this viewpoint is
not completely compatible with the "adult crime for adult
time" philosophy that emerged in the 1990s.
"The common law assumed that adolescents are less culpable than
adults, and the juvenile court institutionalized this notion
both jurisprudentially and statutorily. That is, the juvenile
court offered a punishment discount for adolescents punished
as juveniles, relative to the punishment given to adults.
This discount is rooted in the belief that serious crimes
committed by young offenders may reflect developmental
deficiencies in autonomy and social judgment, suggesting a
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reduction in their culpability and, in turn, their punishment
liability . . . .
"These developments reflect the presumption in modern juvenile
justice law that those who commit crimes and are remanded to
the criminal court, or even those who are charged with such
crimes, are fully culpable for their acts. This legal
threshold clashes with emerging empirical evidence on the
immaturity of adolescents with respect to both their ability
to make informed and nuanced judgments about their behavior,
as well as their moral development. By ignoring these indicia
of reduced culpability, the new transfer or waiver policies
offend the common law doctrine of incapacity." [Ward,
Deterrence's Difficulty Magnified: The Importance of
Adolescent Development in Assessing the Deterrence Value of
Transferring Juveniles to Adult Court (hereinafter Ward),
(2003) 7 UC Davis Juvenile Law & Policy 253, 257.]
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 Appeals
decision in Timothy J. 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
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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 [*861]
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
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.)
5)Lanterman-Petris-Short (LPS) Act and Juvenile Offenders : As
noted above, this bill codifies the constitutional
requirements for determining juvenile competency. However, it
begs the question: assuming a juvenile is found not competent
to stand trial, then what? If a juvenile offender is found
not competent and the court stays the criminal proceeding, it
is unclear what path the minor follows. Under existing law
related to adults, if the offender has not regained competence
after the statutory three years where the treating agency
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finds that there is no reason to believe the offender will
regain competence, the court may initiate conservatorship
proceedings. [In re Davis (1973) 8 Cal.3rd 798.] Pursuant to
the LPS Act, a civil commitment hearing may be held to hold
the defendant in a mental health facility until it is
determined he or she is no longer a threat to him or herself
or others. (WIC Section 50000 et seq.)
Existing law does state that "when a court, before or during the
hearing on a petition, is of the opinion that the minor is
mentally disordered or if the court is in doubt concerning the
mental health of any such person, the court may proceed as
provided in Section 6550 of the Welfare and Institutions Code
or Section 4011.6 of the Penal Code." WIC Section 6550
specifically provides that the juvenile must be a dependant or
come within the jurisdiction of the juvenile court. If the
court finds a doubt as to the minor's competence, it may order
the minor held for 72 hours for treatment and evaluation.
[WIC Section 6551; See also WIC Section 5150 et seq.
(authorizing a person to be held for up to 14 days where a
mental health professional authorizes intensive treatment and
evaluation); Penal Code Section 4011.6 (allows the juvenile
court to retain concurrent jurisdiction over the minor subject
to LPS).]
However, the juvenile court may not hold a minor indefinitely or
in a manner similar to an adult defendant. "In an adult
proceeding, a finding of present incompetence results in an
immediate suspension of the criminal proceedings and the next
issue is simply whether the defendant should be confined in a
state hospital or other facility or be placed on an outpatient
status (Cal Penal Code Section 1370(a)(1).) But a finding of
incompetence in a juvenile proceeding should not result in a
confinement order or its equivalent. In effect, a juvenile is
not committed as incompetent to proceed with (WIC Section 602)
proceedings, but on a wholly independent basis and after
wholly independent procedures." [In re Patrick H. (1997) 54
Cal. App. 4th 1346, 1359.]
6)Rules of Court : Although there is no statutory authority for
determining a minor's competency to stand trial, the
California Rules of Court do provide some guidance to judges
when a doubt is expressed.
Rule 5.645(a), amended most recently in January 2009 states, in
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relevant part:
"Doubt concerning the mental health of a child (citation
omitted): Whenever the court believes that the child who is
the subject of a petition filed under section 300, 601, or 602
is mentally disabled or may be mentally ill, the court may
stay the proceedings and order the child taken to a facility
designated by the court and approved by the State Department
of Mental Health as a facility for 72-hour treatment and
evaluation. The professional in charge of the facility must
submit a written evaluation of the child to the court.
"Doubt as to capacity to cooperate with counsel (internal
citation omitted): If the court finds that there is reason to
doubt that a child who is the subject of a petition filed
under section 601 or 602 is capable of understanding the
proceedings or of cooperating with the child's attorney, the
court must stay the proceedings and conduct a hearing
regarding the child's competence.
"The court may appoint an expert to examine the child to
evaluate the child's capacity to understand the proceedings
and to cooperate with the attorney.
"If the court finds that the child is not capable of
understanding the proceedings or of cooperating with the
attorney, the court must proceed under section 6550 and
(a)-(c) of this rule.
"If the court finds that the child is capable of understanding
the proceedings and of cooperating with the attorney, the
court must proceed with the case. [Cal. Rules of Court
5.645(c).] Given there are several provisions of law related
to adult competency to stand trial, it seems to make sense
that juvenile competency procedures out to be codified as
well."
7)Arguments in Support :
a) According to the County of Sacramento, Office of the
Public Defender , "The Sacramento County Public Defenders
Office has been at the forefront of juvenile adjudicative
competency litigation since 2006, litigating cases from the
juvenile delinquency court all the way to the California
Supreme Court. Our office was the counsel of record in
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Timothy J and Dante H. v. Superior Court (Sacramento)
(2007) 150 Cal.App.4th 847, that judicially mandated that
developmental immaturity was a condition that could cause a
child to be found not competent to stand trial, and that
the standard for juvenile competency to stand trial was not
different than the adult competency standard.
"In 2008, the Sacramento County Public Defender's Officer was
also counsel of record in another landmark juvenile
delinquency competency case, Tyrone B. v. Superior Court
(Sacramento) (2008) 164 Cal.App.4th 227, which judicially
mandated that a person in juvenile delinquency court must
be competent at every stage of the proceedings at which
assistance of counsel is necessary, and that the
discretionary language of California Rules of Court rule
5.645 that says the court may appoint an expert when trying
to determine competency of a child really means must
appoint an expert to satisfy due process requirements.
"In two other Sacramento County cases the court held that a
child had to be presently competent to stand trial and that
the question is not can the minor become competent in the
future with assistance, but whether he is presently
competent to go forward. (See In re Ricky S. (2008) 166
Cal.App.4th 232.) And most recently, the Court of Appeal
ruled that when there is evidence that a child may not be
competent to stand trial because the child is
developmentally delayed (mentally retarded), the court must
appoint the Regional Center pursuant to Penal Code section
1369 to do the competency evaluation. (See In re L.B.
(2010) 182 Cal.App.4th 1367.)
"Prior to the Timothy J. case cited above, there had not been
a published competency decision by a California court for
almost 30 years. Our understanding of how children think,
perceive situations, and process information has increased
dramatically. Moreover, the psychological, psychiatric,
and social science literature in the area of child
development, child psychology and child psychiatry has
vastly increased. And what we know today about the child
and adolescent brain is far beyond where we were 30 years
ago.
"However, with all we know and with all the litigation in the
area of juvenile adjudicative competency, as practitioners
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we are left with only a rule of court to guide us. A rule
of court that does not necessarily answer all of the
concerns and observations made by our Court of Appeal.
Moreover, on at least two separate occasions, when the
Legislature has attempted to pass a bill on juvenile
competency, they have been defeated. (AB 2019 in 2004 and
SB 570 in 2005 which became something other than a bill on
competency.) California needs to have a public policy
statement from the Legislature to address this very
important constitutional concern. Children brought to
juvenile delinquency court have a constitutional right to
due process, but they must be competent to satisfy
constitutional due process. The courts have spoken. The
rules of court are inadequate. AB 2212 is the right piece
of legislation to address this pressing need and it is the
right time for it to pass.
"With the passage of AB 2212, the state could save countless
resources in avoiding further unnecessary litigation in
this area. Countless contested competency cases are being
litigated in juvenile court everyday, draining valuable
resources. Cases are being litigated up and down the
appellate court ladder attempting to get guidance in this
vague area of the law. AB 2212 would give juvenile
delinquency courts, minors' attorneys, prosecutors, and
other juvenile justice partners clear standards, direction
and guidance in this area of law, as is the case regarding
competency to stand trial in the criminal court. (See
Penal Code sections 1367 et seq.) Most important, however,
the passage of AB 2212 will help insure the constitutional
rights of children accused of crimes are not forfeited and
add credibility, dignity and respect to our juvenile
justice system.
b) According to the California Public Defenders
Association , "This bill seeks to establish and clarify
protocols which must be followed in juvenile court when
there is a doubt as to whether a minor defendant is
competent to be prosecuted in juvenile court.
Specifically, the statute will clarify the procedure to be
followed in juvenile court when there is reason to believe
that the youth has sufficient present ability to rationally
and factually understand the nature of the proceedings
against him or her, and assist his or her attorney in his
or her defense. The bill adds section 709 to the Welfare
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and Institutions Code and is consistent with Timothy J. v.
Superior Court (2007) 150 Cal.App.4th 847, Tyrone B. v.
Superior Court (2008) 164 Cal.App.4th 227, and, In re Ricky
S. (2008) 166 Cal.App.4th 232.
"California juvenile courts, practitioners, and interested
stakeholders agree that there is vast confusion in this
area of law. (See Incompetent Youth in California Juvenile
Justice, Burrell, Kendrick and Blalock, 2008 Stanford Law
and Policy Review, Vol. 19.) The lack of clarification has
resulted in serious problems with mentally ill or
developmentally disabled youth, who would be far better
served in systems other than the juvenile justice system,
being detained for lengthy periods of time-some as long as
several years-in secure confinement facilities that are not
designed for and are inappropriate for addressing these
youth's mental health needs. Moreover, youth who may never
regain competency-particularly an issue for cognitively
impaired or developmentally disabled youth-- face years of
confinement without any determination that there is a
reasonable likelihood that they will ever regain
competency.
"Of course, not every disabled or immature youth is
considered incompetent. To make that determination, the
courts must rely on appointed experts. A significant
improvement included in this bill is the requirement that
the court appoint an expert in the field of juvenile
adjudicative competency to evaluate the minor. This
requirement is critical because special training in
adolescent psychology and adolescent competency is
necessary to render an accurate evaluation of juveniles.
"This bill will also clarify for the courts that certain
limited proceedings may occur once a youth has been found
incompetent and proceedings have been suspended. For
example, if a suitable outpatient facility is found for a
currently detained youth, the court may want to consider a
change of placement. This clarification will also fill the
current gap which has led to confusion and inconsistent
practices as a result thereof.
"We have requested two clarifying amendments of the author,
and look forward to continuing to work with him on this
important measure. Those amendments are:
AB 2212
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(1) On page 2, line 6, the word "consult" should be replaced
with the word "cooperate." (2) On page 2, line 4, the
phrase "a doubt is expressed" should be stricken and
replaced with the phrase "a doubt arises in the mind of the
judge."
"CPDA believes that the clarifying changes in AB 2212 will
lead to a significant improvement in the courts' ability to
make critical determinations of competency, and will
decrease the unnecessary and inhumane long term detention
of disabled or developmentally immature youth.
c) According to the Youth Law Center , "This bill would
provide statutory definitions for juvenile incompetence to
stand trial, appointment of experts, and the threshold
showing needed to trigger competence proceedings. The
Youth Law Center is a national public interest law firm
that works to protect young people in the child welfare and
juvenile justice systems. We have worked specifically on
juvenile competence for several years, and wrote
"Incompetence in California Juvenile Justice," 19 Stanford
Law and Policy Review (2008), pages 198-25-. We have also
trained widely on how to recognize and deal with juvenile
competence and have developed a protocol for courts to use
in dealing with cases involving these issues.
"In the course of our work on juvenile competence, we have
spoken with hundreds of probation officers, juvenile
defense counsel, judges, prosecutors, clinicians and other
juvenile system professionals. Across the board they have
voiced the need for statutory guidance on the handling of
juvenile competence cases. While the adult criminal system
has a comprehensive statutory system governing every aspect
of adult competence is scattered about in case law and a
single, extremely confusing court rule. As a result,
children with cognitive limitations or mental illness often
languish in custody for months, as the system tried to
figure out how to handle their cases.
"AB. 2212 will not resolve all of the confusion or address
every aspect of juvenile competence cases. It will codify
the case law to provide a statutory definition of juvenile
competence that encompasses the constitutional standard in
Dusky v. United States (1960) 362 U.S 204, and the
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Page 17
developmental immaturity as a cause of competence, as
recognized in Timothy J. v. Superior Court (2007) 150 Cal.
App. 4th 847, 857. It provides experiential and training
requirements for experts in juvenile competence cases."
REGISTERED SUPPORT / OPPOSITION :
Support
County of Sacramento, Office of the Public Defender
California Public Defenders Association
Youth Law Center
Opposition
None
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744