Jesus G., a minor (born Jan. 1998; hereinafter Jesus), represented by the Los Angeles County Public Defender's Office, filed a petition for writ of habeas corpus on December 21, 2012, for his release from Central Juvenile Hall. Jesus was the subject of a wardship petition pursuant to Welfare and Institutions Code section 602 and was placed in juvenile hall. At a September 2012 hearing he was found incompetent to stand trial and remained detained. We initially denied the petition on January 9, 2013, and Jesus filed a petition for review with the Supreme Court.
The Supreme Court granted the petition for review on February 27, 2013. It ordered this court to vacate the January 9th order denying habeas corpus relief and directed us to issue an order to show cause why Jesus's prolonged detention without the provision of services was not in violation of the protocol issued by the Los Angeles Superior Court Juvenile Division and did not otherwise deny Jesus due process of law.
On March 6, 2013, we issued an order to show cause. The Los Angeles County Department of Probation filed a return and the public defender's office filed a traverse. The traverse indicated that as of May 9, 2013, Jesus had been released and a continued hearing on competency was set for August 19, 2013.
We deny the petition for habeas corpus as moot but hold that a minor detained in juvenile hall pending attainment of competency must be provided with adequate services.
In 2011, Jesus was residing with his mother (Mother), his stepfather (Stepfather), two younger brothers and a four-year-old sister. He was born in the United States but had been brought up in Mexico, while his biological father remained in the United States. In May 2011, Mother had recently moved back to the United States to live with Stepfather. Jesus was at school in December 2011 (then 13 years old) when he told school officials he was feeling depressed and wanted to kill himself. He had attempted to cut his wrist because of physical abuse by Stepfather. He was admitted to a psychiatric hospital. During interviews at the hospital, both Jesus and Mother disclosed that he had been touching his brother Christian's genital areas. Christian (then 12 years old) was interviewed by detectives and told them that Jesus gave him $20 and told him not to tell Mother. Christian also told an officer that Jesus had grabbed him by the wrist, forced him against the wall, and placed his penis between Christian's legs until Jesus ejaculated. Jesus denied the allegations and said it was Christian who had touched him. Sibling Alejandro (then 10 years old), told the social worker that Jesus had come into his bathroom two times and tried to touch him on his penis, but Alejandro would not let him. Mother stated that she opened a bedroom door and observed Christian and Jesus lying on the bed, covered with a blanket. She lifted the blanket and observed that Christian's pants were down. Jesus told Mother to leave the room.
A wardship petition under Welfare and Institutions Code section 602 was filed on December 29, 2011, which alleged two counts of committing a forcible lewd act on a child (Pen. Code, § 288, subd. (b)(1)), and two counts of an attempted forcible lewd act upon a child (Pen. Code, §§ 664, 288, subd. (a)). At the time the petition was filed, Jesus was one month shy of 14 years old. Jesus was taken into custody and placed in juvenile hall.
Jesus was arraigned on December 30, 2011. The public defender's office was appointed to represent him.
Mother, who spoke Spanish only, told the probation officer in January 2012 that the whole incident was a misunderstanding as Jesus and Christian were just experimenting with their sexuality. She said once Jesus was returned home she would make arrangements so that Jesus would have his own bedroom and that she would sleep with the other children in the second bedroom, ensuring their safety. Mother denied she or stepfather physically disciplined Jesus. Mother told the probation officer she was illiterate "due to poverty" and had no family members in the country.
Welfare and Institutions Code section 709 provides: "(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) ... 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.... [¶] (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 ... that may assist the minor in attaining competency...."
On January 9, 2012, the Presiding Judge of the Juvenile Division of the Superior Court of Los Angeles County issued a memorandum setting forth a protocol implementing Welfare and Institutions Code section 709 regarding juvenile competency to stand trial (the Protocol).
The Protocol provides in pertinent part, "If the court finds substantial evidence raises a doubt as to the minor's competency the court shall suspend proceedings. If the court suspends proceedings, or grants minor's request for a CST [(competency to stand trial)] evaluation, it shall appoint an expert from the Juvenile Competency to Stand Trial (JCST Panel) under Evidence Code § 730 to perform a CST evaluation.... If the court finds the minor competent, it shall reinstate the delinquency proceedings and proceed with the case." However, if the court finds the minor incompetent to stand trial (IST), "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."
The Protocol then outlines the procedures to be followed if the minor is detained. If the minor is detained the court shall set an IST planning hearing within 15 calendar days. The court shall then order the Los Angeles County Probation Department (Probation) and the Los Angeles County Department of
On May 14, 2012, Jesus's counsel expressed a doubt as to his competence. Pursuant to the Protocol, the juvenile court suspended proceedings and appointed Dr. Timothy Collister to evaluate Jesus.
Dr. Collister performed a competency evaluation on May 30, 2012. His report stated, inter alia, that Jesus reported auditory and visual hallucinations and exhibited paranoia and suspicion. Jesus had been cutting himself before hospitalization and had again attempted to cut himself while at Central Juvenile Hall. Mother was physically abused by his biological father and had
In an addendum dated August 9, 2012, Dr. Collister stated that after administration of a test, 81 of 100 individuals in the presumed incompetent group would have a greater understanding of the criminal proceedings than Jesus does.
In August 2012, the juvenile court ordered a report to be prepared pursuant to Welfare and Institutions Code section 241.1.
On September 18, 2012, the court held a hearing on Jesus's competency. Dr. Collister testified, repeating his opinion that Jesus was not competent to stand trial, but this time he stated, "I think it's developmental immaturity more than a mental disorder. His processing with respect to memory is at the level of a six-year-old. And so the predominant reason for his incompetence is going to be the developmental immaturity. There is a mental disorder superimposed which probably can create difficulty as well, but I think the larger of his incompetence comes from his level of intellectual function."
Collister defined "developmental immaturity" as where the level of intellectual function is weak enough that it is the cause of incompetence. Jesus
The court found Jesus to be incompetent to stand trial. It then ordered Probation, DMH and DCFS to evaluate Jesus and to submit a planning report to the court on whether there are services available to help Jesus attain competency. The court included DCFS "because, although the minor isn't currently under the jurisdiction of [DCFS], if charges are dismissed and the minor is returned home, there are two minor children in that home who probably need to be removed since they are also alleged victims in this case."
The IST planning hearing could not be held within the required 15-day period required by the Protocol because the judge was unavailable. The IST hearing was scheduled for October 15, 2012.
On October 15, 2012, the probation officer's report was submitted. The probation office had conflicting recommendations and did not have a placement available until 2013, so it requested a continuance for a further report. Jesus's counsel opposed a continuance because the Protocol required a ruling on the issue of competency and because any further detention would be a violation of Jesus's constitutional rights. DCFS submitted a report concluding that Jesus should be returned to the home with intensive wraparound services. The "Wraparound Team" would include a youth specialist specifically assigned to Jesus, a parent partner assigned to support Mother and a facilitator assigned to the family. The Wraparound Team members would go to the house on a weekly basis or more frequently as needed to provide counseling.
The court stated, inter alia, "The report does address some issues. Probation indicates they believe the minor may be competent in the future.... I think the minor may be able to attain competency in the future with proper services. Probation still hasn't given us the proper services. I have issues with the public safety in that DCFS is recommending that the minor be placed in the home where both his victims are present.... I heard the testimony of the doctor. I don't have to endorse his testimony.... But I don't think it would be fair to the minor for me to make that determination now since we don't have all of the information."
Jesus's counsel requested the court to order Dr. Collister to appear at the next court hearing to testify, or in the alternative, to allocate more funds so Dr. Collister could evaluate Jesus and issue a further evaluation. The court denied the request and stated, "Again, we have two problems. Number one, this Protocol is so new that we don't even have services in place yet. One of the problems with the legislation was that they provide something we're supposed to do but no resources were allocated in order to attain competency. It looks like we may have those resources in place. I don't know yet because the report wasn't clear. That's why I need a further report. I'm not saying I made a decision yet. I'm saying I need more information."
On November 15, 2012, the juvenile court held the IST planning hearing. The court proposed joining in representatives of DMH, DCFS and Probation at the same time, but stated it did not have the resources to draft the joinder order and subpoenas. Jesus's counsel objected to his continued detention and indicated that it had been 58 days since he was found incompetent and that there had been no remediation efforts by Probation or DMH.
Everyone expressed concern for Jesus and concern that Mother could not protect the siblings. The court stated, "The problem, as I see it, is we have a Protocol set up without the resources to help the minor attain competency. This is just a real dangerous thing for me to do.... I could see the minor being placed back home with the two victims being removed from the home and one of the departments taking responsibility to provide competency training. I think we might be able to fashion a plan, even with the limited resources we have. But again I'm going to suggest to both counsel we need to get all three agencies here at the same time and same place." The court declined to make a final ruling on whether the minor could attain competency. It denied the prosecutor's request to set an attainment of competency hearing and appoint a juvenile expert on the competency plan. Jesus's counsel offered to prepare the joinder subpoenas.
At the December 14, 2012 hearing, the court had a two-hour off-the-record conference with representatives from DCFS, Probation, DMH and county counsel. It then stated, "This is a brand new procedure. I've never done it before, and not many judges in the county have done it before. It's my view that under our Protocol the minor is entitled to be in the least-restrictive environment. It's also my view that the court has an obligation to balance the rights of the minor against public safety issues.... Before I return him to the home where the victims live, I want to initiate counseling services, obviously, to prevent another offense[]. And this concern is based upon the fact that the minor, while in the Hall, has engaged in what has been described as oppositional defiance disorders, that is opposition against authority, and he has acted out sexually.... It's my view that there is a danger of reoffense.... It may turn out Probation may develop services that may be appropriate to both treat the minor ... and to bring him into competency, but those services will not be available for at least two months.... The wraparound team is going to explore with the Department of Mental Health [and] Probation ... getting or keeping wraparound services or FSP in place. The Department of Mental Health, probation, and the wraparound team will explore getting sexual offender counseling in place ... and DCFS is going to explore whether or not they're going to file a 300 petition should the minor be returned home...."
Jesus's counsel then argued that Probation and DMH had provided no training and that Jesus had been incarcerated nearly a year. She argued there should have been an attainment of competency hearing in November 2012 and that he could not be detained after January 6, 2013.
The court denied the request and the matter was continued to December 28, 2012. A petition for writ of habeas corpus was filed on December 21, 2012. We denied the petition for writ of habeas corpus on January 9, 2013.
On January 28, 2013, Jesus's counsel filed a petition for review with the Supreme Court. Jesus remained detained and the matter was continued until February 28, 2013.
The Supreme Court granted review and ordered this court to issue an order to show cause why Jesus's prolonged detention without the provision of services was not in violation of the Protocol issued by the Juvenile Division of the Superior Court of Los Angeles County and did not otherwise deny Jesus due process of law. We issued an order to show cause (OSC) on March 6, 2013.
Jesus's counsel filed a traverse, which argued that Jesus had not received attainment of competency services while in juvenile hall and that Jesus was receiving educational services but not any other services. It also argued that Welfare and Institutions Code section 709 does not preempt the length of time that proceedings may be suspended, nor how long a minor may be detained in juvenile hall. Finally, it asserted that Jesus was deprived of equal protection and due process.
In the traverse, Jesus's counsel noted that Jesus had been released April 9, 2013, and the matter had been set for a competency hearing on August 19, 2013. It contended the petition was not moot because it concerns a current and ongoing problem.
In Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152 [57 Cal.Rptr.2d 200], a courtroom established a rule that parties to a summary judgment motion must file a joint statement of disputed and undisputed facts. The rule was in conflict with Code of Civil Procedure section 437c, which required the parties to file separate statements, as well as with the promulgation requirements contained in the Code of Civil Procedure and the Government Code. The Court of Appeal held that trial judges have no authority to issue courtroom rules which conflict with statutes. (49 Cal.App.4th at p. 1160.)
In Hogoboom v. Superior Court (1996) 51 Cal.App.4th 653 [59 Cal.Rptr.2d 254] a "Family Law Mediation" fee imposed by the Los Angeles County
In Los Angeles County Dept. of Children etc. Services v. Superior Court (1996) 51 Cal.App.4th 1257 [59 Cal.Rptr.2d 613], a local rule was enacted to appoint independent counsel for children in dependency proceedings. No other court rule or code section was inconsistent or conflicted with the rule in question. The Court of Appeal found that the dependency court did not abuse its discretion in issuing the rule and that there was no preemption by state legislation or statewide court rules. (Id. at p. 1267.) It held that the policy and rule were reasonable and a permissible exercise of the court's local rulemaking power. (Id. at p. 1276.)
The Protocol's 120-day limitation on the detention period therefore does not contradict or overrule Welfare and Institutions Code section 709, but adds additional rules for competency proceedings. There are no other code provisions which address these issues. Therefore we conclude the Protocol is not preempted.
In Jackson v. Indiana (1972) 406 U.S. 715 [32 L.Ed.2d 435, 92 S.Ct. 1845], a 27 year old who was described as a "mentally defective deaf mute" who could not read, write or otherwise communicate except through limited sign language was charged with two robberies. (Id. at p. 717.) The court appointed two psychiatrists to examine him. The two doctors submitted a joint report which concluded that he was unable to understand the nature of
The Supreme Court held that the state's indefinite commitment based solely on his incompetency to stand trial was a violation of the defendant's constitutional rights to due process and that the indefinite commitment denied him equal protection because he was subjected to a more stringent standard of release than others charged with similar offenses. (Jackson v. Indiana, supra, 406 U.S. at pp. 729, 731.) It concluded that those who are "feeble-minded" are eligible for release when their condition "justifie[d] it" or when they are "`cured of such illness.'" (Id. at pp. 728-729.)
In In re Davis (1973) 8 Cal.3d 798 [106 Cal.Rptr. 178, 505 P.2d 1018] three persons were arrested, found to be "insane" and committed to state hospitals. (Id. at pp. 802-803.) They all requested writs of habeas corpus to secure their release. None of them established that they were not competent to stand trial and none of them established that there was a likelihood that they would recover their competence. The California Supreme Court found they were all entitled, under Jackson v. Indiana, supra, 406 U.S. 715, to a prompt determination of their competence to stand trial. "[D]ue process demands that the duration of commitments to state hospitals must bear some reasonable relation to the purpose which originally justified the commitment. For example, in In re Gary W. [(1971)] 5 Cal.3d 296, 302-303 [96 Cal.Rptr. 1, 486 P.2d 1201], we noted that the chief purpose of a juvenile commitment to the Youth Authority under Welfare and Institutions Code section 1800 et seq., is to provide treatment for the underlying cause of the ward's dangerousness, and that any person so committed who is not receiving treatment may seek his release through appropriate habeas corpus procedures." (In re Davis, supra, 8 Cal.3d at p. 805.)
The Davis court concluded, "If the report discloses that there exists no reasonable likelihood that the person will recover his competence to stand trial in the foreseeable future, then the court should either order him released from confinement or initiate appropriate alternative commitment proceedings.... The trial court necessarily must exercise sound discretion in
Jackson and Davis both involve adult defendants. We now consider whether they apply to minors in delinquency proceedings.
Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847 [58 Cal.Rptr.3d 746] (Timothy J.) then addressed the differences between adult and minor brains and the ability to think logically and abstractly. (Id. at p. 860.) It concluded the younger a defendant is, the less likely he or she is to have the level of cognitive understanding to meet the Dusky standard. (Id. at pp. 860-861.) It reiterated the Dusky standard is used for determining incompetency and the inquiry is whether the minor is capable of understanding the proceedings and of cooperating with counsel. (Id. at p. 862.) It concluded that a juvenile may be found incompetent to stand trial solely because of developmental immaturity, without a finding of mental disorder or developmental disability.
According to the Protocol, the court shall appoint an expert to evaluate the minor in order to determine his or her competency to stand trial. If the court finds the minor incompetent, it shall suspend proceedings for a period of time "reasonably necessary to determine whether there is a substantial probability that the minor will attain competency in the foreseeable future."
Here, the delinquency proceedings were suspended on May 14, 2012. The court appointed an expert to evaluate Jesus as provided in the Protocol, held a hearing on Jesus's competency on September 18, 2012, and heard testimony from the expert.
The Protocol provides that if a minor is detained the court is to set an IST planning hearing within 15 days.
In this case, the 15-day deadline was not met because the courtroom was dark but an IST planning hearing was set soon after the deadline for October 15, 2012. At this hearing, the probation officer submitted a report with conflicting recommendations. Probation could not recommend a placement, so it requested a continuance. DCFS submitted a report proposing services
The Protocol provides that at the IST planning hearing, the court is to order coordination between Probation and DMH. At the continued hearing on November 15th, the court proposed to join in the representatives of DMH, DCFS and Probation. The court declined to make a final ruling on whether the minor could attain competency, and scheduled another IST planning hearing for December 14, 2012.
The Protocol provides that, following a finding that there is a substantial probability that the minor will attain competency, the court is to set an attainment of competency hearing with 60 days. Here, on December 14th, the court again did not make a finding that the minor would attain competency. It found him incompetent but did not determine what was needed to attain competency, if at all possible. The matter was continued until December 28, 2012, for an attainment of competency hearing.
The record indicates that a January 29, 2013 "Pre trial Conference" hearing was continued until February 28, 2013, for a "competence PT" and that Jesus remained detained.
It appears that part of the court's reluctance to make a finding on whether Jesus could attain competency was due to the expert's equivocation on whether Jesus would become easier to educate on court processes as he matured in age. Dr. Collister was not able to say with certainty that Jesus was or was not going to improve over time. In his May 30, 2012 evaluation, he stated that Jesus's incompetence flowed primarily from a mental disorder and that it was possible but not probable that he would attain competency as his psychiatric disturbance was treated and his status improved. In Collister's testimony on September 18th, he stated that the predominant reason for Jesus's incompetence was developmental immaturity, which could sometimes improve with the passage of time. He then said, "I don't think training is going to help him. It's pretty much a fixed neurologic thing at this point. It may improve in time based on his development."
Because of this testimony and because Probation and DMH could not make specific recommendations about what could be done to help Jesus, the court never made a finding that Jesus could attain competency. In addition, it never ordered specific attainment services.
Several of the Protocol's timelines were violated. The court did not set a timely IST planning hearing, did not order coordination of services between
There was some dispute over what type of services were provided to Jesus.
The reporter's transcript of the October 15, 2012 hearing indicates that Jesus was going to school while in juvenile hall, but receiving no other services.
The November 15, 2012 probation officer's report indicated that DMH stated it did not have a placement that fit Jesus's needs and that there was no program which had been developed. At the November 15th hearing, both the deputy district attorney and counsel for Jesus stated that no remediation services had been provided. The matter was continued to subpoena representatives from DCFS, DMH and Probation.
In his December 14, 2012 report, the probation officer stated he was still attempting to have the regional center screen Jesus and have him assessed for education-related mental health assessment services. There were setbacks in getting the authorization forms because Mother (who did not speak English) was told to fax the regional center intake forms back to the regional center.
The probation officer also reported that juvenile court mental health services did not have a placement that would fit Jesus's current needs. The committee appointed to develop a program for competency restoration was still in the planning stages and it was not anticipated that Jesus could enter a program until 2013.
On appeal, Probation argued that Jesus had been provided with educational and mental health services. A close review of the record, however, indicates
The Protocol sets forth deadlines about when a minor shall be adjudicated incompetent and how long he can be detained while receiving services, but does not set forth what type of services need to be provided to help the minor attain competency. It only provides that there must be "immediate coordination" of mental health and educational services.
While the court was clearly making its best efforts to bring in the various departments to coordinate the plan, as required by the Protocol, it was told repeatedly that no services were provided because no program was yet in place. We conclude that the Protocol was violated to the extent that it required immediate coordination of services and that services needed to be provided within a specific period of time. The court should have required Probation to specify services which it would provide to help Jesus attain competency and to initiate those services immediately despite the fact that no "program" was established.
After reaching the conclusion that the Protocol was violated both as to timelines for court hearings and orders and as to the length of Jesus's detention, we now discuss whether Jesus's due process rights were necessarily violated as well.
The Protocol complies with constitutional requirements. As a result, a violation of the Protocol is presumptively a violation of constitutional rights. However, that presumption is rebuttable based on the facts of a given case. In light of Jesus's release, and the subsequently scheduled hearing, we need not determine whether the circumstances of this case are sufficient to rebut the presumption.
In his petition for writ of habeas corpus, Jesus sought an order for immediate release. Since the traverse indicates that he was released, as of
Since Jesus has been released, we must dismiss the petition for writ of habeas corpus as moot.
Perluss, P. J., and Zelon, J., concurred.
