BILL NUMBER: AB 2695 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 19, 2016
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 amended, 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 Judicial Council to adopt a rule of court
relating to the qualifications of those experts, 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 a presumption of competency, unless it is proven
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, competency within a reasonable
period of time, 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
Notwithstanding these provisions, the bill would prohibit remediation
services from exceeding certain time periods, as specified.
By imposing additional duties on local officials,
the this 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) (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 Council, in
conjunction with groups or individuals representing judges, defense
counsel, district attorneys, counties, advocates for people with
developmental and mental disabilities, state psychologists and
psychiatrists, professional associations and accredited bodies for
psychologists and psychiatrists, and other interested stakeholders,
shall adopt a rule of court identifying the training and
experience needed for an expert to be competent in forensic
evaluations of juveniles, and juveniles. The
Judicial Council 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.
(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.
(8) An expert's opinion that a minor is developmentally disabled
does not supersede an independent determination by the regional
center regarding the minor's eligibility for services under the
Lanterman Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500)).
(9) Nothing in this section shall be interpreted to authorize or
require either of the following:
(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)).
(B) Determinations regarding the competency of a 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. It shall be presumed that the
minor is mentally competent, unless it is proven by a preponderance
of the evidence that the minor is mentally 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, remediated
within a reasonable period of time, the court shall order the
minor to return to the remediation program.
(4) If the court finds that the minor will not achieve
competency, competency within a reasonable period of
time, 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.
(5) In no case shall remediation extend beyond two years, or
a period of time equal to the maximum term of detention for the most
serious charge on the petition, whichever is shorter, on a petition
that contains a felony offense. In no case shall remediation extend
beyond one year, or a period of time equal to the maximum term of
detention provided by law for the most serious offense, whichever is
shorter, on a petition that contains only misdemeanor offenses.
(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.