In re J.A.

In re J.A.











Filed 9/2/10 In re
J.A. CA3













NOT
TO BE PUBLISHED



California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.



IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)








>

In re J. A., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. J. A., Defendant and Appellant.	C058895 (Super.Ct.No. JV121557)

J.
A. (the minor) was charged with false
imprisonment and multiple counts of sexual
battery. After his attorney
expressed a doubt as to the minor’s competence to stand trial, a contested
hearing was held and the minor was found competent. The matter was then continued for a
settlement conference.

At the settlement conference, the parties submitted the matter
on the police reports and probation social study. The juvenile court sustained the felony
sexual battery charge, concluded that the evidence was sufficient to sustain
the other counts but dismissed them in the interest of justice, declared the
minor a ward of the juvenile court, and committed him to the custody of the
probation officer for Level A placement.


On
appeal, the minor contends the juvenile court’s orders must be reversed
because (1) the court did not appoint the director of the regional center for
the developmentally disabled to examine the minor pursuant to Penal Code
section 1369, and (2) the evidence was insufficient to support the finding that
the minor was competent to stand trial.

We shall affirm the juvenile court’s orders.

FACTS
AND PROCEDURAL BACKGROUND

In
August 2007, the minor, a 14-year-old student with a developmental
disability that placed his cognitive abilities at the level of an
average 9 year old, grabbed a female student in the junior high school
gymnasium, forced her beneath the bleachers, and groped her breasts beneath her
shirt and bra. He was arrested, booked
into juvenile hall, and charged with felony sexual battery and false imprisonment.

The
delinquency petition was later amended to allege two more counts of sexual
battery, charged as misdemeanors, perpetrated by the minor against two other
female students.

His attorney later expressed a doubt as to the minor’s competence
to stand trial and asked the court to “appoint a psychologist to evaluate him
for competency.” The court immediately
suspended the proceedings and, pursuant to section 705 of the Welfare and
Institutions Code and rule 5.645 of the California Rules of Court,
directed the probation department “to arrange for a psychological
evaluation to determine [the minor’s] ability to understand these proceedings
and to assist his attorney and whether he is competent to go forward.”

The minor was evaluated by Dr. Christopher Heard, a clinical
psychologist with substantial experience as a forensic psychologist. Dr. Heard concluded the minor was “competent
to stand trial in juvenile court.” As
Dr. Heard explained during his testimony at the competency hearing, the minor’s
intelligence test results “placed him in the mildly mentally retarded range,”
but he possessed the ability to understand the juvenile court proceedings, appreciated
the significance of his situation, and was capable of assisting his attorney in
presenting a defense. Dr. Heard so
opined after having a conversation with the minor about the roles of the
participants in a court proceeding (e.g., the minor’s attorney, the
prosecutor, and the judge), the different types of evidence that could be
introduced at trial, and the range of dispositions that were possible outcomes
of the delinquency proceeding. In
response to Dr. Heard’s questions, the minor provided “a basic
understanding” of the juvenile court process.
Dr. Heard testified that he provided the minor with additional
information about the process because few people understand their constitutional rights or criminal
procedure, so “the question of competence” turned not so much on whether
the minor presently understood the nuances of the juvenile justice system, but
whether he possessed the present ability to understand it, such that he would
be able to assist his attorney at trial.
Based on their conversation, Dr. Heard concluded that the minor
possessed such an ability and was competent to stand trial.

The
minor was also evaluated by Dr. John Shields, a clinical forensic
psychologist certified by the American Board of Forensic Psychology to
conduct competency evaluations. Dr.
Shields met with the minor on three separate occasions and conducted the
“standard evaluation specific to the issue of juvenile competency,” which
included a review of the minor’s history, a “structured interview designed
specifically for assessing juvenile competency-related issues,” and “a
standardized assessment of cognitive ability.”
Based on this evaluation, Dr. Shields concluded the minor did
not adequately understand the nature of the juvenile court proceedings and
could not adequately assist his attorney in a rational manner.

Shields’ assessment confirmed Dr. Heard’s conclusion that
the minor had a developmental disability that placed his cognitive
abilities at the level of an average 9 year old. This was also reflected by the minor’s
enrollment in special education classes and the fact he was previously
referred to Alta Regional
Center, which provides services for
individuals living with developmental disabilities.

Dr. Shields noted that, “from a fairly young age there were
indications of pretty significant behavior problems,” and the minor had a
dependency history including “more than a dozen placements over the past
several years,” each ending because of “aberrant and unmanageable behavior.” This unmanageable behavior was reflected in
the probation report Dr. Shields reviewed, which chronicled several misdemeanor
violations ranging from battery to vandalism.
Dr. Shields also noted the minor was “hospitalized
for approximately one month under [Welfare and Institutions Code
section] 5150 when he was about 10 years old.” And the minor had been diagnosed with
attention deficit hyperactivity disorder and oppositional/defiant
disorder, and had been prescribed several psychotropic drugs as a means of
managing anger issues.

Dr. Shields conducted the Juvenile Adjudicative Competence
Interview (JACI), a “structured interview for assessing a minor’s trial-related
abilities.” During this interview, he
asked the minor a series of questions covering the following topics: the nature and seriousness of the
charged offenses; the nature and purpose of a juvenile court trial;
possible pleas; plea agreements; possible penalties; the roles of the
prosecutor, defense attorney, probation officer, and judge; the importance of
assisting the defense attorney; and the minor’s recent participation in the
juvenile court proceedings. The results
of the interview were “kind of mixed.”
Dr. Shields explained that the minor’s answers to some of the
questions demonstrated “an adequate understanding of the concept posed to him,”
while some answers “did not,” and others revealed a “partially accurate
understanding” of the concept posed to the minor.

According
to Dr. Shields’ evaluation, the minor adequately understood the nature and
seriousness of the charged offenses, the roles of the prosecutor, defense
attorney, and probation officer, and the importance of assisting his
attorney. However, Dr. Shields noted the
minor’s “specific understanding of the [charges] isn’t entirely accurate”
because the minor described the charges as “kidnapping and sexual abuse” rather
than false imprisonment and sexual assault.


Dr.
Shields concluded that the minor possessed an impaired understanding of the
nature and purpose of a juvenile court trial, possible pleas, and plea
agreements. When asked about the purpose
of a juvenile court trial, the minor told Dr. Shields: “It’s to talk more about the case. The judge decides where he should send
me. He talks to my attorney and
[probation officer] about what should happen.”
According to Dr. Shields, the minor’s response was impaired because it
“jumps directly to dispositional considerations and skips over entirely that a
juvenile court trial is designed to make a determination about the truth
of the facts based on the evidence.”
When Dr. Shields followed up with a question about
“how discipline at home or school might differ from what goes on in a
juvenile court trial,” the minor responded:
“The only difference is I don’t go to court.” Dr. Shields concluded that this answer missed
“the all important nuances of the purpose of a juvenile court trial, which
is to hear and weigh evidence.”

Dr. Shields also concluded the minor possessed an impaired
understanding of possible pleas and plea agreements. When asked about his understanding of
possible pleas, the minor explained:
“If you pled guilty that means you did the charge, that you
actually did the thin[g] to the person.
Not guilty is saying you didn’t do it.”
According to Dr. Shields, this would have been a “generally
accurate response” had the minor been asked to distinguish between
a guilty and not guilty plea; but what he was attempting to elicit with
this question was a response not about possible pleas, but about “possible plea
agreements and how they work and what their purpose is.” When Dr. Shields followed up with a question
about whether a guilty person could plead not guilty, the minor answered: “If you plead guilty you get more time. It depends on how the judge takes it. The judge could look at all your past court
dates and think you did it. You can’t
plead not guilty [because] he had no evidence [t]hat I did it. He ha[d] no proof.” Dr. Shields testified that this answer
was “convoluted” and “infused with something that really doesn’t figure
into the process, which is the Court making a determination about the
facts of the specific allegation based on his past court dates.”

Dr.
Shields testified that, when the minor was specifically asked about his
understanding of a plea agreement, he responded: “It means the judge give[s]
you [an] ankle monitor and probation. I
could say I could deal with it; or 6 months probation.” According to Dr. Shields, this was
“a fairly concrete response” providing “some options that are available
for penalties,” but did not convey “the nuances of what a plea agreement
is and what its purpose might be or how there may be some mutual benefit to the
parties in the case of a plea agreement
being exercised.” When Dr. Shields
followed up by asking why a prosecutor might offer a lesser sentence in
exchange for a plea, or why turning down such a plea was like taking a
chance, the minor answered: “Well,
it’s like taking a chance. It’s
like saying I do it. It’s like pleading
not guilty.” According to Dr. Shields,
the minor seemed to be “trying to confabulate an answer. He doesn’t really know, but he’s trying to
use some terms that sound right.”

Dr. Shields opined that the minor’s understanding of the
concepts of possible penalties and role of the judge was partially
impaired. When asked what could happen
if the judge sustained the petition, the minor answered: “I could go to CYA, I could just keep
going to court, or I could go to prison.”[1] In Dr. Shields’ view, this reply created “the impression”
the minor “understands that if the court sustains a petition or there’s some
guilty finding, that there be some kind of penalty, some lockup sort of
consequences.” Dr. Shields
testified, however, that continuing to go to court is “not really a penalty for
a sustained petition” and going to prison is “clearly factually
inaccurate.” When Dr. Shields followed
up with a question about CYA, the minor provided a “generally accurate”
description. When the minor
was asked why he believed he could “just keep going to court,” he
responded that he had “gone to court many times and just thought that he would
just keep going to court.” Overall,
Dr. Shields concluded these responses indicated partial impairment, but
the minor “understood the relative severity of various penalties,” including
possible commitment to DJJ.

Dr.
Shields further testified that, when he asked about the role of the juvenile
court judge, the minor said: “The judge
is the person who thinks about what they should do; what you should get or not
get.” When asked whether the judge knew
whether he was guilty, the minor answered:
“No, he didn’t hear both sides of the story yet.” In Dr. Shields’ view, the first response was
only “partially correct” because it “doesn’t capture the role of the judge that
has to do with the actual conducting of the juvenile court trial,” but the
second response conveyed “an understanding of another of . . . the two most
important roles of the juvenile court judge,” the fact-finding role and
the dispositional role. However,
Dr. Shields concluded that the minor did not understand his right to
remain silent from the following exchange.
Dr. Shields asked: “If when you
went into court and the judge told you that you had to tell him the
truth about what you did, what would you do‌”
The minor answered: “I’d tell him the truth.”

Additionally,
aside from the JACI results, Dr. Shields noted two examples during the
evaluation where the minor “demonstrated extremely concrete thinking, and
impaired judgment.” The first occurred
when the minor explained that he believed he would be going home after his next
hearing because he told the juvenile hall staff to put a note in his file
“indicating that he was good and had been behaving and was suitable to go home
because he was being good.” According to
Dr. Shields, “this is a kind of wishful, kind of magical thinking that is much
more congruent with the cognitive status of a very young child as opposed to a
nearly 15-year-old boy.” The other
example occurred when the minor explained that he tried to kill himself in
juvenile hall by “flush[ing] himself down the toilet,” and that, if he did not
die, he might be able to successfully escape through the sewer system.

After hearing the testimony of both experts and the argument
of counsel, the juvenile court ruled the minor was competent to stand
trial.

The
court first explained that it was relying primarily on Dr. Shields’
evaluation, which was a more “in depth” interview than the one conducted by Dr.
Heard. The court concluded the minor’s
answers to Dr. Shields’ questions showed “a fairly sophisticated understanding
of what the charges are against him, what he’s facing, how the criminal justice
system works,” and that the minor “clearly understands the nature of these
proceedings.” The court explained, Dr.
Shields “repeatedly said something to the effect that: Well, the minor generally understands
and generally gave accurate responses. . . . But [Dr. Shields] kept saying [that the
minor] . . . missed the nuances of some of these concepts. And based upon that, he found the answer
wanting. [¶] And I’ve got to tell you, a lot of the adults I know would have
missed a number of those nuances. This
minor has, in my mind, an unusual ability to articulate the meaning of various
legal concepts. And I think Dr. Shields
was a bit unrealistic in what he was looking for this minor to say.” For example, far from viewing as impaired the
minor’s answer to a question about the plea agreement, the court characterized
it as “a hell of a response” because turning down a plea offer “is almost like
pleading not guilty.” The court
concluded the minor “understands quite a bit.”


The court also explained that, while it was initially concerned
about the minor’s ability to assist his attorney due to an inability to pay
attention during the proceedings, this concern was alleviated by the fact the
minor was “pretty attentive” during the competency hearing despite the fact the
testimony from the experts was not “exciting.”
The court also observed:
“[N]umber one, he’s been here and he’s remained quiet and composed
the entire time. I think he understands
what’s going on in here and that his role in this situation is not to jump up
and say things and basically just listen and just to pay attention. So he understands what’s going on in
here. [¶] Secondly, I also think though that if . . . we had a trial
going on involving the charges and the witnesses the [prosecutor] may call here
testifying, particularly the victim and others who were around when the
accident happened to have occurred, I think he would be attentive. I think he would have the ability to jump up
and tell [his attorney]: You know what,
that didn’t happen that way. Or he would
be able to say: No, that’s not what I
did. No, that’s not what I said.”

DISCUSSION

I

Subjecting
an incompetent minor to a juvenile delinquency trial is a violation of the
due process clauses of the state and federal Constitutions. (In re
Ricky S. (2008) 166 Cal.App.4th 232, 234.)


In determining whether
a minor is competent to stand trial,
“the inquiry is whether the [minor] ‘“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.”’
[Citation.]” ( >Timothy J. v. Superior Court (2007) 150
Cal.App.4th 847, 857, quoting Dusky v.
United States (1960) 362 U.S. 402 [4 L.Ed.2d 824].)

The
minor contends the juvenile court erred by failing to appoint the director of
the regional center for the developmentally disabled to examine him pursuant to
subdivision (a) of Penal Code section 1369, which sets forth a procedure in a
criminal case for a court to obtain expert opinions from “psychiatrists”
or “licensed psychologists” on whether a person charged with committing a
crime is mentally competent to “understand the nature of the criminal
proceedings” and “assist counsel in the conduct of a defense in a rational
manner.”

The
statute provides that, on the issue of mental competence to stand trial, the
court “shall appoint a psychiatrist or licensed psychologist, and any other
expert the court may deem appropriate, to examine the defendant,” and, “[i]f it
is suspected the defendant is developmentally disabled,” the court shall
also appoint the director of the regional center for the developmentally
disabled to examine the accused and provide the court with an expert
opinion as to whether the accused is competent to stand trial. (Pen. Code, § 1369, subd. (a).) A purpose of this requirement is to ensure
that a developmentally disabled person is evaluated by experts experienced in
that field and to thus enable the trier of fact to make an informed
determination of the person’s competence to stand trial. (People
v. Leonard (2007) 40 Cal.4th 1370, 1391.)

However,
a minor accused in a juvenile delinquency matter is not “a defendant,” and
the matter is not a criminal proceeding.
(Welf. & Inst. Code, § 602.)
Thus, Penal Code section 1369 does not apply.

Rather,
the issue of a minor’s competency to stand trial in a juvenile dependency
proceeding is governed by California Rule of Court, rule 5.645, which does not
require the appointment of the director of the regional center for the
developmentally disabled to examine a minor suspected of being
developmentally disabled.[2]

In
any event, even if an expert opinion from the director of a regional
center for the developmentally disabled as to whether a minor suspected of
being developmentally disabled is competent to stand trial were required, it
would be subject to the forfeiture doctrine if the accused fails to assert it
in the trial court. (See >In re Sheena K. (2007) 40 Cal.4th
875, 880-881 [a right, whether constitutional or statutory, may be forfeited by
the failure to assert the right in the tribunal with jurisdiction
to determine it; the purpose of this rule is to encourage parties to bring
error to the attention of the trial court so that they may be corrected]; >People v. Weaver (2001) 26 Cal.4th 876,
903-904.) As long as there is other
expert evidence to establish a developmentally disabled person is
competent to stand trial, the proceeding does not violate due process of
law. (See People v. Leonard, supra, 40 Cal.4th at pp. 1389 [trial
court’s failure to appoint the director of the regional center to examine
a developmentally disabled defendant does not necessarily require reversal],
1391 [rejecting claim that the failure to appoint the regional director
violated defendant’s “rights under the federal Constitution to due process and
a fair trial, as well as his Eighth Amendment right to a reliable guilt
and penalty proceeding”].)[3]

Here, it was evident to the parties, the juvenile court, and the
experts who testified at the competency hearing, that the minor is developmentally
disabled. By not objecting when the
juvenile court did not appoint the director of a regional center for the
developmentally disabled to weigh in on the issue of competency to stand trial,
the minor forfeited his right to complain on appeal about that omission.

Moreover, we conclude the minor was not harmed because this
is not a case where the developmental disability of the minor
was overlooked, such that the court could not make an informed
determination regarding competence to stand
trial. Indeed, the experts who
testified at the competency hearing considered the minor’s developmental
disability in reaching their expert opinions.
And the trial judge took into account the minor’s developmental disability
in finding that he was competent to stand trial. As we will explain in Part II, >post, there was ample evidence of such
competency from the minor’s responses to questions posed by the experts;
indeed, the evidence of competency to stand trial was so strong, we are
satisfied beyond a reasonable doubt that, had the court appointed the
regional director to opine on the issue, the result would have been
the same.

II

The
minor contends the “[e]vidence that [he] was incompetent
was overwhelming.” To the contrary,
the evidence plainly established his competence to stand trial.

The
minor was competent to stand trial in the dependency proceeding if he had a
sufficient present ability to understand the nature of the proceedings against
him and, in a rational way, to assist his counsel in the minor’s defense. (Timothy
J. v. Superior Court, supra, 150
Cal.App.4th at p. 857.) On review
of the juvenile court’s finding, we determine whether substantial evidence,
viewed in the light most favorable to the ruling, supports the court’s
finding. Evidence is substantial if it
is reasonable, credible, and of solid value. (Ibid.)

The experts agreed that the minor was developmentally
disabled. They also agreed that having
such a disability did not inexorably lead to the conclusion that the minor was
legally incompetent to stand trial. And,
although the juvenile court relied “primarily” on the “results of Dr.
Shields’ interview with the minor and the [minor’s] responses which Dr. Shields
very thoroughly documented,” the court was not required to accept Dr.
Shields’ ultimate conclusion as to competence.
(People v. Marshall (1997) 15
Cal.4th 1, 31.)

The
juvenile court found the minor’s responses to the experts’ questions showed his
understanding of the dependency proceedings, “how the . . . system works,” and the charges against
him, and also showed the minor had the ability to rationally assist his
counsel in a defense. Substantial
evidence supports the findings.

Dr.
Shields acknowledged that the minor adequately understood the nature and
seriousness of the charged offenses, and the roles of the prosecutor, defense
attorney, and probation officer. Dr.
Shields also opined that the minor understood the importance of assisting
his attorney; in the words of Dr. Shields, the minor had
“a general understanding” of “how he might be able to be useful to his own
attorney in terms of conveying information.”
Dr. Heard agreed, opining that the minor was able to “appreciat[e] the significance
of what [was] going on [in the delinquency proceeding]” and to “be
of assistance to [his] counsel.”

For
example, the minor seemed to understand the presumption of innocence and the
prosecutor’s burden of proof (when asked whether the judge knew he was guilty,
the minor responded, “No, he didn’t hear both sides of the story yet”). The minor understood the nature of a plea
(“If you pled guilty that means you did the charge, that you actually
did the thin[g] to the person. Not
guilty is saying you didn’t do it”).
The minor knew the consequence of rejecting the prosecutor’s offer for
a lesser sentence in return for an admission of guilt (“Well, it’s
like taking a chance. . . . It’s like
pleading not guilty”). The minor
identified one possible consequence of admitting guilt (“Well, it means
that the judge could give you [an] ankle monitor and probation”); and
Dr. Shields opined that the minor “understood the relative severity
of [other possible] penalties,” including commitment to DJJ. In addition, the minor had a rational
understanding of the roles of the judge, the minor’s attorney, and the
probation officer in a trial if the delinquency petition were sustained (“It’s
to talk more about the case. The judge
decides where he should send me. He
talks to my attorney and [probation officer] about what should happen”).

It is true that Dr. Shields opined the minor’s
answers failed to grasp some of the “nuances” of the expert’s questions. But the test is not whether the minor
had a sophisticated understanding of all the nuances (which the trial court
justifiably characterized as “unrealistic”); it is whether the minor’s
responses showed that he had a sufficient present ability
to understand the nature of the proceedings against him and, in a rational
way, to assist his counsel in the minor’s defense. They did in the trial court’s view, and
we agree with that assessment.

The
minor argues that the competency finding is flawed because of the experts’
purported “lack of familiarity [with] and failure to evaluate [him] for
developmental disability.” Yet there
is nothing in the record to support either claim. The experts were aware of the minor’s
developmental disability, they did not demonstrate any lack of familiarity with
developmental disability, and their evaluations explicitly addressed how the
minor’s developmental disability affected his competency to stand trial.

According
to the minor, the competency finding is flawed because the experts “did not
assess or distinguish the different mental illness/ developmental disability
bases for finding incompetence.”
However, that was unnecessary in this case because there was no
suggestion the minor was mentally ill; rather, the competency evaluation was
based on particular considerations stemming from the minor’s developmental
disability.

Asserting
that a person’s “adaptive functioning” is “an integral and particularized
component of determining mental retardation,” the minor claims the experts
did not assess his “adaptive functioning.”
By his “see” citation to Atkins v.
Virginia (2002) 536 U.S. 304, [153 L.Ed.2d 335], and
“American Association on Mental Retardation Manual,” the minor apparently
refers to an assessment of whether his “‘subaverage general intellectual
functioning’” was “‘accompanied by significant limitations in adaptive functioning
in at least two of the following skill areas: communication, self-care, home
living, social/interpersonal skills, use of community resources,
self-direction, functional academic skills, work, leisure, health, and safety”
(Atkins v. Virginia, supra, 536 U.S.
at p. 308, fn. 3 [153 L.Ed.2d at p. 342, fn. 3]). However, the experts did assess how the
minor’s developmental disability affected his functional ability to understand
the proceedings and rationally assist his counsel, and the minor does not explain
how assessment of the other skill areas may have altered the experts’
conclusions regarding the minor’s competency.
Thus, he has failed to demonstrate reversible error.

The
minor argues there was “no evidence to rebut Dr. Shields’ conclusion that [the
minor] could not think abstractly, could not entertain multiple possibilities,
multiple outcomes, or multiple meanings from one given idea.” As the trial court noted, however, that is an
unrealistic test of competence. Simply
stated, the minor’s competence to stand trial was demonstrated by
his responses to questions posed by Dr. Shields and Dr. Heard, and the
minor’s failure, in Dr. Shields’ view, to understand some of the “nuances”
of those questions does not prove otherwise.

In
another attack on the competency finding, the minor argues that his ability to
maintain his composure during the competency hearing “is plainly not the test
of competency.” We agree so far, but
disagree with the minor’s suggestion that such composure is not a factor
that indicates whether a person is competent to stand trial. And the minor wrongly implies that this
factor was the dispositive one in the court’s mind (in the words’ of the
minor’s appellate counsel, “this observation” that the minor “remained quiet
and composed the entire length of the proceedings” was the court’s “‘number
one’ factor when concluding [the minor] was competent”). The minor’s composure was only one
aspect of the evidence that was considered by the judge, and his ruling
makes it readily apparent that the minor’s answers to the experts’
questions were the dispositive evidence (evidence we conclude was
substantial
clear=all >



and supports the judge’s
finding that the minor was competent to stand trial).

DISPOSITION

The
orders of the juvenile court are affirmed.









SCOTLAND , P. J.







I concur.







ROBIE , J.







I concur in the
judgment and in the opinion except as to part II



of the Discussion
as to which I concur in the result.







BLEASE , J.











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