K.R. v. Super. Ct. ( 2023 )

Filed 4/26/23 (unmodified opn. attached)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
K.R., B321655
Petitioner, (Los Angeles County
Super. Ct. No. FJ57352)
v.
THE SUPERIOR COURT OF LOS ORDER MODIFYING
ANGELES COUNTY, OPINION; NO CHANGE
IN JUDGMENT
Respondent;
THE PEOPLE,
Real Party in Interest.
THE COURT:
It is ordered that the opinion filed on March 30, 2023, be
modified as follows:
*
Pursuant to California Rules of Court, rule 8.1100, the
opinion is certified for publication with the exception of parts
II.C.3 and II.C.4.
On page 20, line 6 under subheading 1. Relevant
Proceedings, change Dr. Ward’s first name from “Kelli” to “Jody”
so the sentence reads:
The court granted the motion, and on April 20 signed
an order to allow the expert, Dr. Jody Ward, to
examine K.R.
There is no change in the judgment.
_________________________________________________________________
WEINGART, J. CHANEY, J. BENDIX, Acting P. J.
2
Filed 3/30/23 (unmodified opinion)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
K.R., B321655
Petitioner, (Los Angeles County
Super. Ct. No. FJ57352)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate.
Christopher Smith, Judge. Petition denied.
Cyn Yamasiro, Markéta Sims, and Martin Lijtmaer for
Petitioner.
*
Pursuant to California Rules of Court, rule 8.1100, this
opinion is certified for publication with the exception of parts
II.C.3 and II.C.4.
No appearance for Respondent.
George Gascón, District Attorney, Tracey Whitney and
Felicia Shu, Deputy District Attorneys, for Real Party in Interest.
_____________________
In 2018, the Legislature enacted Assembly Bill No. 1214
(2017-2018 Reg. Sess.) (Stats. 2018, ch. 991), which repealed the
then existing statute governing competency proceedings in
juvenile delinquency cases and replaced it with a new version,
Welfare and Institutions Code section 709.1 According to the
bill’s author, the purpose of the bill was to eliminate situations in
which juveniles found not competent to stand trial “remain[ed] in
[juvenile] hall without clear timelines governing the length of
remediation services.” (Sen. Com. on Pub. Saf., Analysis of
Assem. Bill No. 1214 (2017-2018 Reg. Sess.) June 26, 2018, p. 7.)
To that end, the new version of the statute provides that for
juveniles, “the total remediation period shall not exceed one year
from the finding of incompetency.” (§ 709, subd. (h)(3).)
In this case, almost 15 months elapsed from the time the
juvenile court found petitioner K.R. incompetent to stand trial
and referred him for remediation, until the court determined that
he had been restored to competency and reinstated the
proceedings. K.R remained in juvenile hall for that entire period.
He filed a writ petition arguing that the court lost jurisdiction
when it failed to make a final ruling on his competency by the
one-year deadline for remediation services, and was required to
dismiss the case at that point. In the alternative, he argues the
1Unless otherwise specified, subsequent statutory
references are to the Welfare and Institutions Code.
2
court erred by allowing the prosecution to employ its own expert
to examine him, and asks us to order the juvenile court to strike
the expert’s testimony.
We disagree with both arguments. In the published portion
of our opinion, we hold that although section 709 establishes a
maximum period of one year of remediation, the juvenile court’s
jurisdiction continues for a reasonable period afterward for the
court to resolve any dispute still existing at the end of that period
over whether the minor has attained competency. Even if this
was not the case, section 709 permits a court to keep juveniles
accused of certain serious offenses (including several with which
K.R. was charged) in secure confinement past the one-year
remediation period for conclusion of competency proceedings. We
also find that section 709 does not preclude the parties from
seeking the appointment of their own expert(s) after the initial
competency hearing. In the unpublished portion, we hold that
K.R. has not demonstrated prejudicial error from his examination
by a prosecution expert.
I. FACTS AND PROCEEDINGS BELOW
On August 27, 2020, the People filed a juvenile delinquency
petition under section 602 alleging that K.R. committed murder,
in violation of Penal Code section 187, subdivision (a) (count 1);
home invasion robbery (id., § 211; counts 2 & 3); and residential
burglary (id., § 459; count 4). K.R. was 17 years old at the time of
the alleged offenses.
K.R.’s attorney expressed a doubt about K.R.’s competency,
and the court appointed a psychologist to examine K.R. The
psychologist found that K.R. had a developmental disability, and
that as a result, K.R. was unable to consult with counsel and
assist in preparing his defense. Nevertheless, the psychologist
3
believed K.R. could be remediated—that is, restored to
competency.
The parties submitted on the expert’s report, and on
May 13, 2021, the court found K.R. incompetent to stand trial
and referred him to remediation services in the hope of restoring
him to competency. According to employees at the remediation
program, and in part due to Covid-19 pandemic related
procedures, K.R. did not begin receiving remediation services
until approximately three months later, in August.
Section 709, subdivision (h)(1) calls for an evidentiary
hearing “[w]ithin six months of the initial receipt of a
recommendation” for remediation to determine “whether the
minor is remediated or is able to be remediated.” The court
timely conducted this hearing in October 2021 and found that
K.R. remained incompetent, but that he was likely to be
remediated, and ordered him to return to remediation. K.R.
thereafter continued to receive remediation services over the next
several months. During that time, K.R. was examined by two
court-appointed psychologists, both of whom concluded that he
was not competent and was not likely to be restored to
competency.
With the one-year statutory deadline for remediation
looming, the People filed a motion on April 8, 2022, to have K.R.
examined by a psychologist retained by the People. K.R.’s
attorney objected, arguing that section 709 does not allow the
People to retain an expert to evaluate a minor after the initial
competency hearing, and that the prosecutor had not complied
with the requirements to meet and confer and to inform defense
counsel in advance about the name of the expert, and the time,
manner, and scope of the evaluation.
4
The juvenile court ultimately overruled the objection, but
the litigation on the issue delayed the process. The People’s
psychologist did not examine K.R. until May 9, 2022, and did not
file her report opining that K.R. was competent to stand trial
until May 11, 2022. At a hearing on May 12, 2022, K.R.’s
attorney argued the juvenile court should dismiss the petition
because section 709 permitted only one year of remediation, and
that period expired the following day on May 13, 2022. The
juvenile court denied the motion without prejudice, and
continued the matter to May 18, 2022, to hear from the
competing experts.
At the hearing on May 18, 2022, the judge to whom the
case was assigned recused himself in the middle of the
evidentiary hearing after learning that he was acquainted with
one of the percipient witnesses in the case. The matter was then
reassigned to another judicial officer, who reconvened the hearing
on May 20, 2022. At the May 20, 2022 hearing, K.R.’s attorney
renewed the motion to dismiss, and the juvenile court again
denied it.
K.R. filed the instant petition for a writ of mandate on
July 15, 2022. While the writ petition was pending, the juvenile
court found on August 11, 2022, that K.R. was competent to
stand trial.2
2 We take judicial notice of the juvenile court’s ruling.
5
II. DISCUSSION
A. Background on Section 709
Because this case turns almost entirely on the
interpretation of section 709, we begin by describing the aspects
of that statute relevant to this case.
Proceedings under section 709 are triggered when any
party or the court itself expresses a doubt as to the minor’s
competency. (§ 709, subd. (a)(3).) “If the court finds substantial
evidence raises a doubt as to the minor’s competency, the
[delinquency] proceedings shall be suspended.” (Ibid.; accord, id.,
subd. (a)(1).)
At this point, unless the parties stipulate to a finding of
incompetency or agree to submit on the issue, “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
incompetent.” (§ 709, subd. (b)(1).) In addition to the court-
appointed expert, “The district attorney or minor’s counsel may
retain or seek the appointment of additional qualified experts
who may testify during the competency hearing. . . .” (Id., subd.
(b)(6).) If the People choose to retain or appoint an expert, they
must first obtain “an order from the juvenile court after
petitioning the court for an order pursuant to the Civil Discovery
Act.” (Ibid.)
Unless the parties stipulate that the minor is incompetent
or agree to submit the matter on the basis of the expert’s finding
that the minor is incompetent, the court must hold an evidentiary
hearing at which it is “presumed that the minor is mentally
competent, unless it is proven by a preponderance of the evidence
6
that the minor is mentally incompetent.” (§ 709, subd. (c).) If the
court finds the minor competent, it must reinstate proceedings.
(Id., subd. (d).)
Upon a finding of incompetence, “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 and
the case must be dismissed.” (§ 709, subd. (e).)
Under subdivision (f) of section 709, if the minor is alleged
to have committed only misdemeanor offenses, “the petition shall
be dismissed” upon a finding of incompetency. In cases involving
incompetent minors accused of at least one felony, “the court
shall refer the minor to services designed to help the minor attain
competency, unless the court finds that competency cannot be
achieved within the foreseeable future.” (Id., subd. (g)(1).) The
court must order these remediation services to be “provided in
the least restrictive environment consistent with public safety,”
and must consider alternatives to confinement in juvenile hall.
(Ibid.)
Unless all “parties stipulate to, or agree to the
recommendation of, the remediation program,” “[w]ithin six
months of the initial receipt of a recommendation by the
designated person or entity”3 the court must hold another
3The statute does not clearly identify who the “designated
person or entity” is whose “recommendation” triggers the
beginning of the six-month time period for the second evidentiary
hearing. The juvenile court inferred that the six-month clock
began running upon the receipt of the initial report of the court-
7
evidentiary hearing to determine “whether the minor is
remediated or is able to be remediated.” (§ 709, subd. (h)(1).)
The statute contemplates three possible outcomes from this
hearing. First, “If the court finds that the minor has been
remediated, the court shall reinstate the proceedings.” (Id., subd.
(h)(2).) On the other hand, “If the court finds that the minor will
not achieve competency within six months, the court shall
dismiss the petition.” (Id., subd. (h)(4).)
The third possibility is that “the court finds that the minor
has not yet been remediated, but is likely to be remediated within
six months.” (§ 709, subd. (h)(3).) In this instance, “the court
shall order the minor to return to the remediation program.
However, the total remediation period shall not exceed one year
from the finding of incompetency and secure confinement shall
not exceed the limit specified in” subdivision (h)(5)(A). (Id., subd.
(h)(3).) Subdivision (h)(5)(A) in turn provides that “[s]ecure
confinement shall not extend beyond six months from the finding
of incompetence,” unless the court considers several factors and
determines “that it is in the best interests of the minor and the
public’s safety for the minor to remain in secure confinement.”
(Id., subd. (h)(5)(B).) In cases where the minor is alleged to have
appointed expert, who must “make recommendations regarding
the type of remediation services that would be effective in
assisting the minor in attaining competency.” (§ 709, subd.
(b)(3).) The Los Angeles Superior Court protocols on juvenile
competency hearings interpret the statute the same way.
(Greenberg, P. J., Competency to Stand Trial Protocol (Mar. 6,
2019) p. 8 (Protocol)
[as of Mar. 28, 2023].) We take judicial notice of this
document.
8
committed certain serious offenses (which include some of the
charges against K.R. in this case),4 the court may “order secure
confinement of a minor for up to an additional year, not to exceed
18 months from the finding of incompetence.” (Id., subd.
(h)(5)(C).)
Section 709 does not explicitly provide for any additional
competency hearings after the six-month hearing described in
subdivision (h)(4).5 Neither party here disputes the propriety of a
hearing after additional remediation is ordered pursuant to
section 709, subdivision (h)(3). In certain cases involving
incompetent adult defendants, courts have held that if “the
statutes do not authorize . . . a [competency] hearing, the court’s
convening of one . . . exceed[s] its jurisdiction.” (People v. Quiroz
(2016) 244 Cal.App.4th 1371, 1380; accord, In re Taitano (2017)
13 Cal.App.5th 233, 249-256.) But as our Supreme Court has
made clear, these cases are “not applicable where there is a
statutory basis for holding a competency hearing.” (Jackson v.
Superior Court (2017) 4 Cal.5th 96, 107.) For example, the
statutory scheme for adults does not expressly require a court
hearing to determine whether competence has been restored after
state health officials file a certificate attesting to such
restoration. (People v. Carr (2021) 59 Cal.App.5th 1136, 1144.)
4These offenses are listed in section 707, subdivision (b)
and include, as relevant to this case, the murder and robbery
charges against K.R.
5 The statute does provide that the juvenile 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 prior to the expiration of the total remediation period.”
(§ 709, subd. (g)(1).).
9
But such hearings are proper and necessary even though they are
not expressly mentioned because the statutory structure
“ ‘indicate[s] a legislative intention that such a hearing be
afforded.’ [Citations.]” (Ibid.)
Similarly, section 709 contemplates a further competency
hearing such as the one that occurred in this matter, and absurd
results would ensue if we rejected the possibility of such a
hearing even though it is not expressly mentioned in the statute.
As noted above, section 709 specifies that an evidentiary hearing
shall take place within the first six months of the initial
recommendation from the “designated person or entity” if there is
any dispute whether the juvenile has been remediated. (§ 709,
subd. (h)(1).) At that hearing the court “shall order the minor to
return to the remediation program” if the court finds it likely the
minor will be remediated within six additional months (§ 709,
subd. (h)(3).) Given this statutory language, as the court in J.J.
v. Superior Court (2021) 65 Cal.App.5th 222 (J.J.) noted,
“common sense suggests there must be some sort of hearing
approximately 12 months after the initial finding of
incompetency, because without a determination of the juvenile’s
competence at the 12-month mark, there would be little purpose
for extending the remediation period to that mark.” (Id. at
p. 232.) Indeed, it is at least arguable that continued
confinement for remediation after six months can withstand
constitutional scrutiny only if there is a possibility of a further
competency hearing. Otherwise, a minor’s continued
confinement might violate constitutional restrictions on confining
an incompetent defendant “more than the reasonable period of
time necessary to determine whether there is a substantial
probability that he will attain that capacity in the foreseeable
10
future.” (Jackson v. Indiana (1972) 406 U.S. 715, 738 [92 S.Ct.
1845, 32 L.Ed.2d 435]; accord, In re Davis (1973) 8 Cal.3d 798,
801.)
B. Section 709 Does Not Require Dismissal if
Competency Related Legal Proceedings Are Not
Concluded within One Year
K.R. argues that the one-year remediation limit in section
709, subdivision (h)(3) is absolute, and that “Once 12 months
[have passed] and the prosecution has not established that the
client has been remediated, the juvenile court loses jurisdiction,
and the juvenile petition must be dismissed.” Under section 709,
subdivision (e), the court may suspend proceedings “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 and the case must be dismissed.”
According to K.R., by limiting the remediation period to no more
than one year, the Legislature has set a maximum for the period
reasonably necessary to determine whether the minor will attain
competency, and at that point, the court must dismiss the case.
Issues of statutory construction are questions of law subject
to a de novo standard of review. (California Teachers Assn. v.
San Diego Community College Dist. (1981) 28 Cal.3d 692, 699.)
“ ‘We consider first the words of a statute, as the most reliable
indicator of legislative intent.’ ” (California Building Industry
Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032,
1041.) “ ‘ “We interpret relevant terms in light of their ordinary
meaning, while also taking account of any related provisions and
the overall structure of the statutory scheme to determine what
interpretation best advances the Legislature’s underlying
11
purpose.” ’ [Citation.] ‘If we find the statutory language
ambiguous or subject to more than one interpretation, we may
look to extrinsic aids, including legislative history or purpose to
inform our views.’ [Citation.]” (In re A.N. (2020) 9 Cal.5th 343,
351-352.)
Looking first to the words of section 709, subdivision (h)(3)
sets a maximum time for remediation, but it neither states nor
implies that the court loses jurisdiction at the end of the
remediation period. Subdivision (e) indicates that the court must
dismiss a case after it loses jurisdiction, but it does not set a
condition for the loss of jurisdiction. Two additional provisions of
section 709 do require the juvenile court to dismiss a petition in
circumstances not applicable here. Under subdivision (f), the
court must dismiss the case if a minor who is accused of only
misdemeanor offenses is found to be incompetent, and the same
is true under subdivision (h)(4) if the court finds at the six-month
hearing that the minor is unlikely to be remediated within six
more months. If the Legislature had meant to require a
dismissal at the end of the remediation period, it presumably
would have said so. (E.g., Delta Stewardship Council Cases
(2020) 48 Cal.App.5th 1014, 1052.)
We also disagree with K.R.’s contention that the court’s
holding in J.J. supports his position. In that case, following an
evidentiary hearing, the juvenile court found the remediation
services provided over the prior 12-month period had not restored
the minor to competency. (J.J., supra, 65 Cal.App.5th at pp. 226-
227.) The Court of Appeal held that at that point, the juvenile
court was required to release the minor from custody and dismiss
the petition. (Id. at p. 225.) The court reasoned that, “Since a
juvenile court must dismiss a juvenile proceeding at the six-
12
month hearing if there is no likelihood the juvenile will be
remediated by the end of the 12-month remediation period (§ 709,
subd. (h)(4)), it makes sense that the court must dismiss the
petition at the 12-month hearing where the juvenile has not, in
fact, been remediated by the end of the 12-month remediation
period.” (Id. at pp. 233-234.) Here, unlike in J.J., the court made
no finding that K.R. remained incompetent at the end of one
year. Instead, the court was in the process of resolving a dispute
between the parties regarding whether K.R. was competent
following remediation. Thus, the requirement to dismiss the case
under section 709, subdivision (h)(4) was not yet triggered.
K.R.’s interpretation of section 709’s maximum 12-month
“remediation period” further does not accord with the purpose of
that time frame. Although section 709 does not define the
“remediation period,” the legislative history shows that it is the
period during which juveniles are provided services designed to
restore them to competency. (E.g., Cal. Bill Analysis, Assem.
Conc. in Sen. Amend., Assem. Bill No. 1214 (2017-2018 Reg.
Sess.) Aug. 28, 2018, p. 6; Sen. Com. on Public Safety, com. on
Assem. Bill No. 1214 (2017-2018 Reg. Sess.) June 26, 2018, pp. 5-
6, 9.) K.R.’s interpretation of section 709 thus poses a practical
problem: A competency hearing cannot be completed
instantaneously upon the completion of remediation services.
Adopting K.R.’s position would effectively downsize the statutory
remediation period to something meaningfully shorter,
particularly when competency is contested. In order to allow
enough time to hold a hearing and make a ruling within one year
of the initial finding of incompetency, the court would need to
schedule the hearing to begin before the deadline, including
allotting enough time to conclude the hearing and rule before the
13
one-year mark (and as illustrated here, an additional buffer in
case something unexpected arose that delayed the court or
counsel timely concluding the hearing). That would mean the
last portion of the remediation period would be effectively
unavailable, because even if a minor attained competency during
that time, it would not be possible to complete a hearing and
reinstate proceedings before the deadline. The Legislature may
set any maximum remediation period it chooses consistent with
constitutional restraints, but to allow for the possibility of
restoration of competence up to the end of that period, there must
be some allowance for a competency hearing after the
remediation period has expired if the entirety of that period is
necessary for remediation services.6
The author of Assembly Bill No. 1214 stated that the bill
was intended to ensure that “vulnerable kids receive appropriate
6 We note the Courts of Appeal are currently split on a
similar issue involving adults, namely whether the maximum
commitment period under Penal Code section 1370.1, subdivision
(c)(1) for remediation services includes the period up to and
including the court making its own determination whether
competency has been restored. (Compare Rodriguez v. Superior
Court (2021) 70 Cal.App.5th 628 [commitment period ends when
certificate of restoration filed], review granted Jan. 5, 2022,
S272129, with People v. Carr, supra, 59 Cal.App.5th 1136[commitment period includes time until trial court makes finding
whether a defendant is restored to competency].) As shown by
the above, we find the analogous reasoning of Rodriguez more
persuasive that the juvenile “remediation period,” like the adult
commitment period, “cover[s] only the time the defendant
actually receives treatment to restore his or her competence” and
“not to the entire period before the trial court’s [finding] . . . of
restoration to competence.” (Rodriguez, supra, at p. 654.)
14
services . . . within a reasonable time frame in order to get them
out of [juvenile] hall and in proper placement and care going
forward.” (Sen. Com. on Public Safety, com. on Assem. Bill
No. 1214, supra, p. 7.) The legislative history further notes that
“Research on remediation services suggests a majority of youth
can be remediated prior [to] a year if they are able to be
remediated” (id. at p. 9), so a hearing on whether a juvenile was
restored to competency that takes place after the 12-month
period should occur infrequently because it will be the rare case
where remediation services consume the entire 12-month period.
Given the facts before us, we do not believe it violates either the
letter or spirit of section 709 to allow for a reasonable period of
time after the expiration of the remediation period for the court
to conduct a competency hearing. The court may suspend
proceedings “no longer than reasonably necessary to determine
whether there is a substantial probability that the minor will
attain competency in the foreseeable future.” (§ 709, subd. (e).) A
hearing to determine whether the minor actually has regained
competency after receiving remediation services is necessary to
determine whether the suspension of proceedings may end.
To the extent a court hearing addressing whether
competency has been restored concludes after the applicable
statutory period for remediation services, any such delays must
account for the requirement that “ ‘continued commitment [of an
incompetent defendant] must be justified by progress toward
[the] goal’ ” of restoring him to competence. (In re Davis, supra, 8
Cal.3d at p. 804; accord J.J., supra, 65 Cal.App.5th at pp. 238-
239.) The three-month delay from the end of the remediation
period until the court’s ruling that K.R. was competent to stand
trial was admittedly long, but in the circumstances of this case,
15
the delay was not unreasonable. Nearly the entire 12-month
period was used here because of delays from the Covid-19
pandemic, and because litigation over the People’s expert delayed
that expert examining K.R. and preparing a report. Once the
hearing began, the judge presiding over the case recused himself
in the midst of the hearing after learning that he was acquainted
with a percipient witness in the case, and it required some time
before the new judge could conclude the proceedings.
Our holding on this question should not be interpreted as a
license to indulge delay and hold minors in secure confinement
for any extended period following the conclusion of remediation
services. The circumstances in this case represent the exception,
not the rule. In most instances, juvenile courts should be able to
make a final determination regarding a minor’s competency
before the one-year remediation period has expired, or very soon
thereafter. It is possible that our analysis in this case would be
different if the juvenile court had not had a compelling
justification for the delay here before the final ruling.
Even if section 709 is read to require the court’s
adjudication of whether remediation services have restored
competency also must conclude during the 12-month maximum
for remediation services, dismissal here was not warranted.
Section 709, subdivision (h)(5)(C) allows the juvenile court to
order minors accused of serious offenses to remain in “secure
confinement . . . for up to . . . 18 months from the [initial] finding
of incompetence.” The People acknowledge that subdivision
(h)(5)(C) does not extend the maximum remediation period
beyond 12 months, and we agree. Nor does it permit continuing
to confine a juvenile after the court has determined remediation
services as set forth in section 709 have not or will not restore a
16
juvenile to competency. (See J.J., supra, 65 Cal.App.5th at
p. 242.) But subdivision (h)(5)(C) did permit the juvenile court to
detain K.R. to resolve issues involving his competence past the
12-month remediation period with reasonable promptness.
K.R. argues that section 709, subdivision (h)(5)(A) places a
restriction on the application of subdivision (h)(5)(C).
Subdivision (h)(5)(A) sets forth several factors7 the court must
7 K.R also contends that his continued confinement was
improper because the juvenile court did not make specific
findings on these factors. He has forfeited this argument by
failing to object before the juvenile court. At a hearing on
October 13, 2021, the court stated as follows: “The court has . . .
considered the factors set forth in [section] 709[, subdivision
(h)(5)(A)] . . . and finds that upon consideration of these factors
. . . it is in the best interest of K.R. and the public safety for him
to remain in his current custodial facility.” K.R.’s attorney did
not ask the court to clarify its ruling or apply each factor listed in
subdivision (h)(5)(A) individually. At another hearing on May 12,
2022, the eve of the expiration of the one-year remediation
period, the court stated, “This case involves an offense listed in
subdivision (b) of [section] 707. . . . [¶] The court finds that it is
necessary and in the best interest of K.R. and the public safety to
order secure confinement of K.R. . . . until the hearing is
concluded over the defense objection.” K.R.’s attorney had
objected to the extension of K.R.’s confinement beyond one year,
but did not argue that the court’s ruling was improper for failing
to consider all of the factors in section 709, subdivision (h)(5)(A)
explicitly. The purpose of the forfeiture rule is “to allow the trial
court to correct its errors and ‘to prevent gamesmanship by the
defense.’ ” (People v. Arredondo (2019) 8 Cal.5th 694, 710.) By
waiting until this writ petition to address the issue, K.R. has
prevented the court from considering the question or explaining
its reasoning in the first instance.
17
consider before ordering the secure confinement of a minor
beyond six months, one of which is “[w]here the minor will have
the best chance of obtaining competence.” (§ 709, subd.
(h)(5)(A)(i).) Because K.R. was no longer receiving remediation
services beyond the one-year mark, he argues that the possibility
of helping him obtain competence could no longer justify his
secure confinement.
This argument proves too much. As we noted above, we
agree with K.R. that section 709, subdivision (h)(3) establishes a
one-year maximum remediation period. But the Legislature, in
enacting subdivision (h)(5)(C), plainly intended for juvenile
courts, in appropriate cases, “to order secure confinement of a
minor for up to . . . 18 months from the finding of incompetence,”
i.e., after the end of remediation. K.R.’s interpretation would
effectively write subdivision (h)(5)(C) out of the statute. We must
avoid a statutory “ ‘construction making some words surplusage’ ”
(People v. Valencia (2017) 3 Cal.5th 347, 357), “and every word
should be given some significance, leaving no part useless or
devoid of meaning.” (City and County of San Francisco v. Farrell
(1982) 32 Cal.3d 47, 54.)
We therefore interpret section 709, subdivision (h)(5)(A)(i)
as defining one of several relevant factors the court should
consider when deciding whether to order continued secure
confinement, not an absolute requirement. When a minor is
accused of serious offenses, section 709, subdivision (h)(5)(A)(i)
does not bar the court from ordering secure confinement beyond
the end of the remediation period under the particular
18
circumstances of this case to conclude a competency hearing
following the conclusion of remediation services.8
C. The Juvenile Court Did Not Err by Allowing the
People to Retain an Expert to Evaluate K.R.
K.R. argues that the juvenile court erred by allowing an
expert appointed by the People to evaluate him in May 2022,
almost one year after the court initially found him incompetent.
According to K.R., the examination was improper because it came
too late, was contrary to the terms of section 709, and because the
People failed to comply with the Civil Discovery Act in petitioning
the court for the examination. We agree with K.R. that the
prosecutor acted improperly in failing to comply with the Civil
Discovery Act, but we disagree that this requires ordering the
juvenile court to strike the expert’s testimony.9
8 Our decision on this issue is limited to the circumstances
of this case. We need not and do not decide whether section 709,
subdivision (h)(5)(C) allows for secure confinement of minors
beyond the one-year remediation period in any other situation or
for any other reason.
9 The People argue that we should reject these arguments
as untimely. “Appellate courts generally require that
nonstatutory writ petitions be filed within 60 days of service of
the challenged order, i.e., the same 60-day period applicable to
appeals.” (St. Mary v. Superior Court (2014) 223 Cal.App.4th
762, 771-772, fn. 14.) In this case, the juvenile court issued its
order allowing the People’s expert to examine K.R. on April 29,
2022. K.R. filed his writ petition 78 days later, on July 15. But
we have “discretion to hear a writ petition beyond the 60-day
period.” (People v. Superior Court (Lopez) (2005) 125 Cal.App.4th
1558, 1563.) Because there is no indication that the relatively
19
1. Relevant Proceedings
On April 8, 2022, after a court-appointed psychologist filed
a report concluding that K.R. was incompetent and unlikely to
attain competency in the foreseeable future, the People filed a
motion to appoint their own expert to evaluate K.R. The court
granted the motion, and on April 20 signed an order to allow the
expert, Dr. Kelli Ward, to examine K.R. On April 22, the court
granted a defense motion for its own expert, Dr. David Contreras,
to evaluate K.R. Ward went to juvenile hall on April 26 to
examine K.R., but he refused to speak with her on advice of
counsel. K.R.’s attorney objected to the examination on the
grounds that he had not received notice of the court’s order, and
that the prosecutor had not specified the time, place, manner,
and scope of the examination, as required by section 709. At a
hearing on April 29, the court found that although the motion did
not comply with the terms of the statute, K.R.’s attorney had
subsequently been provided with the necessary information. The
court ordered the examination to go ahead.
Ward examined K.R. on May 9, 2022. She conducted
several tests on K.R. that the previous experts had not employed.
In addition, Ward did not use the Juvenile Adjudicative
Competence Interview (JACI), a test that all of the previous
experts had employed. Ward concluded that K.R. was competent
to stand trial, and that he had been malingering, or feigning a
developmental disability, in order to avoid going to trial. In
minor delay in the filing of the petition has prejudiced the People,
and the writ was timely with regard to the motion to dismiss
pursuant to section 709, we will exercise our discretion to address
the issues surrounding the expert’s evaluation on the merits.
20
reaching this conclusion, Ward relied on several apparent
inconsistencies in K.R.’s behavior, as well as on tests
administered by Ward herself and by prior evaluators.
Ward noted that in recorded jailhouse conversations10 with
a fellow inmate, K.R. appeared to understand a great deal about
the justice system. He knew that he could be held for no more
than 72 hours without being charged with a crime, worried that
he might be charged as an adult because he was 18 years old at
the time of his arrest, and knew to exercise his Miranda rights to
avoid giving the police information. He believed he could beat
the case because O.J. Simpson had been acquitted even though
the police discovered blood on his clothing. He also told the other
inmate that he was considered “retarded,” and that if he could
not beat the charges by other means, he would use the Regional
Center—where juveniles are diagnosed with developmental
disabilities—as a fallback to fight the case. Ward also reviewed
recordings of phone calls between K.R. and his mother,11 in
10 At oral argument, K.R.’s attorney acknowledged having
received the transcripts of the recordings from this Perkins
operation (see Illinois v. Perkins (1990) 496 U.S. 292 [110 S.Ct.
2394, 110 L.Ed.2d 243] (Perkins)) in discovery at an earlier stage
of the case. The court-appointed experts who examined K.R.
initially and after six months of remediation seemingly did not
have access to these transcripts, however, as apparently neither
the prosecutor nor defense counsel provided them to those
experts.
11Ward stated that she received recordings of
approximately eight phone calls, two of which she included in her
report. The two calls described in Ward’s testimony and report
appear to have been outgoing calls from juvenile hall recorded
21
which K.R. reported what had happened in court that day,
suggesting that he understood the proceedings. K.R. knew that
he would be sent home if the court ultimately found him
incompetent. According to Ward, K.R.’s behavior in these
recordings indicated that he was capable of a level of planning
and thinking inconsistent with his previous diagnoses.
Ward also pointed to test results that she believed were
indicative of malingering. One of the previous evaluators
administered a memory test designed to screen for malingering.
K.R. took the test three times and scored well within a range
indicating malingering. His scores were consistent with those
someone could achieve by choosing answers at random. On
another occasion, when attempting a test requiring him to put
blocks together to form a shape, K.R. appeared to perform the
test correctly at first, then took the blocks apart and rearranged
them incorrectly. Ward believed K.R.’s inconsistent performance
on cognitive tests was also likely due to malingering. In
elementary school, K.R. had scored a 92, in the average range, on
a cognitive assessment test, but when he was administered an IQ
test at age 14 during his first juvenile delinquency proceedings,
his score dropped to 52. Ward administered another IQ test
during her evaluation, on which K.R. scored a 67. According to
Ward, unless K.R. had suffered brain damage or other significant
shortly after court hearings on December 2 and December 16,
2021. Contreras, the defense expert, stated that he listened to
recordings of 13 phone calls. It is not clear from the record when
the other calls took place, nor when the prosecution obtained the
recordings of them. Thus, we cannot determine whether it would
have been possible to provide recordings of any calls to either of
the previous court-appointed experts.
22
trauma between tests, variations of that magnitude could only be
explained by “motivational issues.”
Ward concluded that K.R. was able to understand and
assist his attorney in court proceedings, that he did not suffer
from a developmental disability, and that he was competent to
stand trial.
The defense expert, Contreras, reviewed the same phone
recordings and jail transcripts but reached the opposite
conclusion. He acknowledged that these transcripts “showed that
[K.R.] had awareness of what was potentially going on in his
case,” but this was not sufficient to establish competency.
Contreras noted that in the phone calls, K.R. often seemed not to
remember details about what had happened in court that day. In
addition, in the recordings K.R. seemed to genuinely want to
learn about his case, something Contreras viewed as inconsistent
with malingering. To have maintained a charade of ignorance
over the entire course of the case “would reflect a level of
sophistication that would be vastly inconsistent with past
educational records, psychological testing, and previous
behavioral observations.”
The juvenile court did not agree with all of Ward’s
conclusions. In particular, the court found that K.R. did suffer
from an intellectual disability, “particularly as it applies to his
ability to process learning a language.” But the court found the
jail recordings persuasive, indicating that K.R. understood the
way the court system worked and his rights within it. On that
basis, the court found that K.R. was competent to assist his
counsel and understand the proceedings.
23
2. The Examination Was Not Contrary to the Terms of
Section 709
Two different subdivisions of section 709 provide for
evidentiary hearings. Subdivision (c) addresses the initial
determination of the minor’s competency. It states that, unless
the parties stipulate that the minor is incompetent, “[t]he
question of the minor’s competency shall be determined at an
evidentiary hearing.” Subdivision (h)(1) provides for a second
evidentiary hearing after six months.12 A third provision,
subdivision (b)(6), allows “[t]he district attorney or minor’s
counsel [to] retain or seek the appointment of additional qualified
experts who may testify during the competency hearing.”
K.R. contends that the parties are allowed to appoint their
own experts only at the initial evidentiary hearing. We disagree.
Nothing in the statute suggests that different evidentiary
hearings should proceed by different rules. To the contrary,
section 709, subdivision (h)(1) states that “[t]he provisions of
subdivision (c) shall apply at this stage of the proceedings.” K.R.
notes that the provision allowing the parties to appoint their own
experts does not appear in subdivision (c), but rather in
subdivision (b)(6). Because most of the provisions in subdivision
(b) describe the expert’s role at the initial competency hearing,
12 In this case, the evaluation by a prosecution expert took
place in the context of a third competency hearing near the end of
the one-year remediation period. As we explain above (see
Discussion, part A, ante), section 709 implicitly allows for such
hearings to occur. In the absence of explicit instructions from the
Legislature, we assume the rules applicable to six-month
hearings under subdivision (h)(1) also apply to subsequent
competency hearings.
24
and because subdivision (h)(1) does not explicitly mention
subdivision (b), K.R. argues that the People’s right under
subdivision (b)(6) to employ an expert to examine a minor does
not apply at a subsequent hearing. Although K.R. does not say
so, the logic of this argument, if accepted, would also read section
709 to bar a juvenile from retaining his or her own expert after
the initial competency hearing.
This argument attempts to parse the text of the statute too
finely. Section 709, subdivision (h)(1), in stating that “[t]he
provisions of subdivision (c) shall apply,” implies that the rules
for proceedings under subdivision (c), including those pertaining
to the role of experts, also apply. Furthermore, subdivision (b)(6)
states that the parties may retain their own experts to “testify
during the competency hearing,” without specifying the first
competency hearing only. The other provisions in subdivision (b)
appear primarily aimed at defining the qualifications and
conduct of appointed experts at the first competency hearing, but
there is no reason they would not also apply to experts who
testify at subsequent hearings.
We note the circumstances of this case suggest that the
appointment of a party’s own expert can sometimes be more
useful at a later hearing than at the initial hearing. Issues
surrounding a minor’s competency that were not initially
apparent may surface several months later. In a similar
situation in a case involving competency proceedings for an adult
defendant, the court in Baqleh v. Superior Court (2002) 100
Cal.App.4th 478 rejected applying the text of the statute
narrowly to bar an examination by the prosecution’s expert. The
defendant argued that because the statutes did not explicitly
allow for the prosecution’s expert to examine the defendant, no
25
examination was permitted. (Id. at p. 489.) The court disagreed:
“Considering that a party that wished to dispute the opinion of a
court-appointed expert would be unable to do so effectively
without the use of its own expert, the absence of an express
statutory restriction on the use of such experts renders it highly
implausible that the Legislature intended any such restriction.”
(Id. at p. 490.) The same logic counsels in favor of allowing the
parties to retain their own experts to examine the minor and
testify at all evidentiary hearings in competency proceedings for
minors.
3. The People Were Not Dilatory in Seeking to Appoint
their Own Expert
K.R. contends that the trial court erred by allowing the
remediation period to be extended as a result of the People’s
expert’s examination of K.R. We disagree. As we explained
above (see Discussion, part B, ante), the court is not required to
dismiss a case immediately when the remediation period expires
without a finding that the minor has attained competency. In
this case, there is no indication that the prosecution waited an
unnecessarily long time before seeking to retain an expert to
examine K.R., nor that the expert’s evaluation unduly delayed
the case.
K.R. proposes no standard for judging whether a request to
appoint an expert has come too late. In the absence of any
statutory limitation on the time to appoint an expert, we must
defer to the discretion of the juvenile court in setting a limit, and
in this case we perceive no abuse of that discretion. The People
first sought to retain their expert on April 8, 2022, the day after
the court’s appointed expert, Dr. Oona Appel, testified that, in
her opinion, K.R. was incompetent and unlikely to attain
26
competency within the foreseeable future. The prosecution might
have anticipated the need to retain its own expert sooner—Appel
filed her report with the court in late February, with an update
on March 8—but the prosecutor may have recognized that she
needed to retain her own expert only after examining Appel at
the hearing on April 7. Nearly a month of litigation ensued over
the question of whether Ward, the People’s expert, should be
allowed to examine K.R., but even so, Ward managed to conduct
her examination and file her report within a few days, just before
the May 13 end of the remediation period. The court most likely
would have issued its final ruling on K.R.’s competency sooner,
except that the judge assigned to the case recused himself from
the case during Ward’s testimony on May 18 after realizing that
he was acquainted with one of the percipient witnesses.
To be sure, the prosecutor might have been able to reduce
some of the delays in the case by requesting to appoint a
prosecution expert sooner, or by providing the transcripts of the
Perkins operation to Appel. But this does not mean the juvenile
court abused its discretion by allowing the appointment of a
prosecution expert in April 2022.
4. The People’s Failure to Comply with the Civil
Discovery Act when Appointing its Expert Did Not
Prejudice K.R.
When the People intend to appoint an expert to examine a
minor, they must first “petition[ ] the court for an order pursuant
to the Civil Discovery Act (Title 4 (commencing with Section
2016.010) of Part 4 of the Code of Civil Procedure).” (§ 709, subd.
(b)(6); see also Baqleh v. Superior Court, supra, 100 Cal.App.4th
at p. 491 [holding that the Civil Discovery Act applies to
examinations in adult competency hearings].) The relevant
27
section of the Civil Discovery Act for this purpose is Code of Civil
Procedure section 2032.310, which provides that when a party
seeks to conduct a mental examination, it must file a motion
“specify[ing] the time, place, manner, conditions, scope, and
nature of the examination, as well as the identity and the
specialty, if any, of the person or persons who will perform the
examination. The motion shall be accompanied by a meet and
confer declaration under [s]ection 2016.040.” (Code Civ. Proc.,
§ 2032.310, subd. (b).)
We agree with K.R. that the People in this case failed to
comply with the statute. On April 8, 2022, the People filed their
motion seeking to retain an expert to evaluate K.R., but did not
include a meet and confer declaration or any of the information
regarding the examination specified in Code of Civil Procedure
section 2032.310. On April 20, the court signed an order
instructing the probation department and K.R. to allow the
expert to examine K.R., but K.R.’s attorney told the court that he
was not aware of the order until Ward went to the juvenile hall to
conduct the examination, and K.R. called him. K.R.’s attorney
instructed K.R. not to participate in the examination, and the
court held a hearing to resolve the matter. At the hearing, the
court granted the motion to allow the People’s expert to examine
K.R., even though the prosecutor never filed a motion that
complied with the Civil Discovery Act.
If the juvenile court erred by granting the motion in these
circumstances, however, the error was harmless.13 Although the
13 Because K.R.’s claim is based solely on the application of
state statutes, we review for harmless error under the Watson
standard. (People v. Epps (2001) 25 Cal.4th 19, 29.) That is, he
28
People’s motion was defective, K.R.’s attorney was able to learn
the relevant information and challenge the scope of the
evaluation before it occurred. The prosecutor gave K.R.’s
attorney a copy of Ward’s curriculum vitae before the hearing,
and K.R.’s attorney spoke with Ward about the tests she planned
to conduct. Afterward, he acknowledged that Ward “does seem
qualified pursuant to the statute,” and that “she’s perfectly
acceptable as an evaluator in this kind of case.” K.R. argues that
the prosecutor’s disclosure was insufficient because Ward told his
attorney about “certain tests that she would possibly administer,”
but did not say exactly which tests she would use “because it
depended . . . on how the evaluation was going.” Ward’s answer
seems reasonable in light of the complexities of a psychological
exam, and we have no reason to believe she would have been able
to produce a more complete answer if the People’s motion had
complied with the Civil Discovery Act.14
must show that “it is reasonably probable that a result more
favorable to the appealing party would have been reached in the
absence of the error.” (People v. Watson (1956) 46 Cal.2d 818,
836.)
14 The court’s effort to ameliorate the inadequacies of the
prosecutor’s motion distinguishes this case from Baqleh v.
Superior Court, supra, 100 Cal.App.4th 478. In Baqleh, as here,
the prosecution failed to comply with the Civil Discovery Act in
seeking to employ an expert to evaluate an incompetent
defendant. The court granted the defendant’s writ petition and
blocked the evaluation because, “Among other things, the order
permits unspecified individuals to examine petitioner at times
and places of their choosing with respect to matters that may be
unrelated to his competence to stand trial.” (Baqleh, supra, at
p. 492.)
29
K.R. argues that if the motion had complied with the Civil
Discovery Act, it would have revealed that Ward did not intend to
use the JACI during the examination. The superior court’s
protocols for juvenile competency proceedings state that when a
panel expert examines a juvenile, the JACI “shall be used unless
its use is contraindicated.” (Protocol, supra, at p. 4.) We disagree
that Ward’s failure to use the JACI was a valid basis for
challenging her examination of K.R. The court protocols “may
serve as useful guidance concerning the placement, detention,
and treatment of minors found incompetent in delinquency
proceedings. But [they do] not independently give rise to any
claim for relief because [they do] not by [themselves] have any
binding force of law. (In re Albert C. (2017) 3 Cal.5th 483, 492.)
Second, by their own terms, the protocols require use of the JACI
in examinations by panel experts, and they do not purport to
apply to experts retained by one of the parties. There is no
reason to believe the court would have required Ward to use the
JACI in her examination if the issue had been presented.
K.R. also objects to Ward’s employment of “interrogation” of
K.R. in her evaluation. In making this argument, K.R. refers to a
section of Ward’s testimony in which she stated, “one of the
things that I always ask people that I’m evaluating for
competency is, ‘what do you say happened?’ ” Ward recounted
that when K.R. responded to this question, “he said he didn’t do
it. He didn’t kill anybody, which is an alternative explanation for
his behavior. And he also says he had no memory of anything
that happened that day.” There is no indication that Ward asked
K.R. anything more about his participation in the alleged
offenses, and we are aware of nothing else in the record that
would constitute an interrogation. K.R. cites no authority to
30
support his claim that Ward’s question was improper. To the
contrary, the Supreme Court has recognized that “determining a
defendant’s mental competency requires an assessment of the
defendant’s ability to understand the nature of the proceedings
and to assist counsel in conducting a defense. ([Pen. Code,]
§ 1367, subd. (a).) To make this assessment, the mental health
expert will want to evaluate the defendant’s ability to discuss the
facts of the case, even though the defendant’s guilt of the offense
charged is not relevant to the inquiry.” (People v. Pokovich (2006)
39 Cal.4th 1240, 1251.) Questions from a prosecution expert
about the crime in the course of a mandatory evaluation do not
violate the defendant’s privilege against self-incrimination so
long as “the defendant’s statements during the examination are
inadmissible for any purpose at trial.” (Id. at p. 1252.) We see no
reason a different rule would apply in juvenile delinquency
proceedings.
At the end of the hearing where the court ordered Ward’s
examination to proceed, the court stated that, “The time, place,
manner, conditions, and scope of the examination have now been
discussed with the parties on the record, as have the expert’s
qualifications and proposed scope of examination. This reality
provides the court with some assurances that K.R.’s statutory
rights under the civil discovery statute have been duly
considered.” The court’s assessment seems generally accurate,
even if the prosecutor did not fulfill the requirements of section
709, subdivision (b)(6) in filing her motion.
When Ward testified, K.R.’s attorney cross-examined her
extensively. In addition, K.R.’s own expert, Contreras, responded
to Ward’s report and explained why he believed Ward was wrong.
These responses were apparently effective. In explaining its
31
ruling that K.R. was competent to stand trial, the court stated
that it disagreed with Ward’s conclusion that K.R. did not have
an intellectual disability. The court did not rely on Ward’s
evaluations and test results. Instead, what “tip[ped] the scale for
the court” was listening the recordings of K.R. speaking with
fellow inmates and with his mother, in conversations indicating
that he understood the court proceedings and “that he could use
his eligibility as a regional center consumer to get the case
dismissed.” The record does not show that if the People’s motion
had complied with the Civil Discovery Act, or even if Ward had
not examined K.R. at all, there is a reasonable probability that he
would have attained a better outcome.
DISPOSITION
The petition for writ of mandate is denied.
CERTIFIED FOR PARTIAL PUBLICATION
WEINGART, J.
We concur:
CHANEY, J.
BENDIX, Acting P. J.
32