Filed 12/24/18 In re J.M. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re J.M., a Person Coming Under the Juvenile Court Law.
(Santa Clara County
Super. Ct. No. 17-JV-42313)
Plaintiff and Respondent,
Defendant and Appellant.
After a hearing to determine his competency to proceed, appellant J.M., then 13 years old, was found competent, within the meaning of Welfare and Institutions Code section 709. He subsequently admitted multiple charges of auto theft and burglary and was declared a ward of the juvenile court. On appeal, he challenges the court’s competency determination, contending that the court erred by rejecting the evidence provided by two experts who had found him incompetent. We find substantial evidence to support the juvenile court’s determination that appellant met the statutory criteria for competency and therefore must affirm the order.
Between March 27, 2017, and October 13, 2017, nine juvenile wardship petitions were filed against appellant under section 602. Petitions A through E, counts 1 and 3 of petition G, petition H, and petition I alleged theft or unauthorized use of a vehicle, in violation of Vehicle Code section 10851, subdivision (a). Count 2 of petition A also alleged possession of burglary tools (Pen. Code, § 466); petition F alleged three counts of attempted first degree burglary and two counts of first degree burglary; and count 2 of petition G and count 1 of petition I alleged first degree burglary. (Pen. Code, §§ 664, 459-460, subd. (a).) Petition H included an additional misdemeanor count of hit-and-run driving causing property damage. (Veh. Code, § 20002, subd. (a).) All the offenses were alleged to have taken place between March 12 and May 31, 2017 except in the last petition, which pertained to an alleged burglary and vehicle theft between September 26 and October 1, 2017. Appellant turned 13 on June 6, 2017.
On July 11, 2017, shortly after the filing of petition H, appellant’s attorney requested a hearing to determine appellant’s competency. Appellant had turned 13 the previous month. The court suspended the proceedings on petitions G and H pending a competency hearing.
At the next hearing on August 3, 2017, following testimony from appellant’s mother and the probation officer, petitions A and H were dismissed, along with count 2 (burglary) of petition G. The court then heard testimony from two neuropsychologists who had evaluated the minor to determine his competency to proceed. The neuropsychologists’ reports were also admitted into evidence, along with a clinical psychologist’s report. Both witnesses believed appellant not to be competent. At the conclusion of the testimony, however, the court found appellant competent to proceed within the meaning of section 709.
A jurisdictional hearing took place on October 31, 2017, after the filing of petition I on October 13. Appellant admitted an added count in petition B for misdemeanor possession of burglary tools, and count 1 was dismissed. He also admitted a count 2 added to petition E, for receiving a stolen vehicle (Pen. Code, § 496d). Appellant admitted petitions C (auto theft) and I (burglary and auto theft) as filed, and petition D and the remaining count of petition G were dismissed. The five counts of petition F were also dismissed upon appellant’s admission to an added count 6, being an accessory to an attempted residential burglary (Pen. Code, § 32).
At the disposition hearing on November 21, 2017, the court declared appellant a ward of the court and adopted the case plan filed by the probation officer. From that order appellant filed a timely notice of appeal.
A minor facing wardship proceedings under section 602 has a due process right not to be tried for criminal offenses while mentally incompetent. (In re R.V. (2015) 61 Cal.4th 181, 185 (R.V.); In re Ricky S. (2008) 166 Cal.App.4th 232, 234.) Under section 709, subdivision (a), “[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.”
In R.V. our Supreme Court explained the standards for determining incompetency in a wardship proceeding. Because competency is presumed under section 709, it is the party asserting incompetency—here, appellant—who has the burden to make such a showing. The juvenile court can arrive at the required determination “by conducting an evidentiary hearing, observing first hand not only the testifying witnesses but also the minor’s behavior and interactions with counsel.” (R.V., supra, 61 Cal.4th at p. 199.) Accordingly, “a juvenile court’s determination regarding competency, even if made in the absence of an evidentiary hearing, may be informed by the court’s own observations of the minor’s conduct in the courtroom generally, a vantage point deserving of deference on appeal.” (Ibid.) A finding of incompetency in a minor may be based on developmental immaturity, without a finding of mental disorder or developmental disability. (Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 860-861.)
Because the party asserting incompetency of a minor has the burden of proof, it would seem appropriate upon that party’s appeal to review the record in accordance with Roesch v. De Mota (1944) 24 Cal.2d 563 (Roesch), applied in In re I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.) and many other appellate decisions—i.e., to decide whether the evidence compelled the trial court to find in favor of the party who failed to meet his or her burden of proof on the disputed issue. (Roesch, supra, at p. 571; I.W., supra, at p. 1528.) Indeed, in his dissent in R.V. Justice Chin maintained that the Roesch/I.W. standard should have been applied to uphold the juvenile court’s finding of competency. Nevertheless, the R.V. majority held that the normal substantial evidence standard was applicable. Thus, “the appellate court evaluating a claim of insufficient evidence supporting a determination of competency defers to the juvenile court and therefore views the record in the light most favorable to the juvenile court’s determination.” (R.V., supra, 61 Cal.4th at p. 200.) In the wardship context, however, the high court further noted that there is “no single formulation of the substantial evidence test for all its applications.” (Ibid.) “Even if the prosecution presents no evidence of competency, a juvenile court can properly determine that the minor is competent by reasonably rejecting the expert’s opinion. This court has long observed that ‘ “[t]he chief value of an expert’s testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion.” ’ [Citation.] In a case such as this one, therefore, the inquiry on appeal is whether the weight and character of the evidence of incompetency was such that the juvenile court could not reasonably reject it.” (R.V., supra, at pp. 200-201.)
Appellant relies on R.V. in arguing that the juvenile court could not reasonably have rejected the testimony of both neuropsychologists who believed him incompetent. The ruling in R.V. was overturned based on the uncontradicted opinion of a single expert that the minor was incompetent. The Supreme Court held that the court could not reasonably have rejected that expert opinion. It is important, however, to recall the Supreme Court’s admonition that the competency ruling is a “ ‘highly individualized’ ” one, an “ ‘individual-specific decision’ that is ‘unlikely to have precedential value.’ [Citation.]” (R.V., supra, 61 Cal.4th at p. 198.) Consequently, the juvenile court may, as in adult court, draw its conclusions “based on an appraisal of the particular expert testimony by mental health professionals, courtroom observations, and other testimonial and documentary evidence then before the court in the case.” (Id. at pp. 199-200.) The high court expressly rejected the proposition that juvenile courts should always defer to the expert’s evaluation of a minor’s competency. On the other hand, the expert’s opinion “holds special significance in the juvenile competency setting, as contemplated by the Legislature. . . . The statutory scheme therefore contemplates the court will make its determination whether a minor is competent or incompetent with the expert’s specialized knowledge and views in mind.” (Id. at p. 216.)
In accordance with these precepts, we review the evidence provided to the juvenile court regarding appellant’s mental status.
1. Dr. Aurora
Anu Aurora, PhD., conducted a mental health evaluation of appellant on April 19, 2017, though it was not for the specific purpose of a competency evaluation but “to assess for mental illness and/or cognitive impairment, and to address treatment recommendations” after his release and during probationary periods. Appellant described to her his current use of alcohol, marijuana, and cocaine. He displayed hyperactivity and had difficulty maintaining attention and focus, and initially he was guarded and unresponsive; but he became more cooperative and was “easily redirected once rapport was established.” He reported feeling comfortable at Juvenile Hall; his friends were his family. He appeared to lack insight into his lifestyle, even for a 12-year-old; he could not articulate any reasons to stop stealing cars and could not see the impact of his behavior on family members or the community, preferring instead to identify with a street gang. Due to his “difficulty with cooperation” on the testing measure she had used, Dr. Aurora could only generally estimate appellant’s intellectual functioning to fall “within the low-average to average range, based mainly on interview as opposed to testing results.” Appellant’s diagnosis included Cannabis Use Disorder, Severe; Alcohol Use Disorder, Mild to Moderate; Cocaine Use Disorder, Mild to Moderate; ADHD, Combined Type; and Conduct Disorder. He did not display significant cognitive deficits, but he did exhibit the beginning formation of an “antisocial character structure.” Of greatest concern to Dr. Aurora was appellant’s “polysubstance abuse,” which—given his “young age, lack of insight, impulsivity and inconsistent treatment of ADHD”—put him at risk for “dependence on highly potent substances like cocaine.” However, she noted that appellant was “appropriately oriented to time, place and person, and situation.” She checked the “Mildly Impaired” box for the category of attention and concentration and “Within Normal Limits” for “Executive Functioning.”
2. Dr. Hughey
Brent Hughey, Ph.D., was a court-appointed neuropsychologist who had been on the county’s forensic evaluator panel since 1997. His experience included competency assessments of both adults and minors. After reading police reports and Dr. Aurora’s report and conducting an approximately 90-minute interview with appellant, Dr. Hughey believed that the minor did not have “sufficient ability to understand, and, more importantly, sort of rationally assist counsel because of . . . immature development. He’s still just too young.” Although appellant was oriented to time, place, person, and purpose and his long-term memory was adequate, Dr. Hughey believed it “very probable that an individual of that age just simply just hasn’t the cognitive wherewithal because the brain is still not ready for prime time.” At the minor’s age, he explained, the frontal lobes had not developed sufficiently to allow “executive functioning,” self awareness, empathy, and the ability to delay gratification and learn from bad decisions. Dr. Hughey’s “diagnostic impressions” of appellant included Attention Deficit Hyperactivity Disorder (ADHD), Multiple Drug Use Disorder, and “a pretty significant conduct disorder.” In a child whose brain is still growing, the witness explained, abuse of substances that can kill brain cells can inhibit the growth of the connections between areas of the brain; and in children who are already “impulsive, disinhibited, acting out, most substances are going to result in a disinhibition. So it’s like, essentially, throwing fuel to the flame.” An individual with a combination of these conditions will not appreciate positive or negative reinforcement—that is, recognizing the consequences of behavioral choices. Appellant was receiving “positive reinforcement in the worst ways”—that is, from the status he gained from his peers when he committed crimes. He was “boastful” in recalling the details of his offenses and his association with older minors and “purported gangs,” valued being with his “friends” in juvenile hall.
Dr. Hughey also believed that appellant was not competent because he did not understand the roles of the judge, the district attorney, and his own counsel, or the difference between misdemeanors and felonies. When asked about future development of competency, Dr. Hughey noted that part of the problem was that “he just doesn’t get the fact that this is huge the same way you and I do. So he’s going to be doing the quick ‘I’ll do whatever it takes to get out of here.’ ” The minor’s brain would not mature for a while; but there was “a substantial probability”—based on statistics—that he would attain competency in the next year or two. Dr. Hughey believed it was questionable whether appellant would be able to trust and communicate effectively with his attorney because of his conduct disorder. Yet he could comprehend instructions and take advice, and he would be able to tell his attorney information pertaining to his offenses. Following witnesses’ testimony and giving his own, particularly on cross-examination, would be problematic for him, as would understanding the abstract issues and knowing what relevant facts he should tell his attorney. Even sitting through three hours of an afternoon trial would be a challenge, given his ADHD and his developmental immaturity.
On cross-examination Dr. Hughey acknowledged that appellant understood the instructions he was given for the IQ test administered to him. He was “a bit fidgety,” but when “ allowed to sort of blow off a little steam or energy, . . . he was able to complete the test,” and he comprehended what was happening. Dr. Hughey further acknowledged that although he had found appellant to be between “average and low‑average” in intelligence, appellant had average grades in school. Addressing executive functioning, he explained that a number of areas were relevant to this determination, beyond the limited measures Dr. Aurora had used to evaluate appellant. In a number of these areas appellant’s executive functioning was “not adequate.”
Dr. Hughey did agree with Dr. Aurora that appellant had difficulty with impulse control and with planning and organization. He also discussed appellant’s “conduct disorder.” Dr. Hughey clarified that the diagnosis of a conduct disorder does not mean that the person is incompetent to stand trial; “that’s more of a comorbid diagnosis . . . because the main issue here is one of immaturity.” Appellant was able to understand the charges and give Dr. Hughey a detailed account of the facts underlying them; in fact, Dr. Hughey noted, “he was sometimes a little bit proud of them.” As for communicating with counsel, he was able to tell his attorney the facts of his cases, but he would be “essentially just saying what he did—not necessarily understanding all the full-blown measures of what potentially can happen to him with these charges.”
The “number one” obstacle to appellant’s competency, in Dr. Hughey’s view, was “maturational development. He just doesn’t have the wiring yet to be able to do what he needs to do to fulfill the criteria for the ability to stand trial for a juvenile.” It would be “highly improbable,” based on the statistics applicable to children 11 to 13, for someone appellant’s age to be competent to stand trial. Thus, appellant would “need a couple years” of maturation, possibly combined with instruction on the court system and ADHD medication, to be brought to competency.
3. Dr. Perez
The other expert witness, Robert Perez, Ph.D., was a clinical neuropsychologist selected by appellant’s counsel. He had interviewed “probably close to a hundred” children under the age of 14 since 1989. He met with appellant three to five times between May 17 and June 7, 2017. On the first occasion, appellant refused to cooperate after the first few minutes; but on the second and third meetings, the interviews lasted at least two hours. His testing of appellant was incomplete, due to the “poor cooperation by the minor,” rendering some of the results invalid; and appellant declined another meeting in late June. Dr. Perez cited appellant’s performance level on the WISC as “borderline impaired”; he scored at the first percentile for social ability and 16th percentile for cognitive ability, giving him a “full scale IQ” of 76. Appellant was deficient in the capacity for “social empathy,” which was further diminished by the inability to focus, attend, and concentrate. He did not seem to understand why he should not admit and speak about having stolen cars. Those limitations would then make it challenging for him to cooperate with his attorney. In addition, he was limited in his understanding of the roles of the court participants, the charges, and the penalties. Primarily, however, the minor was incompetent not because of his age, and “not because he doesn’t understand, but because he can’t pay attention, because he can’t bond with people and trust them.” Consequently, in Dr. Perez’s view, “[t]he calendar, in and of itself, will not cure his psychopathology” and render him competent. That psychopathology included “attention deficit disorder,” conduct disorder, and an “adjustment disorder with significant disturbance in emotion and conduct,” along with “various substance abuse diagnoses.” At best competency training would educate him about the legal process; it would not address “his behavior, his thought process, his impulsivity”; it “does not teach . . . concept formation, empathy, judgment, his ability to have a trusting relationship with [counsel].” And managed ADHD medication would be “a necessary, but not sufficient, condition” for competency.
4. The Court’s Ruling
At the conclusion of the competency hearing, the juvenile court expressly stated that it had reviewed all the arguments, attachments, and expert testimony in the case, and it was “mindful [of its] obligation to weigh and balance the various factors in this case.” It first noted that the minor had the burden to prove that he was not competent by a preponderance of the evidence. It posed the following questions: “Does the minor have the present ability to consult with counsel? Does the minor have the present ability to assist in the preparation of his defense with a reasonable degree of rational understanding? Or does the minor lack a rational, as well as a factual, understanding of the nature of the charges . . . [and] of the proceedings against him?”
The court then stated that it believed that appellant did have “the present ability to consult with his counsel, and he has the present ability to assist in the preparation of his defense with a reasonable degree of rational understanding.” It explained that the two experts had focused on the minor’s understanding of the roles of the players in the juvenile justice system and the legal process itself, rather than on his ability to consult with his attorney and assist in the preparation of his defense. The minor’s confusion over the exact roles of the judge and attorneys was understandable, the court reasoned; moreover, how the process worked and what legal defenses were available were concepts “that the minor is capable of learning.” He was not expected to have enough knowledge to pass a civics test or criminal procedure class. And he was able to listen to the court.
Likewise, based on the experience of the neuropsychologists who had in time developed a rapport with the minor, his attorney would, given extra time, overcome the minor’s “trust issue.” Evidently the court did not accept the suggestion that appellant’s chronic substance abuse, ADHD, and conduct disorder would impair his ability to assist counsel in his defense. As for appellant’s average-to-low-average IQ, the court did not believe that appellant would be unable to understand the proceedings or work with his attorney. Notwithstanding the IQ test results, the court found appellant to be “very bright.”
After receiving the three psychologists’ reports and hearing testimony by Drs. Hughey and Perez, the court concluded that appellant had sufficient ability to consult with his attorney and assist her in preparing his defense with a reasonable degree of rational understanding, and that he had a rational and factual understanding of the nature of the charges against him. Appellant contends that this conclusion was based on an unreasonable disregard of the opinion of both experts that appellant lacked the ability to assist counsel in preparing his defense.
We disagree. As the Supreme Court noted in R.V., “a juvenile court can properly determine that the minor is competent by reasonably rejecting the expert’s opinion.” (R.V., supra, 61 Cal.4th at p. 200.) We cannot say that the court in this case unreasonably rejected the conclusions of the two expert witnesses. Although both experts believed appellant not to be competent—with a grim forecast for improvement, according to Dr. Perez— the court believed that appellant would be able to understand the legal process and roles of the judge, district attorney, and defense counsel. According to Dr. Hughey, appellant had “a fair idea of the actual charges and kn[ew] they have some form of consequence.” He was able to describe his offenses in some detail, though he was “not quite clear” on “the legal issues, procedures, and defenses.” And Dr. Perez found that appellant knew that the defense attorney was there to act on his behalf and that the district attorney was “adverse to his interests.” The court, having observed appellant in court, was entitled to infer that appellant was capable of absorbing information on these legal issues and procedures; those observations promoted “a vantage point deserving of deference on appeal.” (R.V., supra, at p. 199.)
The court could further credit the statement by Dr. Hughey that in spite of the ADHD diagnosis, appellant was able to participate in the evaluation process and maintain focus “as best he could.” Although Dr. Perez predicted that appellant’s incompetency could continue to the age of 20 based on his psychopathology as well as his age, the witness acknowledged the distinction between competency and capacity, and between “capacity to work with an attorney and actually doing it”; he conceded that just because appellant lacked empathy and did not want to cooperate did not necessarily mean he was incompetent. Appellant told Dr. Perez that if he heard false testimony, he would tell his attorney about it.
Finally, the court was entitled to rely on its own first-hand observations of the minor’s behavior and interactions with counsel. (R.V., supra, 61 Cal.4th at p. 199.) In a “ ‘highly individualized’ ” determination such as this, deference by the reviewing court is appropriate. (Ibid.) Having examined the record in light of that deferential standard, we cannot say that “the weight and character of the evidence of incompetency was such that the juvenile court could not reasonably reject it.” (Id. at p. 201.) Because appellant could not meet his burden to show incompetency in the juvenile court and on appeal to show error in that determination, reversal is not required.
The order is affirmed.
GREENWOOD, P. J.
People v. J.M.
 All further statutory references are to the Welfare and Institutions Code except as otherwise indicated.
 Appellant’s attorney had raised this issue as early as April of 2017 during a hearing on “pre-court EMP failure detention.”
 The statute has been reworded slightly in the version effective January 1, 2019.
 Dr. Hughey gave appellant the WISC-V, the Wechsler Intelligence Scale for Children.
 Speaking generally, Dr. Hughey agreed that performance on the WISC can be affected by knowing English as a second language and low socioeconomic status.
 Executive functioning, Dr. Hughey explained, involves not only problem‑solving, but also “inhibition, figuring things out, delayed gratification, that sort of thing.” Dr. Aurora had used a “very simple specific task” that would not generate an accurate representation “of the real world in terms of how [J.M.] is actually performing.”
 Dr. Hughey explained “conduct disorder” to the court as “kind of like mini-antisocial personality disorder. So they cannot comport to [sic] normal behavior; so, like, in the classroom or general public, they engage in what would be illegal or potentially hurtful activities. They have a higher inciden[ce] of hurting other people, taking things, being very self-centered in their approach.” Lack of empathy is another component, he added.
 Dr. Perez did acknowledge that a competency restoration program that helped him stop his substance abuse, to the extent that it could be accomplished, would be a “positive factor” in achieving competency, as would remaining in a consistent setting with positive role models, if he availed himself of them. Those factors, if combined with consistent use of ADHD medication and a trusting relationship with an adult, would increase the likelihood of competency. Otherwise, “[i]f you wait long enough, he’s going to be competent. You might have to wait until he’s 20, but . . . that ultimately will happen.”
 The court cited In re Norman H. (1976) 64 Cal.App.3d 997 for the proposition that neither a low IQ nor any particular age is a proper basis on which to assume lack of understanding and incompetency. Norman H. pertained to a minor’s understanding of Miranda warnings, which was not undermined by his low IQ.