BILL NUMBER: AB 2695 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Obernolte
FEBRUARY 19, 2016
An act to amend Section 709 of the Welfare and Institutions Code,
relating to juveniles.
LEGISLATIVE COUNSEL'S DIGEST
AB 2695, as introduced, Obernolte. Juvenile proceedings:
competency.
Existing law authorizes, during the pendency of any juvenile
proceeding, the minor's counsel or the court to express a doubt as to
the minor's competency. Existing law requires proceedings to be
suspended if the court finds substantial evidence raises a doubt as
to the minor's competency. Existing law requires the court to appoint
an expert, as specified, to evaluate whether the minor suffers from
a mental disorder, developmental disability, developmental
immaturity, or other condition and, if so, whether the condition or
conditions impair the minor's competency.
This bill would revise and recast these provisions to, among other
things, expand upon the duties imposed upon the expert during his or
her evaluation of a minor whose competency is in doubt, as
specified. The bill would authorize the district attorney or minor's
counsel to retain or seek the appointment of additional qualified
experts with regard to determining competency, as specified. The bill
would require the question of the minor's competency to be
determined at an evidentiary hearing, except as specified, and places
the burden on the minor to establish by a preponderance of the
evidence that he or she is incompetent. The bill would require the
court, upon a finding of incompetency, to refer the minor to services
designed to help the minor attain competency. If the court finds
that the minor will not achieve competency, the bill would require
the court to dismiss the petition. The bill would authorize the court
to invite specified persons and agencies to discuss any services
that may be available to the minor after the court's jurisdiction is
terminated, and would require the court to make certain referrals for
the minor. The bill would require, among others, the presiding judge
of a juvenile court, the probation department, and the county mental
health department to develop a written protocol describing the
competency process and a program to ensure that minors who are found
incompetent receive appropriate remediation services. By imposing
additional duties on local officials, the bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 709 of the Welfare and Institutions Code is
amended to read:
709. (a) During the pendency of any juvenile proceeding, the
minor's counsel or the court may express a doubt as to the minor's
competency. 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. If
the court finds substantial evidence raises a doubt as to the minor's
competency, the proceedings shall be suspended.
(b) Upon suspension of proceedings, the court shall order that the
question of the minor's competence be determined at a hearing. The
court shall 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. The expert shall 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. The Judicial Council shall develop and adopt rules for
the implementation of these requirements.
(c) 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. During this time, the court may make orders that it
deems appropriate for services, subject to subdivision (h), 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 the motions. These motions include, but are not
limited to, the following:
(1) Motions to dismiss.
(2) Motions by the defense regarding a change in the placement of
the minor.
(3) Detention hearings.
(4) Demurrers.
(d) If the minor is found to be competent, the court may proceed
commensurate with the court's jurisdiction.
(e) This section applies to a minor who is alleged to come within
the jurisdiction of the court pursuant to Section 601 or 602.
709. (a) (1) Whenever the court has a doubt that
a minor who is subject to any juvenile proceedings is mentally
competent, the court shall suspend all proceedings and proceed
pursuant to this section.
(2) A minor is mentally incompetent for purposes of this section
if he or she is unable to understand the nature of the proceedings,
including his or her role in the proceedings, or unable to assist
counsel in conducting a defense in a rational manner, including a
lack of a rational and factual understanding of the nature of the
charges or proceedings. Incompetency may result from the presence of
any condition or conditions, including, but not limited to, mental
illness, mental disorder, developmental disability, or developmental
immaturity. Except as specifically provided otherwise, this section
applies to a minor who is alleged to come within the jurisdiction of
the court pursuant to Section 601 or 602.
(3) During the pendency of any juvenile proceeding, the court may
receive information from any source regarding the minor's ability to
understand the proceedings. The minor's counsel or the court may
express a doubt as to the minor's competency. The receipt of
information or the expression of doubt of the minor's counsel does
not automatically require the suspension of proceedings. If the court
has a doubt as to the minor's competency, the court shall suspend
the proceedings.
(b) (1) Unless the parties stipulate to a finding that the minor
lacks competency, or the parties are willing to submit on the issue
of the minor's lack of competency, the court shall appoint an expert
to evaluate the minor and determine whether the minor suffers from a
mental illness, mental disorder, developmental disability,
developmental immaturity, or other condition affecting competency
and, if so, whether the minor is competent.
(2) The expert shall have expertise in child and adolescent
development and forensic evaluation of juveniles for purposes of
adjudicating competency, shall be familiar with competency standards
and accepted criteria used in evaluating juvenile competency, and
shall have received training in conducting juvenile competency
evaluations.
(3) The expert shall personally interview the minor and review all
of the available records provided, including, but not limited to,
medical, education, special education, probation, child welfare,
mental health, regional center, and court records, and any other
relevant information that is available. The expert shall consult with
the minor's counsel and any other person who has provided
information to the court regarding the minor's lack of competency.
The expert shall gather a developmental history of the minor. If any
information is unavailable to the expert, he or she shall note in the
report the efforts to obtain that information. The expert shall
administer age-appropriate testing specific to the issue of
competency unless the facts of the particular case render testing
unnecessary or inappropriate. In a written report, the expert shall
opine whether the minor has the sufficient present ability to consult
with his or her counsel with a reasonable degree of rational
understanding and whether he or she has a rational and factual
understanding of the proceedings against him or her. The expert shall
also state the basis for these conclusions. If the expert concludes
that the minor lacks competency, the expert shall make
recommendations regarding the type of remediation services that would
be effective in assisting the minor in attaining competency, and, if
possible, the expert shall address the likelihood of the minor
attaining competency within a reasonable period of time.
(4) The Judicial Council shall 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.
(5) Statements made to the appointed expert during the minor's
competency evaluation, statements made by the minor to mental health
professionals during the remediation proceedings, and any fruits of
those statements shall not be used in any other hearing against the
minor in either juvenile or adult court.
(6) The district attorney or minor's counsel may retain or seek
the appointment of additional qualified experts who may testify
during the competency hearing. The expert's report and qualifications
shall be disclosed to the opposing party within a reasonable time
before, but no later than five court days before, the hearing. If
disclosure is not made in accordance with this paragraph, the expert
shall not be allowed to testify, and the expert's report shall not be
considered by the court unless the court finds good cause to
consider the expert's report and testimony. If, after disclosure of
the report, the opposing party requests a continuance in order to
further prepare for the hearing and shows good cause for the
continuance, the court shall grant a continuance for a reasonable
period of time.
(f)
(7) If the expert believes the minor is developmentally
disabled, the court shall appoint the director of a regional center
for developmentally disabled individuals described in Article 1
(commencing with Section 4620) of Chapter 5 of Division 4.5, or his
or her designee, to evaluate the minor. The director of the regional
center, or his or her designee, shall determine whether the minor is
eligible for services under the Lanterman Developmental Disabilities
Services Act (Division 4.5 (commencing with Section 4500)), and shall
provide the court with a written report informing the court of his
or her determination. The court's appointment of the director of the
regional center for determination of eligibility for services shall
not delay the court's proceedings for determination of competency.
(g)
(8) 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
regarding the minor's eligibility for services under the
Lanterman Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500)).
(h)
(9) Nothing in this section shall be interpreted to
authorize or require either of the following:
(1) The court to place
(A) Placement of a minor who is
incompetent in a developmental center or community facility operated
by the State Department of Developmental Services without a
determination by a regional center director, or his or her designee,
that the minor has a developmental disability and is eligible for
services under the Lanterman Developmental Disabilities Services Act
(Division 4.5 (commencing with Section 4500)).
(2) The director of the regional center, or his or her designee,
to make determinations
(B) D eterminations
regarding the competency of a minor. minor by
the director of the regional center or his or her designee.
(c) The question of the minor's competency shall be determined at
an evidentiary hearing unless there is a stipulation or submission by
the parties on the findings of the expert. The minor has the burden
of establishing by a preponderance of the evidence that he or she is
incompetent.
(d) If the court finds the minor to be competent, the court shall
reinstate proceedings and proceed commensurate with the court's
jurisdiction.
(e) If the court finds, by a preponderance of evidence, that the
minor is incompetent, all proceedings shall remain suspended for a
period of time that is no longer than reasonably necessary to
determine whether there is a substantial probability that the minor
will attain competency in the foreseeable future, or the court no
longer retains jurisdiction. During this time, the court may make
orders that it deems appropriate for services. Further, the court may
rule on motions that do not require the participation of the minor
in the preparation of the motions. These motions include, but are not
limited to, all of the following:
(1) Motions to dismiss.
(2) Motions regarding a change in the placement of the minor.
(3) Detention hearings.
(4) Demurrers.
(f) Upon a finding of incompetency, the court shall refer the
minor to services designed to help the minor attain competency.
Service providers and evaluators shall adhere to the standards stated
in this section and the California Rules of Court. Services shall be
provided in the least restrictive environment consistent with public
safety. Priority shall be given to minors in custody. Service
providers shall determine the likelihood of the minor attaining
competency within a reasonable period of time, and if the opinion is
that the minor will not attain competency within a reasonable period
of time, the minor shall be returned to court at the earliest
possible date. The court shall review remediation services at least
every 30 calendar days for minors in custody and every 45 calendar
days for minors out of custody.
(g) (1) Upon receipt of the recommendation by the remediation
program, the court shall hold an evidentiary hearing on whether the
minor is remediated or is able to be remediated unless the parties
stipulate to, or agree to the recommendation of, the remediation
program. If the recommendation is that the minor has attained
competency, and if the minor disputes that recommendation, the burden
is on the minor to prove by a preponderance of evidence that he or
she remains incompetent. If the recommendation is that the minor is
unable to be remediated and if the prosecutor disputes that
recommendation, the burden is on the prosecutor to prove by a
preponderance of evidence that the minor is remediable. If the
prosecution contests the evaluation of continued incompetence, the
minor shall be presumed incompetent and the prosecution shall have
the burden to prove by a preponderance of evidence that the minor is
competent. The provisions of subdivision (c) shall apply at this
stage of the proceedings.
(2) If the court finds that the minor has been remediated, the
court shall reinstate the proceedings.
(3) If the court finds that the minor has not yet been remediated,
but is likely to be remediated, the court shall order the minor to
return to the remediation program.
(4) If the court finds that the minor will not achieve competency,
the court shall dismiss the petition. The court may invite persons
and agencies with information about the minor, including, but not
limited to, the minor and his or her attorney, the probation
department, parents, guardians, or relative caregivers, mental health
treatment professionals, the public guardian, educational rights
holders, education providers, and social services agencies, to the
dismissal hearing to discuss any services that may be available to
the minor after jurisdiction is terminated. If appropriate, the court
shall refer the minor for evaluation pursuant to Article 6
(commencing with Section 5300) of Chapter 2 of Part 1 of Division 5
or Article 3 (commencing with Section 6550) of Chapter 2 of Part 2 of
Division 6.
(h) The presiding judge of the juvenile court, the probation
department, the county mental health department, the public defender
and other entity that provides representation for minors, the
district attorney, the regional center, if appropriate, and any other
participants that the presiding judge shall designate, shall develop
a written protocol describing the competency process and a program
to ensure that minors who are found incompetent receive appropriate
remediation services.
SEC. 2. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.