People v. R.V. , 61 Cal. 4th 181 ( 2015 )

Filed 5/18/15
IN THE SUPREME COURT OF CALIFORNIA
In re R.V., a Person Coming )
Under the Juvenile Court Law. )
____________________________________)
) S212346
THE PEOPLE, )
) Ct.App. 4/3 G046961
Plaintiff and Respondent, )
) Orange County
v. ) Super. Ct. No. DL034139
)
R.V., )
)
Defendant and Appellant. )
____________________________________)
A minor who is the subject of a wardship petition under Welfare and
Institutions Code1 section 601 or 602 has, like an adult facing criminal
prosecution, a due process right not to be tried while mentally incompetent.
Section 709 establishes procedures for juvenile courts to follow so as to ensure
that minors are not subject to adjudication while their competency is impaired.
We decide two issues in this case; first, whether under section 709 a minor
is presumed competent and bears the burden of proving otherwise by a
preponderance of the evidence and, second, what is the proper standard for
1 All further unlabeled statutory references are to the Welfare and Institutions
Code.
reviewing on appeal a challenge to the sufficiency of the evidence supporting the
juvenile court‟s determination that the minor was competent to proceed.
Section 709 is silent regarding the presumption of competency and
allocation of the burden of proof, but we find that the most straightforward reading
of the statute‟s text is that the provision contains an implied presumption of
competency. This understanding of section 709 is further supported by the
legislative materials surrounding that statute‟s enactment, which show that
lawmakers intended the juvenile courts to continue to apply to minors the adult
competency scheme‟s presumption of competency and allocation of the burden of
proof to the party claiming incompetency.
We conclude furthermore that, like a challenge to the sufficiency of the
evidence supporting the verdict in an adult competency proceeding, a claim of
insufficient evidence to support a juvenile court‟s determination in a competency
proceeding is reviewed deferentially under the substantial evidence test. In the
present matter, the evidence before the juvenile court consisted solely of the court-
appointed expert‟s report and testimony, and the materials on which the expert
based his opinion, that 16-year-old R.V. was incompetent to stand trial. In these
circumstances, we review the juvenile court‟s determination by asking whether the
weight and character of that evidence is such that the juvenile court could not
reasonably have rejected it.
Having viewed the evidence presented in the case in the light most
favorable to the juvenile court‟s determination of competency, as we must,
we nonetheless conclude that the court could not reasonably have rejected the
qualified expert‟s compelling, well-supported, and unequivocal opinion that minor
was not competent to proceed to trial.
The Court of Appeal concluded, to the contrary, that the juvenile court‟s
reasons for declining to accept the expert‟s opinion were supported by substantial
2
evidence in the record, and upheld the judgment below. Accordingly, the Court of
Appeal‟s judgment is reversed.
I. BACKGROUND
On a weekday morning in March 2012, officers from the La Habra Police
Department responded to a 911 call reporting that a juvenile was threatening
family members with a knife. Jose Cruz, who resided with minor, minor‟s
stepsibling, and minor‟s mother, told police that he had awakened minor for
school around 7:00 a.m. Minor became angry and starting throwing things, saying
he did not want to go to school. Cruz argued with minor, warning him that he was
going to miss his bus. In response, minor clenched his fists and told Cruz, “I‟m
going to fuck you up,” then continued to throw and kick things around the living
room. When Cruz told minor to calm down, minor held out a knife and said he
would kill Cruz if he called the police. According to Cruz, minor did not move
toward him with the weapon.
Minor‟s mother confirmed that minor had been throwing things around the
living room, and told police that she saw him knock a small television set to the
floor. According to minor‟s mother, minor moved from the living room to the
bedroom and started yelling, “I want a house. I want my own space.” He warned
his mother, “Don‟t come close to me. I have a knife.” Minor‟s mother saw that he
had a small silver knife in his hand.
Javier Naranjo, the family‟s landlord, also spoke with the officers. He told
them that he had entered the residence after hearing the sound of something
breaking and saw minor kick a DVD player in the living room. He also overheard
minor arguing with Cruz and threatening to stab him with a knife. When Naranjo
likewise told minor to calm down, minor threatened to kill him as well. Naranjo
then saw minor go into his bedroom and stab a bed three times.
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Minor complied with the officers‟ order to raise his hands in the air. As
minor was being handcuffed, he mentioned that the knife, a multitool with a two-
inch blade, was in his front right pocket. Minor explained to one of the officers
that he was upset and trying to scare his mother, and indicated that he had trouble
with his parents. According to that officer‟s report, minor appeared to have a
difficult time understanding the officer‟s questions and seemed confused about the
incident.
All three witnesses reported to police that minor had psychological
problems. His mother indicated that for the past four weeks he had not taken his
medication, Abilify. Cruz explained that minor is “different every day” and “with
each episode he gets worse.” Minor was taken into custody and transported to a
juvenile detention facility.
Three days after the incident, the Orange County District Attorney filed a
section 602 petition to declare minor a ward of the juvenile court. The petition
alleged that minor committed two misdemeanor counts of brandishing a deadly
weapon (Pen. Code, § 417, subd. (a)(1)), and one misdemeanor count of
vandalism (Pen. Code, § 594, subds. (a), (b)(2)(A)). About three weeks later,
defense counsel expressed a doubt regarding minor‟s competency to stand trial. In
accordance with statutory procedures, the court determined there was substantial
evidence raising a doubt as to minor‟s competency, suspended proceedings, and
appointed a forensic psychologist, Haig J. Kojian, Ph.D., to evaluate minor. (See
§ 709, subd. (a).) Although the court also ordered minor released on the home
supervision program pending the competency hearing, minor was returned to
juvenile detention 10 days later for violating the conditions of his release.
Dr. Kojian‟s nine-page report concluded that minor presently was not
competent to stand trial. Although defense counsel offered to submit the question
of competency on the basis of Dr. Kojian‟s written report, the prosecutor
4
expressed concern that Dr. Kojian had not administered any diagnostic tests to
minor and requested a hearing at which Dr. Kojian could be questioned. The court
granted the request.
At the hearing held one week later, Dr. Kojian explained, consistently with
his written report, the basis for his conclusion that minor was not competent to
stand trial. At the conclusion of the hearing, the court expressed its view that the
law presumes minor is competent and places on him the burden of proving
incompetency by a preponderance of the evidence. The court then ruled that
minor had not met his burden of proof, found minor competent to stand trial, and
ordered the reinstatement of proceedings.
Immediately after the court‟s competency determination, minor waived his
various rights and entered a “slow plea,” submitting the matter to the court for
adjudication based on the police report. The court found the allegations in the
wardship petition to be true, declared minor a ward of the juvenile court, and
placed him on probation.
The Court of Appeal affirmed the judgment. It first agreed with the
juvenile court that a minor is presumed competent and bears the burden of proving
by a preponderance of the evidence that he or she is not competent to be
adjudicated under the juvenile court law. Applying a substantial evidence
standard of review, the Court of Appeal upheld the juvenile court‟s determination
that minor was competent to proceed and affirmed the judgment.
This court granted minor‟s petition for review.
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II. DISCUSSION
A. Presumption of competency and allocation of the burden of proof in
proceedings to determine juvenile competency under section 709
We briefly review the law regarding competency to stand trial and some of
the legal developments that preceded the enactment of section 709. This history
guides our interpretation of the statute.
1. Overview of the law predating section 709
The constitutional right to due process of law prohibits the trial of a
mentally incompetent criminal defendant. (People v. Medina (1990) 51 Cal. 3d
870, 881; Drope v. Missouri (1975) 420 U.S. 162, 172-173.) Due process
principles further require trial courts to employ procedures to guard against the
trial of an incompetent defendant. (People v. Hale (1988) 44 Cal. 3d 531, 539;
People v. Pennington (1967) 66 Cal. 2d 508, 518; Pate v. Robinson (1966) 383
U.S. 375, 377.) Under Dusky v. United States (1960) 362 U.S. 402 (Dusky), the
inquiry into a defendant‟s competency to proceed focuses on whether the
defendant “ „has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding — and . . . a rational as well as factual
understanding of the proceedings against him.‟ ” (Id. at p. 402 (the Dusky
standard).)
The constitutional prohibition against trial of an incompetent defendant and
the requirement of procedures to prevent trial from occurring under those
circumstances are mirrored in Penal Code section 1367 et seq. Similar to the
Dusky standard, state law provides that a defendant is incompetent if he or she “is
unable to understand the nature of the criminal proceedings or to assist counsel in
the conduct of a defense.” (Pen. Code, § 1367, subd. (a).)
Under statutory procedures for determining a criminal defendant‟s
competency to stand trial, the defendant is presumed competent unless proved
6
incompetent by a preponderance of the evidence. (Pen. Code, § 1369, subd. (f);
People v. Medina, supra, 51 Cal.3d at p. 881.) On its face, the statutory scheme
does not expressly impose the burden of proof on any specific party. Rather, the
presumption of competency operates to place the burden of proof on the party
claiming the defendant is incompetent. (See Evid. Code, §§ 605, 606; People v.
Rells (2000) 22 Cal. 4th 860, 867, 868.)
Penal Code section 1367 et seq., by its terms, applies to criminal
prosecutions, not to juvenile court proceedings. In James H. v. Superior Court
(1978) 77 Cal. App. 3d 169 (James H.), however, the Court of Appeal held that the
juvenile had a due process right to a competency adjudication as part of a section
707, subdivision (b), proceeding to determine his fitness to be dealt with under the
juvenile court law. (James H., supra, at pp. 174-176.) The Court of Appeal
reasoned that its conclusion was compelled, in part, by the high court‟s decision in
In re Gault (1967) 387 U.S. 1, which held that a juvenile facing possible loss of
liberty pending the outcome of a delinquency proceeding is entitled to the same
“ „essentials of due process and fair treatment‟ ” (id. at p. 30) as defendants in
adult criminal proceedings, including the right to effective counsel. (James H.,
supra, at pp. 173-174; see In re Gault, supra, at pp. 30-31, 35-42.)
The Court of Appeal in James H. acknowledged the absence of existing
statutory procedures for juvenile competency determinations. It concluded,
however, that the juvenile court has inherent authority to conduct such hearings.
(James H., supra, 77 Cal.App.3d at pp. 175-176.) As the Court of Appeal
observed, juvenile courts routinely improvise procedures to meet changing
constitutional requirements while awaiting legislative clarification. (Id. at p. 176.)
In this regard, at the time of the James H. decision, juvenile courts appear to have
been making use of adult competency procedures in wardship proceedings under
sections 601 and 602. (See, e.g., In re Ramon M. (1978) 22 Cal. 3d 419, 430,
7
fn. 14 [noting the People‟s concession that “the protective reach of Penal Code
section 1368 extends to section 602 proceedings in juvenile court”].) The
James H. decision likewise fashioned a Penal Code section 1368-like procedure
for juvenile courts making competency determinations. The procedure required
the court to suspend proceedings and conduct a competency hearing in the event it
entertained a doubt regarding the juvenile‟s capacity or ability to cooperate with
his or her attorney. With regard to the definition of incompetence, the James H.
decision advised juvenile courts either to borrow the formulation in Penal Code
section 1367 or to use the test set forth in the high court‟s decision in Dusky,
supra, 362 U.S. 402. (James H., supra, at pp. 176-177; see Timothy J. v. Superior
Court (2007) 150 Cal. App. 4th 847, 857-858 (Timothy J.).) The decision did not
address the presumption of competency or burden of proof.
In 1999, the Judicial Council added former rule 1498 to the California
Rules of Court in order to establish statewide procedures for conducting a hearing
to determine the competency of a juvenile subject to a wardship proceeding under
section 601 or 602. The rule was intended to, and largely did, conform to the
procedures described in the James H. decision and established as the definition of
competency an abbreviated version of the Dusky standard.2 (Advisory Com. com.,
23 pt. 3 West‟s Ann. Codes, Rules (2005 ed.) foll. rule 1498(d), p. 630; see
Timothy J., supra, 150 Cal.App.4th at pp. 858, 859.) It also authorized, but did not
require, the court to appoint an expert to evaluate the juvenile‟s competency to
proceed. (Cal. Rules of Court, former rule 1498(d)(1).)
2 Effective January 1, 2007, California Rules of Court, former rule 1498 was
amended in ways not relevant here and was renumbered rule 5.645. The portion
of the renumbered rule relating to competency to stand trial appears in rule
5.645(d).
8
Subsequent to the adoption of California Rules of Court, former rule 1498,
the Court of Appeal in Timothy J., supra, 150 Cal. App. 4th 847, held that the rule
permitted a finding of incompetence arising from the minor‟s developmental
immaturity. This construction of former rule 1498 distinguished the juvenile
competency standard from Penal Code section 1367, subdivision (a), which
requires a showing that the adult defendant‟s incompetence arose from either a
mental disorder or developmental disability. (Timothy J., supra, at pp. 858-861.)
In Tyrone B. v. Superior Court (2008) 164 Cal. App. 4th 227 (Tyrone B.), the Court
of Appeal held that, notwithstanding the permissive language of the rule, the
juvenile court must appoint an appropriate expert to evaluate the minor when the
minor‟s counsel expresses a doubt regarding the minor‟s competency and the court
finds substantial evidence raises a doubt in this regard. (Id. at p. 231 [construing
rule 5.645(d), the current version of the rule].)
A decade after the adoption of California Rules of Court, former rule 1498,
the Legislature enacted section 709, codifying some of the standards and
procedures that had been established in the rules of court, and modifying or adding
others consistently with the holdings in decisions such as Timothy J., supra, 150
Cal. App. 4th 847, and Tyrone B., supra, 164 Cal. App. 4th 227. The Legislature
also provided for the Judicial Council‟s continued involvement in this area by
expressly delegating to that body the task of developing and adopting rules
regarding the special qualifications an expert must possess in order to be appointed
by the court to evaluate a minor‟s competency. (Stats. 2010, ch. 671, § 1.)
2. Section 709
Section 709 begins by describing the mechanisms by which the issue of
competency arises. The statute provides in relevant part that “[d]uring the
pendency of any juvenile proceeding, the minor‟s counsel or the court may
9
express a doubt as to the minor‟s competency.” (§ 709, subd. (a).) Like the
juvenile competency procedures adopted in the Rules of Court, section 709 uses
the Dusky standard to define competency. The statute does not employ an
abbreviated form of the standard, however, and establishes the inquiry as whether
the minor “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.” (§ 709, subd. (a).)
The statute further provides that if the court finds “substantial evidence
raises a doubt as to the minor‟s competency,” the proceedings must be suspended
and the court must order a hearing to determine the minor‟s competency. (§ 709,
subds. (a), (b).) Toward that end, the court is required to “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.” (§ 709, subd. (b).) In
order to qualify for appointment under section 709, the expert must be proficient
in child and adolescent development and familiar with the applicable standards
and criteria for evaluating competency. As mentioned above, the statute assigns to
the Judicial Council the responsibility for developing and adopting rules to
implement such requirements. (Id., subd. (b).)
Section 709 then describes how the court should proceed, depending on the
outcome of the competency determination. “If the minor is found to be
incompetent by a preponderance of the evidence,” the proceedings remain
suspended for a reasonable period of time until it can be determined whether there
is a substantial probability that the minor will attain competency in the foreseeable
future while the court still retains jurisdiction. (§ 709, subd. (c).) If, on the other
10
hand, “the minor is found to be competent, the court may proceed commensurate
with the court‟s jurisdiction.” (§ 709, subd. (d).)3
3 Section 709, subdivisions (a) through (e), reads in full: “(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) Upon suspension of proceedings, the court shall order that the question of the
minor‟s competence be determined at a hearing. 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. The expert shall have
expertise in child and adolescent development, and training in the forensic
evaluation of juveniles, and shall be familiar with competency standards and
accepted criteria used in evaluating competence. The Judicial Council shall
develop and adopt rules for the implementation of these requirements.
“(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, subject to subdivision (h), that may assist the minor in
attaining competency. Further, the court may rule on motions that do not require
the participation of the minor in the preparation of the motions. These motions
include, but are not limited to, the following:
“(1) Motions to dismiss.
“(2) Motions by the defense regarding a change in the placement of the minor.
“(3) Detention hearings.
“(4) Demurrers.
“(d) If the minor is found to be competent, the court may proceed commensurate
with the court‟s jurisdiction.
(footnote continued on next page)
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3. Statutory construction of section 709
In construing the statute, “we are guided by the overarching principle that
our task „ “is to determine the intent of the enacting body so that the law may
receive the interpretation that best effectuates that intent. [Citation.]” ‟ ” (Los
Angeles Unified School Dist. v. Garcia (2013) 58 Cal. 4th 175, 186.) Our analysis
begins with the language of the statute, which “ „generally is the most reliable
indicator of legislative intent.‟ ” (People v. Cornett (2012) 53 Cal. 4th 1261,
1265.) “ „ “ „When the language of a statute is clear, we need go no further.‟
[Citation.] But where a statute‟s terms are unclear or ambiguous, we may „look to
a variety of extrinsic aids, including the ostensible objects to be achieved, the evils
to be remedied, the legislative history, public policy, . . . and the statutory scheme
of which the statute is a part.‟ ” [Citation.]‟ [Citation.]” (People v. Scott (2014)
58 Cal. 4th 1415, 1421; accord, Lopez v. Superior Court (2010) 50 Cal. 4th 1055,
1063.)
Minor argues that section 709 does not place the burden of proving
incompetence on either party. As he points out, section 709, unlike Penal Code
section 1369, subdivision (f), does not expressly provide for a presumption of
competency. The Attorney General, for her part, maintains that section 709
contains an implied presumption of competency and allocates the burden of
rebutting that presumption to the party seeking a determination of incompetency.
We agree with the Attorney General that the most straightforward reading
of the text of section 709 is that minor is presumed competent. Competency
procedures are triggered and proceedings are suspended when “the court finds
(footnote continued from previous page)
“(e) This section applies to a minor who is alleged to come within the jurisdiction
of the court pursuant to Section 601 or 602.”
12
substantial evidence raises a doubt as to the minor‟s competency . . . .” (§ 709,
subd. (a).) If no doubt is raised, or there is no substantial evidence to support such
a doubt, the minor is treated as competent and subject to adjudication of the
wardship petition, and the proceedings simply run their course. Were a minor not
presumed competent, the statute arguably would require an affirmative showing of
competency to proceed. The statutory text also suggests that the party asserting
the minor‟s incompetency bears the burden of proof. Section 709, subdivision (c),
requires the continued suspension of proceedings on a finding of incompetency by
a preponderance of the evidence. By contrast, subdivision (d) provides for the
reinstatement of proceedings “if the minor is found to be competent,” but does not
refer to any standard of proof.
We acknowledge that section 709‟s silence regarding any presumption of
competency and allocation of the burden of proof permits other possible
interpretations of the statutory text. We find, however, that our understanding of
section 709 to include an implied presumption of competency is supported by the
provision‟s legislative history and statutory purpose. (See City of Brentwood v.
Central Valley Regional Water Quality Control Bd. (2004) 123 Cal. App. 4th 714,
722-727 [examining extrinsic aids to determine which party bore the burden of
proving the applicability of exceptions to a mandatory minimum penalty for
violating provisions of a waste water permit when the governing statute was silent
as to which party bore the burden of proof].)
a. Legislative history
The materials considered by lawmakers in connection with the enactment
of section 709, like the language of the statute itself, do not expressly refer to a
presumption of competency or any allocation of the burden of proof. These
materials demonstrate that in enacting section 709, the Legislature intended to
13
more effectively safeguard a juvenile‟s due process right not to be subject to
adjudication while incompetent. Toward that end, the statute parts company with
the adult competency scheme in certain specified ways that tailor the juvenile
competency procedures to better fit the significant developmental differences
between adults and juveniles and the distinctions between the adult and juvenile
criminal justice systems.
At the same time, however, and most significantly, we discern nothing in
the legislative materials from which to infer that lawmakers intended to alter
juvenile courts‟ existing practice of relying on the adult competency provisions in
other respects. Specifically, nothing in the legislative history suggests lawmakers
intended that Penal Code section 1369‟s presumption of competency for an adult
criminal defendant should not apply to a minor facing adjudication as a ward of
the juvenile court under section 601 or 602.
Various legislative materials explained to lawmakers that existing
procedures for determining competency in juvenile proceedings derived from the
adult competency scheme, the Rules of Court, and judicial decisions. According
to the legislation‟s author, whose statement was included in a number of bill
analyses, the overarching problem with the lack of any statutory authority
governing the juvenile court procedures was that this absence created uncertainty
and inconsistent application of the developing case law. (See, e.g., Sen.
Republican Floor Commentaries Assem. Bill No. 2212 (2009-2010 Reg. Sess.) as
amended Aug. 5, 2010, p. 1365; Assem. Com. on Appropriations, Analysis of
Assem. Bill No. 2212 (2009-2010 Reg. Sess.) as amended Apr. 22, 2010, p. 2;
Assem. Com. on Public Safety, Analysis of Assem. Bill No. 2212 (2009-2010
Reg. Sess.) as amended Apr. 8, 2010, p. 3 (Assembly Com. on Public Safety
Analysis).) But the specific concerns regarding the application of adult
competency procedures in juvenile courts were limited to two primary issues for
14
which there existed no corresponding provisions in the adult competency scheme,
namely (1) developmental immaturity as an additional basis for incompetency, and
(2) the need for the appointment of experts who are specially trained in the area of
juvenile development to accurately evaluate the minor. “ „While case law
suggest[s] that courts may rely on adult competency provisions in the absence of a
juvenile statute on competency to stand trial, adult competency statutes do not
address the nuanced application of “developmental immaturity” outlined in case
law relevant to determination of competency in juveniles. . . . . [¶] Moreover,
evaluation of children requires a professional expertise on child development, use
of assessment instruments unique to evaluation of children in order to identify a
mental disorder or developmental disability.‟ ” (Assem. Com. on Appropriations,
supra, at p. 2.) There is no suggestion that the presumption of competency itself
was seen as a problem.
Analyses of the bill prepared for various legislative committees echoed the
author‟s concerns regarding certain specific gaps in the adult competency
procedures, as applied to juvenile competency proceedings. The analyses also
presented the arguments of the bill‟s institutional supporters, who likewise
emphasized the increased understanding of how juveniles “ „think, perceive
situations, and process information.‟ ” (Assem. Com. on Public Safety Analysis,
supra, at p. 9 [quoting an argument by Sacramento County Office of Public
Defender].) The interested stakeholders whose statements in support of the
proposed legislation were conveyed to lawmakers urged them to enact the bill, in
part, to help ensure the constitutional rights of minors accused of crimes. The bill
would protect a minor‟s rights, they argued, by (1) adopting the Dusky standard as
the definition of juvenile competency, (2) codifying the holding of Timothy J.,
supra, 150 Cal. App. 4th 847, that incompetency could be based on a juvenile‟s
developmental immaturity, and (3) requiring that competency evaluations be
15
conducted by experienced, trained experts in the field of child development.
(Assem. Com. on Public Safety Analysis, supra, at pp. 8-11.) Notably, however,
nothing in the stakeholders‟ statements or in the bill analyses themselves
suggested that prior judicial reliance on the adult scheme should be rejected in any
other respect. Nor was there any expression of concern that the adult competency
scheme‟s presumption of competency and associated burden of proof would fail to
adequately protect a minor from being adjudicated while incompetent.
Minor points out that the legislative materials made clear there was no
preexisting statutory authority for resolving doubts regarding competency in a
juvenile proceeding. From this he argues that the Legislature would not have
viewed the adult competency scheme as existing authority for juvenile
competency determinations and, therefore, did not intend that the provisions from
the adult scheme would apply in juvenile proceedings unless specifically so
identified as being appropriate for minors. Minor‟s argument is refuted by the
legislative materials themselves, which informed lawmakers that, under existing
practice, juvenile competency proceedings were governed by a combination of the
adult competency statutes, court rules, and judicial decisions. Contrary to minor‟s
assertion, nothing in the history of section 709‟s enactment suggests that
lawmakers considered the proposed legislation to comprise the sole and complete
authority for juvenile competency determinations, or a wholesale rejection of
procedures derived from the adult competency scheme.
Minor argues furthermore that a presumption of competency for juveniles
ignores the research on adolescent brain development, research that includes
studies showing that many youth lack the capacity to adequately understand the
legal process and assist their attorneys in defending their case. Minor‟s assertion
is essentially a policy argument; indeed, the legislative history described above
demonstrates that lawmakers considering whether to enact section 709 were amply
16
informed about the recent advances in understanding a minor‟s cognitive,
psychological, social and moral development. Such information prompted the
Legislature to add developmental immaturity as a basis for finding incompetency
and to require that competency evaluations be conducted by experts skilled in
child development. It is not inconsistent with the Legislature‟s interest in research
on brain development that lawmakers neither eliminated statutory language
suggesting that competency would be presumed nor specifically rejected Penal
Code section 1369‟s presumption of competency in wardship proceedings.
Rather, it reflects only that the Legislature was seeking to address the concerns
raised by that research in ways other than evidentiary presumptions and their
associated burdens of proof.
Our review of the legislative history of section 709 suggests lawmakers did
not intend to preclude juvenile courts from continuing to apply a presumption of
competency to minors subject to wardship proceedings. Our task is not to
consider whether it is preferable to presume a minor incompetent, subject to proof
by a preponderance of the evidence that he or she is competent to proceed, but
rather to discern what the Legislature intended in this regard. We conclude that
the Legislature did not intend the enactment of section 709 to alter the existing
practice of presuming a minor competent to undergo a wardship proceeding and
imposing on the party claiming otherwise the burden of proving incompetency by
a preponderance of the evidence.
b. Policy
The parties devote a sizable amount of their briefing to the policy
considerations supporting their respective positions regarding the burden of proof
that applies under section 709. The Attorney General argues, for example, that
imposition of the burden of proof on a minor who claims incompetency comports
17
with policy concerns because, like an adult criminal defendant, the minor and
minor‟s counsel have superior access to information relevant to competency. (See
People v. Medina, supra, 51 Cal.3d at p. 885 [concluding that Pen. Code, § 1369,
subd. (f), does not offend due process by imposing on defendant the burden of
proving incompetency, in part, because defendant and defense counsel likely have
better access to the relevant information].) Minor counters that once the juvenile
court finds substantial evidence raising a doubt regarding the minor‟s competency
and appoints an expert to evaluate the minor, the expert has the best access to the
relevant information, which supports allocating the burden of proof to neither
party. Minor and amicus curiae on his behalf argue, alternatively, that imposing
on the prosecution the burden of proving competency by a preponderance of the
evidence advances “the unique and important role that the juvenile justice system
has in rehabilitating juveniles” and the policy of protecting the vulnerability of
children, especially those regarding whom a court has found substantial evidence
raising a doubt as to competency.
We need not resolve the debate regarding the policies supporting allocation
of the burden of proof to one party or the other. Because we have concluded that
section 709 did not effect a departure from the juvenile courts‟ application of the
adult competency scheme‟s presumption of competency to minors in wardship
proceedings, the policy arguments have been resolved by the Legislature. It
necessarily follows from the presumption of competency that the burden of
proving incompetency is borne by the party asserting it. As previously mentioned,
although the adult competency scheme establishes a presumption of competency,
it does not expressly allocate to any party the burden of proof at the competency
hearing. We explained in People v. Rells, supra, 22 Cal. 4th 860, that that statutory
scheme‟s silence on this point is simply a function of the presumption of
competency, which, in accordance with Evidence Code section 606, “operates to
18
impose the burden of proof on the party, if any, who claims that the defendant is
mentally incompetent.” (Rells, supra, at p. 867.) A presumption affecting the
burden of proof is one that has been “established to implement some public policy
other than to facilitate the determination of the particular action in which the
presumption is applied . . . .” (Evid. Code, § 605.) It is well settled that the
presumption of competency comes within the category of policy-based evidentiary
presumptions affecting the burden of proof. (Rells, supra, at p. 868.) Because the
presumption of competency applies in a wardship proceeding, the party asserting
incompetency bears the burden of proving the minor is incompetent to proceed.
Amicus curiae for minor, the Office of the Public Defender, Sacramento
County (Public Defender) argues that maintaining a presumption of competency,
once there has been a prima facie showing that the minor is incompetent, is
inconsistent with California‟s policy of presuming that a minor under the age of 14
years is incapable of committing a crime. Under Penal Code section 26, paragraph
One, before a minor under the age of 14 years may be adjudged a ward of the
juvenile court, the prosecution must prove by clear and convincing evidence that
the minor “appreciated the wrongfulness of the charged conduct at the time it was
committed.” (In re Manuel L. (1994) 7 Cal. 4th 229, 232; accord, People v.
Cottone (2013) 57 Cal. 4th 269, 280.)
We reject the Public Defender‟s argument for several reasons. First,
although some of the same considerations may be relevant to both the question of
competency to stand trial and the question of capacity to commit crime, these
inquiries differ in their purpose and scope. (Timothy J., supra, 150 Cal.App.4th at
p. 862.)
We observe, moreover, that any possible interplay between the presumption
of competency and the presumption of incapacity is limited to cases involving
minors under the age of 14 years. In such cases, the presumption of competency
19
arises only if the minor is subject to adjudication under the juvenile law, that is,
only after the prosecution has overcome the presumption of incapacity with clear
and convincing proof that the minor knew the wrongfulness of his or her conduct.
The presumption of competency presents no inconsistency with a presumption of
incapacity that has been rebutted.
B. Standard of review
The other principal issue we address in this case concerns the standard by
which an appellate court reviews a challenge to the sufficiency of the evidence
supporting the juvenile court‟s determination in a competency proceeding under
section 709. Minor argues for de novo review on appeal. The Attorney General
maintains that the deferential substantial evidence review is appropriate here. As
we explain, we agree with the Attorney General that the standard of review
applicable in this case is the deferential substantial evidence test.
1. Governing standard
Decisions by this court have pointed to a verdict in a competency
proceeding as an example of the type of “mixed question[] of law and fact” to
which a deferential standard of review is applied. (People v. Holmes (2004)
32 Cal. 4th 432, 442; see People v. Cromer (2001) 24 Cal. 4th 889, 895, 900.) In so
doing, we have drawn on the reasoning of Thompson v. Keohane (1995) 516 U.S.
99, 113-114, which also pointed to such a determination as an example of a
primarily fact-dependent issue that warrants deference in federal habeas corpus
proceedings. (See 28 U.S.C. § 2254(d).) These precedents describe several
factors that help distinguish lower court rulings that are reviewed deferentially
from those that require independent review by the appellate court. First,
deferential review is appropriate when the lower court‟s determination, as with a
ruling on competency, is based upon its “ „first-person vantage‟ ” and, “to a
20
significant extent, on „ “first-hand observations made in open court,” ‟ which that
court itself is best positioned to interpret.” (People v. Ault (2004) 33 Cal. 4th 1250,
1267; see People v. Cromer, supra, at p. 901; Thompson v. Keohane, supra, at
p. 114.) Deferential review of a lower court‟s ruling such as the determination of
competency is proper, moreover, because such a determination is an “individual-
specific decision” that is “unlikely to have precedential value.” (Thompson v.
Keohane, supra, at p. 114.) When a legal rule “acquire[s] content only through
application,” independent review is indicated, as deference to the trial court‟s
conclusions prevents the appellate court from carrying out its role to “maintain
control of, and to clarify, the legal principles.” (Ornelas v. United States (1996)
517 U.S. 690, 697; see People v. Cromer, supra, at p. 896.) Deference is
appropriate, however, when the lower court‟s determination is “highly
individualized” (Cromer, supra, at p. 901) and would not likely result in an
appellate opinion elucidating rules of general applicability. (See Thompson v.
Koehane, supra, at p. 114, fn. 14.)
We conclude that the deferential standard of review that applies to an adult
criminal defendant‟s challenge to the sufficiency of the evidence supporting a
verdict in a competency determination (People v. Samuel (1981) 29 Cal. 3d 489,
505; People v. Marshall (1997) 15 Cal. 4th 1, 31; People v. Frye (1998) 18 Cal. 4th
894, 1004), likewise applies to a minor‟s challenge to the sufficiency of the
evidence supporting a juvenile court‟s determination regarding competency under
section 709. Like the trier of fact in an adult competency trial, the juvenile court
often makes its determination by conducting an evidentiary hearing, observing
first hand not only the testifying witnesses but also the minor‟s behavior and
interactions with counsel.
Amici curiae on minor‟s behalf, Youth Law Center and Pacific Juvenile
Defender Center, argue in favor of de novo review. They assert that, unlike in
21
adult court, where a jury may be called upon to weigh witness testimony, the
juvenile courts decide the question of competency primarily on the documentary
record of the minor‟s impairment and the expert‟s report, which renders
deferential review unnecessary. Amici curiae provide no affirmative support,
however, for their assertion that determinations in juvenile competency
proceedings generally do not involve live testimony, and the case law seems to
suggest otherwise. (See, e.g., In re Alejandro G. (2012) 205 Cal. App. 4th 472, 476
[both of the appointed experts who evaluated the minor prepared reports and
testified at the hearing]; In re Christopher F. (2011) 194 Cal. App. 4th 462, 466
[the expert repeated in court his conclusion that the minor was not competent to
proceed].) In any event, 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.
A juvenile court‟s determination regarding competency also is like a verdict
in a competency proceeding involving an adult criminal defendant in that both
involve an “individual-specific decision” that is “unlikely to have precedential
value.” (Thompson v. Keohane, supra, 516 U.S. at p. 114.) Guided by the same
well-settled legal definition of competency, both the juvenile court and the trial
court draw their 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. Neither
determination involves the type of legal rule that acquires “ „ “meaning only
through its application to the particular circumstances of a case,” ‟ ” such as the
Fourth Amendment‟s doctrines of probable cause and reasonable suspicion, for
which independent appellate review, rather than deferential review, is appropriate.
(People v. Cromer, supra, 24 Cal.4th at p. 896.)
22
Minor contends that independent review is nonetheless required for a
juvenile court‟s determination regarding competency because of the importance of
the constitutional right at stake and the consequences of an error by the juvenile
court. As minor points out, a juvenile court‟s erroneous determination that the
juvenile is competent could subject the juvenile to an adjudication while
incompetent in violation of his or her due process right. The same constitutional
considerations apply in adult proceedings, however, yet on appeal the deferential
substantial evidence standard of review applies.
2. Nature of the substantial evidence test for reviewing juvenile court
determinations under section 709
We have concluded that an appellate court applies a deferential standard
when reviewing a claim that the record does not support the juvenile court‟s
determination in a competency proceeding. Some features of the so-called
substantial evidence test will apply to all such challenges on appeal. For example,
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. (See
People v. Samuel, supra, 29 Cal.3d at p. 505; People v. Marshall, supra, 15
Cal.4th at p. 31; People v. Frye, supra, 18 Cal.4th at p. 1004.)
There is, however, no single formulation of the substantial evidence test for
all its applications. We observe that in the present matter, the evidence before the
court consisted of Dr. Kojian‟s report and testimony, and the written materials on
which he based his opinion that minor was not competent to stand trial. The
prosecutor did not present any affirmative evidence of competency. Nor was he
obligated to do so. As we have explained, under section 709, minor is presumed
competent and had the burden of proving incompetency by a preponderance of the
evidence. Even if the prosecution presents no evidence of competency, a juvenile
23
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.‟ ” (People v. Samuel, supra, 29 Cal.3d at p. 498.) 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. (See Samuel, supra, at pp. 498-506 [examining the facts
on which the defense experts relied and the reasoning by which they arrived at
their opinions to conclude that the jury could not reasonably have rejected the
defense evidence of incompetence].)
This court has used such a formulation of the substantial evidence test in
two closely analogous decisions. The defendant in People v. Drew (1978)
22 Cal. 3d 333, had entered a plea of not guilty by reason of insanity, which he had
the burden of proving by a preponderance of the evidence. At the sanity trial, both
of the court-appointed psychiatrists concluded that the defendant was insane at the
time of the crime, and the prosecution presented no evidence. (Id. at pp. 338-339,
350-351.) In addressing the defendant‟s claim that the jury‟s verdict of sanity was
not supported by substantial evidence, we explained that under the circumstances
of that case, the question on appeal was “whether the evidence contrary to that
finding is of such weight and character that the jury could not reasonably reject it.”
(Id. at p. 351.) The record supported the jury‟s verdict, we concluded, because the
jury reasonably could have found that the psychiatrists failed to “present sufficient
material and reasoning to justify” their opinions. (Id. at p. 351.) We pointed out,
for example, that although both experts had diagnosed the defendant as suffering
from latent schizophrenia that was characterized by assaultive behavior, neither
expert explained why this diagnosis would lead to the conclusion that the
24
defendant met the definition of insanity such that he did not understand that his
assault on the police officer victim was wrong. (Id. at pp. 350-351.)
A similar formulation of the substantial evidence test appears in People v.
Coogler (1969) 71 Cal. 2d 153. The capital defendant in that case had presented a
diminished capacity defense to a charge of first degree deliberate and premeditated
murder. (See Pen. Code, former § 1127b.) At the guilt phase of trial, three mental
health expert witnesses testified for the defense that the defendant suffered from a
disassociation reaction brought on by mental illness at the time of the killings, and
each expert expressed the opinion that the defendant could not have acted with
premeditation and deliberation. (Coogler, supra, at pp. 162-165.) The
prosecution did not present any expert witnesses of its own. (Id. at pp. 166.) The
jury convicted the defendant of first degree murder and ultimately returned a
verdict of death. On automatic appeal, the defendant argued that in light of his
experts‟ testimony, the trial court erred by instructing the jury on first degree
deliberate and premeditated murder. Reviewing the evidence presented in the
case, this court held to the contrary that substantial evidence supported the court‟s
instruction. We explained that a jury properly could reject the experts‟
conclusions because of the material on which the experts relied. (Id. at p. 166-
167.) For example, we observed, a jury properly could reject the opinion of the
psychiatrist who had relied upon the defendant‟s own description of previous
behaviors and limited recollection of the crimes, but had failed to consider the
police reports or preliminary hearing transcripts. (Id. at pp. 162, 167.)
The Court of Appeal in the present matter applied a substantial evidence
standard when reviewing the juvenile court‟s competency determination. It erred,
however, when describing the contours of that standard. Quoting verbatim from
the decision in In re Christopher F., supra, 194 Cal.App.4th at page 471, footnote
6, the Court of Appeal characterized the applicable standard as a review of “ „ “the
25
whole record to determine whether any rational trier of fact could have found the
essential elements of the crime . . . beyond a reasonable doubt,” ‟ ” stating further
that “ „ “the record must disclose substantial evidence to support the verdict . . .
such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” ‟ ”4
It is evident from both the language of the above quoted standard, and the
decision from which that language was drawn, that the Courts of Appeal in In re
Christopher F. and the present matter were reciting the standard for reviewing a
challenge to the sufficiency of the evidence supporting a verdict of guilt. (See In
re Christopher F., supra, 194 Cal.App.4th at p. 471, fn. 6, quoting verbatim from
People v. Zamudio (2008) 43 Cal. 4th 327, 357, which applied the quoted standard
to the appellant‟s challenge to the sufficiency of the evidence supporting his
robbery conviction.) A standard of review that inquires whether the record
showed substantial evidence from which “a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt” has no application in a challenge to
the sufficiency of the evidence supporting a finding of competency, for either a
juvenile or an adult criminal defendant. A competency determination does not
4 The Court of Appeal stated as follows: “We review a juvenile court‟s
finding of competence for substantial evidence. „The same standard governs our
review of the sufficiency of evidence in juvenile cases as in adult criminal cases.
“[W]e review the whole record to determine whether any rational trier of fact
could have found the essential elements of the crime . . . beyond a reasonable
doubt. [Citation.] The record must disclose substantial evidence to support the
verdict — i.e., evidence that is reasonable, credible, and of solid value — such that
a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence.” ‟ ([In
re] Christopher F., supra, 194 Cal.App.4th at p. 471, fn. 6.)”
26
constitute a finding that the allegations in a wardship petition are true, or that a
defendant is guilty of a crime. (Centeno v. Superior Court (2004) 117
Cal. App. 4th 30, 43 [“competency proceedings are civil in nature and collateral to
the determination of defendant‟s guilt and punishment”].) Nor does a competency
determination involve proof beyond a reasonable doubt. (§ 709, subd. (c)
[incompetence is proved by a preponderance of the evidence]; Pen. Code, § 1369,
subd. (f) [same].) As explained above, the proper formulation of the substantial
evidence test for reviewing a challenge to the sufficiency of the evidence
supporting a juvenile court‟s competency determination in a case such as this one,
in which the evidence before the court consists of the opinion of a qualified expert
concluding that the minor is incompetent to proceed and the materials on which
the expert relied, inquires whether the weight and character of the evidence of
incompetency was such that the juvenile court could not reasonably reject it.5
C. Application of the standard of review
Under section 709, a minor is incompetent to proceed in a wardship
adjudication “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.” (§ 709, subd. (a).) We have
concluded, ante, in part II.B., that an appellate court presented with a challenge to
the sufficiency of the evidence supporting a juvenile court‟s competency
determination in a case like this one — in which the only evidence before the
court was the court-appointed expert‟s opinion that the minor was incompetent
5 We disapprove In re Christopher F., supra, 194 Cal. App. 4th 296, to the
extent its articulation of the standard of review is inconsistent with our opinion.
27
and the materials on which the expert relied — reviews the court‟s determination
deferentially, evaluating the record in the light most favorable to the court‟s
determination and upholding it if the appellate court concludes that the court could
reasonably reject the evidence of incompetency. Applying that standard here, we
conclude that the court could not reasonably have rejected Dr. Kojian‟s
compelling, well-supported, and unequivocal opinion that minor was not
competent to proceed to trial.
1. Evidence before the juvenile court
a. The expert’s written report
As previously mentioned, the court appointed forensic psychologist Haig J.
Kojian, Ph.D., to evaluate minor‟s competency to stand trial. (See § 709,
subd. (b).) In preparing his report, Dr. Kojian conducted a clinical interview with
minor and spoke with minor‟s mother by telephone. He also reviewed minor‟s
school records and the responding officers‟ detention reports in the present matter.
Based on these sources, Dr. Kojian concluded that minor was not presently
competent to stand trial.
Dr. Kojian‟s report first discusses the results of his mental status
examination of minor. According to the report, minor‟s presentation appeared
impaired and there was evidence of an altered thought process. Minor‟s speech
and movements were slow and deliberate, and his gait was rigid. Moreover, his
affect appeared incongruent with thought content. For example, he smiled for no
reason and out of context. Dr. Kojian noted that minor stated several times that he
was confused and repeatedly changed his responses to questions. He also told
Dr. Kojian that he was depressed.
When Dr. Kojian indicated that he would like to administer some
psychological tests, minor refused, saying, “I just don‟t feel I need to do this.”
28
Dr. Kojian ultimately managed to assess minor with an abbreviated version of the
“Rey 15-Item Test” for ruling out malingering, to which minor responded
appropriately.
Dr. Kojian reported that minor was unable to provide any meaningful self-
history. For example, although minor correctly reported he was living with his
mother, stepfather, and stepsibling at the time he was detained, he also said that he
had a good relationship with his parents. Minor denied using alcohol or drugs,
which Dr. Kojian found unconvincing. He also denied being in special education
classes, which contradicted school records. Although minor reported having been
suspended from school once or twice, he could not remember why.
At various points during the evaluation, minor told Dr. Kojian that he was
“confused right now.” Dr. Kojian reported that, when asked to elaborate, minor
“wasn‟t making much sense.” Specifically, minor indicated that his mother was
confusing him and that he “didn‟t know her or her side of the story.” Minor also
stated, “Hard times . . . problems.” When asked to explain, minor indicated he had
difficulty with talking, saying, “Just the language . . . in school though” and “little
problem.”
Dr. Kojian‟s telephone interview with minor‟s mother disclosed that
although minor had met developmental milestones on a timely basis, he had been
diagnosed with “mental problems.”
Dr. Kojian devoted most of his report to the issues relevant to a finding of
competency, specifically, whether minor is capable of consulting with counsel,
assisting in his defense, and understanding the nature of the charges and the
proceedings. (See § 709, subd. (a).) Minor‟s responses to Dr. Kojian‟s questions
suggested to him that minor “was confused and didn‟t know what was going on.”
Some of minor‟s confusion concerned the reason for his detention.
Specifically, when minor was asked why he was in custody he first stated it was
29
for “being on the porch,” an apparent reference to his being returned to juvenile
detention for violating the terms of his home supervision program (HSP) release.
(Minor was aware that he had been detained for several weeks, had been released
on HSP, and was then returned to custody.) When Dr. Kojian clarified that he was
asking about the original detention, minor indicated he was in custody for “not
understanding,” “for being confused,” and “for his safety.” In response to
Dr. Kojian‟s suggestion that these were not crimes, minor said, “Disturbing the
peace.”
Minor then offered another reason for his being in custody, stating that he
had been detained because “it was thought he was using drugs,” which he denied.
When Dr. Kojian questioned minor further on the subject, minor indicated that a
prior drug matter had been resolved “by me understanding it.” Minor correctly
identified the earlier drug case as a misdemeanor, and stated that misdemeanors
were less serious than felonies “such as disturbing the peace.”
According to Dr. Kojian‟s report, minor correctly described some of the
aspects of the legal proceedings against him but was confused about, or ignorant
of, others. For example, minor knew that a misdemeanor is less serious than a
felony, but he did not know the difference between a plea bargain and trial. Minor
also expressed some confusion over whether or not he had an attorney. He did not
know counsel‟s name and did not understand counsel‟s duty and function. Nor
was he aware of the prosecutor‟s function. Minor did know that the judge “makes
the decisions,” but he did not know what types of decisions those were. He also
understood being guilty meant he was “responsible,” but he believed that the
determination of guilt depended on “whether he attends school.”
When Dr. Kojian returned to the subject of the specific charges in the case,
minor first indicated he was being charged with disturbing the peace, a crime
different from those alleged in the wardship petition. In response to Dr. Kojian‟s
30
suggestion that that was not the charge, minor said, “messing up my house,”
“playing with mom and dad,” “for not being serious,” and “for not going to
school.” Dr. Kojian hinted to minor that the charges involved a knife, prompting
minor to offer various guesses, including “Me risking myself and not being
serious?,” “Me messing up?,” and “For me being confused?”
As previously mentioned, Dr. Kojian‟s assessment of minor‟s competency
included information gleaned from the detention reports and minor‟s school
records. He noted specifically minor‟s mother‟s statement to responding officers
that minor recently had stopped taking his medication and that “with each episode
he gets worse.” He found significant a notation by one of the officers that minor
seemed to be having trouble understanding the questions posed to him and
appeared “confused.” Dr. Kojian also found useful information in what he
referred to as minor‟s IEP (individualized education plan), for example, that minor
had been receiving special education services due to a mood disorder. Written
assessments by some of minor‟s teachers included comments such as “He acts like
he is under the influence” and he “[does] not seem to know what is going on at all
in school.”
Based upon his observations and assessment of minor, his interview with
minor‟s mother, and his review of the identified records and reports, Dr. Kojian
concluded that minor was impaired and that two underlying issues were causing
minor‟s impairment. Specifically, he found that minor was both “clearly suffering
from depression” and that minor‟s thinking and cognitive functioning was “clearly
disrupted.” Dr. Kojian acknowledged that because he did not administer any
standardized tests to minor, he could not determine the etiology, or source, of the
impaired cognitive functioning. He did not believe the impairment was
developmental. Rather, he was of the view that minor either could be in the early
stages of schizophrenia or other psychotic disease, or that he could be using more
31
drugs or different drugs than earlier reported, which has resulted in organic
impairment.
In concluding remarks, Dr. Kojian wrote that “it appears from all accounts”
that minor was not competent to stand trial at the present time. He found that
minor was “legitimately confused” about what is occurring and that “in his current
condition does not have the capacity to meaningfully and rationally cooperate with
counsel to prepare a defense or to assist counsel in a meaningful and rational
manner.” In light of minor‟s confused and vacillating responses during the
interview, Dr. Kojian also questioned whether he fully understood the nature of
the proceedings against him. Dr. Kojian acknowledged that perhaps the charges
against minor had been reduced to disturbing the peace. In his view, however,
minor‟s statements, for example, his assertion that his drug case had been resolved
“because he, now, understands,” suggest he is confused about the present charges
and the proceedings.
b. Expert’s testimony at the competency hearing
Minor‟s counsel offered to submit the question of minor‟s competency
solely on the basis of Dr. Kojian‟s report, without an evidentiary hearing. The
prosecutor indicated, however, that because Dr. Kojian had not administered any
tests to minor, he wanted to question him in this regard. The court granted the
prosecutor‟s request and held a hearing in late April 2012, at which Dr. Kojian
was the only witness called to testify. Before questioning commenced, the court
granted minor‟s counsel‟s request to take judicial notice of two sets of documents
in the case file, a probation modification petition and the officers‟ detention
reports.
32
Dr. Kojian testified regarding his qualifications and the substance of his
written report. He indicated that his forensic psychology practice spanned over
20 years, during which time he had evaluated thousands of juveniles.
Much of Dr. Kojian‟s testimony echoed his written report, and he
confirmed that he “had no doubt” minor had an “impairment of some sort.”
Regarding the sources of that impairment, he reiterated his observation that minor
appeared to be depressed and his conclusion that minor‟s depression could be
affecting his functioning. He noted in this regard that the medication minor had
been prescribed, Abilify, is used to treat mood disorders. He also repeated his
finding that minor‟s appearance, affect and vacillating responses to his questions,
coupled with the statements by minor‟s teachers, parents, and the officers who
detained him, suggested impaired cognitive functioning, and he reaffirmed his
view that minor was “legitimately confused.” Dr. Kojian testified, consistently
with his report, that minor‟s difficulty explaining what he was being charged with,
his erroneous explanations as to why he was in custody, and one responding
officer‟s observation that the minor appeared confused, led him to believe minor
could not consult with counsel and did not fully understand what was happening.
At the hearing, Dr. Kojian described in more detail the records that he had
reviewed in reaching his opinion that minor was incompetent. Specifically, he had
examined the wardship petition, the detention reports, a May 2011 child guidance
letter from minor‟s therapist, Arthur Montes, a licensed clinical social worker, and
a January 2011 psychoeducational report by a school psychologist at minor‟s high
school. According to Dr. Kojian, the school records presented a consistent theme
that minor is very slow, his testing is low, and that “something is wrong with
him.”
The prosecutor‟s questioning of Dr. Kojian focused mostly on whether
minor‟s refusal to be tested affected Dr. Kojian‟s opinion that minor was
33
incompetent. Dr. Kojian indicated that administering tests would not have
changed his opinion. He stated, “If I wasn‟t 100 percent sure of my opinion I
wouldn‟t have written it in my report the way I wrote it and signed my name.”
With regard to the issue of malingering, Dr. Kojian explained that a discrepancy
between a minor‟s presentation and other information available to the evaluator,
such as comments by parents and teachers, “raises a red flag that someone is
„faking,‟ ” but that no such discrepancy existed here. Dr. Kojian also testified that,
in his view, minor did not seem to be malingering. He indicated that he had given
minor a brief, “malingering-type” test and that minor “didn‟t fire on any of those
questions.”
The prosecutor also questioned Dr. Kojian regarding the passage of time
between completion of his report in mid-April 2012, and his testimony at the late
April hearing, asking whether it was possible minor could have regained
competency during that nine-day period of time. Dr. Kojian explained that
competency is not a static condition, and that if it seemed that minor was
improving, he might need to be reevaluated. He expressed the view, however, that
no doctor can say how a subject is, on the particular day that the doctor testifies
regarding an earlier assessment. When pressed by the prosecutor whether his
opinion is that minor, as he was then sitting in the courtroom, was incompetent to
stand trial, Dr. Kojian indicated that on the day he signed his report he was of the
opinion that minor was incompetent but that he did not know what minor‟s
functioning was on the day of the hearing.
During closing argument by the parties, defense counsel recalled that the
court had had to read the delinquency petition to minor “word by word.” For his
part, the prosecutor emphasized his concerns regarding Dr. Kojian‟s failure to
administer any tests to minor and suggested the court appoint a second expert to
evaluate him.
34
c. Documentary evidence
After hearing Dr. Kojian‟s testimony and closing argument by the parties,
but before announcing its ruling, the court called a recess in order to review
Dr. Kojian‟s written report and the two documents in the case file that it had
agreed to judicially notice. One of the documents in the file was a February 2012
probation modification petition recommending the termination of wardship
jurisdiction over minor that stemmed from an incident in 2010. The modification
petition included several attachments, one of which was a March 2011
psychoeducational report by the school psychologist at minor‟s high school that
was prepared in connection with a “manifestation determination,” which
Dr. Kojian had relied upon in forming his opinion. That report is summarized
below.
The purpose of a manifestation determination is to decide whether the
misbehavior of a special education student with an IEP is related to his or her
disability. If it is determined that the student‟s violation of school rules is a
manifestation of the disability, the student is entitled under state and federal law to
special disciplinary rules for students with disabilities. (See Ed. Code, § 48915.5;
20 U.S.C. § 1415(k).) The psychoeducational report at issue here indicated that
minor had been a special education student since 2006 and was then receiving
services in the “mild to moderate” program.
The report covered a number of topics, including minor‟s medical and
educational history, observations by minor‟s teachers, the results of various
standardized assessments of minor conducted in January 2011, and an analysis of
whether the assessment results or other information established that minor met the
eligibility requirements for certain specified disabilities that would entitle minor to
additional special education services.
35
With regard to minor‟s medical history, the report indicated that he had
been diagnosed with a mood disorder for which he was being treated by Arthur
Montes. The report concluded that minor met the special education eligibility
criteria for disability under the category of “other health impairment” because his
diagnosed mood disorder was adversely affecting his educational performance.
The report‟s discussion of minor‟s educational history indicated he had
excessive unexcused absences and had earned very few units toward graduation.
It also showed a fairly lengthy disciplinary record, including an incident that
occurred about seven weeks before the manifestation determination report, in
which minor was found to be under the influence of marijuana and in possession
of a Prozac pill. In connection with that incident, he was arrested for possessing a
prescription drug without the prescription and released to his mother. The
behavior that appears to have triggered the manifestation determination report
occurred six weeks later, when minor was suspended for five days after receiving
from another student a backpack containing two stolen cellular telephones.
The report included questionnaire results and comments by many of
minor‟s teachers. Several teachers indicated minor was quiet, inattentive, and
unproductive. His “auto-tech” teacher remarked that at times minor showed some
mechanical interest but “seems lost . . . most of the time.” Minor‟s English
teacher reported that minor “acts like he is under the influence” and “does not
seem to know what is going on at all in school.”
In summarizing the standardized assessment results, the report indicated
that although minor scored in the average range in visual processing of
information, he fell within the “low” or “very low” range in numerous, if not most,
other areas. His overall intellectual ability, for example, was very low, as was his
comprehension, long-term retrieval, processing speed, and short-term memory.
36
Although the report indicated that minor met the special education
eligibility criteria for disability under the category of “other health impairment,” it
showed he did not meet eligibility criteria under any other category, including
“special learning disability,” “speech and language impaired,” and “intellectually
disabled.”
The report ultimately found that the behavior at issue was a manifestation
of minor‟s disability and concluded that his low cognitive and comprehension
skills “can make it difficult for him to process the differences between right and
wrong” and that “he can be easily influenced to do wrong.” The report indicated
that its assessment would be reviewed by the IEP team and used to determine
appropriate placement and services for minor.
The second document attached to the probation modification petition was a
May 2011 letter from minor‟s therapist, Arthur Montes. The purpose of Montes‟s
letter was to request an “intake assessment” to determine if minor had a
developmental disability. Referring to the manifestation determination‟s
psychoeducational report as an “I.E.P.,” Montes pointed to its findings regarding
minor‟s subaverage intellectual functioning and extremely low cognitive and
comprehension skills as grounds justifying an intake assessment.
2. The court’s ruling
The court began its ruling by describing the evidence it had considered in
making its determination. Specifically, the court indicated it had considered
Dr. Kojian‟s testimony and written report, the detention reports, and the probation
modification petition, which included the manifestation determination‟s
psychoeducational report and the letter from therapist Arthur Montes. The court
observed that it was not obligated to adopt Dr. Kojian‟s opinion that minor was
37
incompetent to proceed. It found instead that minor was competent and had failed
to sustain his burden of showing otherwise by a preponderance of the evidence.
The court took a short recess after announcing its ruling and then went back
on the record to briefly explain the grounds on which it had reached its decision.
With regard to the documentary evidence, the court indicated it had disregarded
Montes‟s opinion that minor was developmentally delayed because that opinion
was simply a “piggyback” of the manifestation determination report, which, the
court observed, was not “a full determination of what was needed for the I.E.P.”
The court noted that school personnel were “still going to be in the process of
determining appropriate placement and services.”
The court remarked that Dr. Kojian “appeared . . . to have extensive
experience” but it nonetheless rejected his opinion that minor was unable to assist
his counsel. The court explained that it reached that conclusion, in part, because
Dr. Kojian “was not able to fully determine whether there was malingering and
was unable to complete the [„Rey 15-Item Test‟].”
The court also was unpersuaded by Dr. Kojian‟s conclusion that minor‟s
statements during the interview indicated confusion. The court found to the
contrary that minor‟s characterization of the charges against him were appropriate
responses given that minor had been released on HSP but failed to comply with its
conditions, and in light of what minor allegedly had done. In the court‟s view,
“messing up my house and not going to school . . . at least was alleged to have
been the genesis of what ended up in the charged offenses.” The court observed
furthermore that minor knew that a misdemeanor was less serious than a felony
and understood, correctly, that an earlier offense involving possession of drugs at
school had been taken care of.
The other reason cited by the court for rejecting Dr. Kojian‟s opinion was
that the manifestation determination report had not “completely relied” on the
38
“I.E.P. testing” in reaching its conclusion. Specifically, the court found it
significant that the report‟s author believed minor‟s “cognitive and adaptive delays
may have been drug induced” and noted that testing carried out in 2009 did not
indicate the same cognitive and adaptive delays shown by the more recent testing.
3. The court could not reasonably reject the expert’s conclusion that
minor was not competent to proceed
We have concluded that an appellate court evaluating a challenge to the
sufficiency of the evidence supporting a determination of competency under
section 709 views the record in the light most favorable to the finding and, in a
case like the present matter, asks whether the weight and character of the evidence
of incompetency is such that the juvenile court could not reasonably reject it.
Applying this formulation of the substantial evidence test here, we conclude that
the court could not reasonably have rejected Dr. Kojian‟s opinion that minor was
not competent to stand trial.
The juvenile court could not reasonably call into question the material on
which Dr. Kojian based his opinion that minor was not competent to proceed. The
expert‟s evaluation of minor included an assessment of minor‟s appearance, affect
and speech, and a comprehensive interview covering various aspects of minor‟s
background, the reasons for minor‟s detention, and minor‟s understanding of his
present situation. Dr. Kojian interviewed minor‟s mother regarding minor‟s
mental health history, and reviewed statements by teachers and responding
officers regarding minor‟s behavior in school and at the time of his arrest,
respectively. He also examined school records, which included minor‟s
disciplinary history, his grades, and the results of recent standardized testing for
cognitive functioning, intellectual ability, and other skills. Nothing in the record
suggested that Dr. Kojian‟s evaluation had overlooked a significant indicator of
competency. And nothing indicates that his inquiry focused on something other
39
than the correct competency standard, namely, minor‟s present ability to assist
counsel in preparing a defense and a rational understanding of the charges and
proceedings.
We observe furthermore that Dr. Kojian expressed little reservation
regarding his opinion that minor was incompetent. The Attorney General points to
certain testimony to suggest Dr. Kojian‟s opinion was tenuous. Read in context,
however, Dr. Kojian‟s statement that he “believed to a reasonable degree of
psychological certainty that [his] opinion was probably correct” and that “it
appears . . . that this young man is not competent to stand trial at this time”
demonstrated an attempt to express his opinion within professional parameters,
and not to suggest any reservations in his views. (Cf. People v. Marshall, supra,
15 Cal.4th at p. 32 [expert admitted his opinion that the defendant was
incompetent “lacked „a level of reasonable medical certainty‟ ”].)
One of the court‟s principal reasons for rejecting Dr. Kojian‟s opinion was
that the expert had not “fully determine[d]” whether minor was malingering and
“was unable to complete” the Rey 15-Item Test. On this record, however, the
expert‟s inability to administer a standardized test for malingering did not
undermine the reasoning by which he arrived at his opinion. Although the
prosecutor questioned Dr. Kojian at length regarding his failure to administer the
Rey 15-Item Test for malingering, Dr. Kojian concluded that minor was not
malingering and stated he was “100 percent sure” of his opinion notwithstanding
minor‟s refusal to be assessed with objective measures. As he explained, a
discrepancy between a minor‟s presentation during the evaluation and other
information available to the evaluator, such as comments by parents and teachers,
could suggest the minor is faking his or her responses, but no such discrepancy
existed in the present case. Dr. Kojian also indicated that he had given minor a
brief malingering-type test and that minor “didn‟t fire” on any of the questions.
40
This court has long recognized that an expert is “entitled to base his opinion on
observations of, and statements made by, the patient during a routine
psychological interview.” (People v. Stoll (1989) 49 Cal. 3d 1136, 1155.) We
observe that in assessing the strength of an expert‟s opinion, a juvenile court
properly may take into account a minor‟s refusal to be tested with objective
measures. On the record presented here, however, the court could not reasonably
point to Dr. Kojian‟s inability to administer a complete standardized test for
malingering as a reason on which to reject the expert‟s opinion that minor was not
competent to stand trial.
In rejecting Dr. Kojian‟s opinion, the court also pointed to certain
statements by minor that, in the court‟s view, contradicted Dr. Kojian‟s conclusion
that minor was confused. The identified responses were limited and incomplete,
however, and did not provide a reasonable basis on which to reject the expert‟s
opinion.
Minor was aware generally that a misdemeanor was less serious than a
felony, that a judge makes decisions, and that being guilty means he is
“responsible.” The record also shows that when the arresting officer gave minor
his Miranda advisements at the time of his arrest (Miranda v. Arizona (1966)
384 U.S. 436), minor invoked his right to silence. But most of minor‟s answers to
Dr. Kojian‟s questions reflected ignorance of, or confusion regarding, many of the
significant features of a juvenile adjudication. For example, minor could not
describe the functions of defense counsel and the prosecutor, the differences
between a plea bargain and a trial, and the types of decisions that are made by a
juvenile court judge. Minor also was uncertain he was being represented by
counsel and he believed the determination of his guilt depended on “whether he
attends school.”
41
Admittedly, some of minor‟s curious answers as to why he was in custody
were explainable. His initial answer that he was in custody for “being on my
porch” was understandable in light of the fact he originally was allowed to live at
home pending the competency hearing but was returned to juvenile detention
10 days later for violating the conditions of his release pursuant to the Home
Supervision Program, presumably by going outside the residence. And minor‟s
statement that he was being charged with “messing up my house” and “not going
to school” arguably was an accurate reflection of some of the factual
underpinnings of the charges against him, as the court pointed out. But Dr.
Kojian‟s report and testimony indicated that, from the outset, minor seemed to
misunderstand what was meant by a criminal charge. During the interview, when
told that “being confused” and “not understanding” were not crimes, minor said he
was being charged with disturbing the peace. And when informed by Dr. Kojian
that that crime was not the charge, minor again described the charges in vague,
factual terms. Most significantly, as Dr. Kojian observed, minor exhibited no
awareness of the most important facts underlying the charges, namely, that he
allegedly had threatened family members with a knife. On this record, the court
could not reasonably reject the expert‟s opinion on the basis of isolated statements
suggesting minor understood some features of a juvenile proceeding generally, or
on the ground that minor‟s confusion in some respects could be explained.
Nor were any of the other grounds offered by the juvenile court a
reasonable basis for rejecting the expert‟s opinion that minor was incompetent.
The court found that evidence of a possible link between minor‟s drug use and his
significant intellectual and adaptive deficits called into question Dr. Kojian‟s
opinion. Specifically, the court emphasized the portion of the manifestation
determination report indicating (1) that minor‟s significant cognitive and adaptive
delays shown by the most recent testing “may have been drug induced” and
42
(2) that the results of earlier assessments showed minor‟s scores in those areas fell
within average ranges. Our examination of the report, however, discloses that this
cited evidence concerned the question of the minor‟s eligibility for special
education services based on “intellectual disability,” a disability category formerly
referred to as mental retardation. To qualify for special education services under
that category it must be shown that the student‟s significant deficits in intellectual
functioning and adaptive behavior “manifested during the developmental period.”
(Cal. Code Regs., tit. 5, § 3030, subd. (b)(6); see Ed. Code, § 56026, subd. (a).)
The school psychologist who authored the report expressed the view that minor‟s
current, significant deficits in intellectual and adaptive functioning adversely
affected his educational performance. But she concluded nonetheless that minor
did not meet the eligibility criteria for intellectual disability because minor‟s
deficits appeared to have been drug induced and, according to prior testing, had
not arisen during the developmental period.
This evidence was not inconsistent with, nor did it contradict, Dr. Kojian‟s
opinion because his conclusions regarding the conditions causing minor‟s
incompetence were not based on a finding of intellectual or developmental
disability. Rather, Dr. Kojian‟s report to the court expressly stated that one of the
causes of minor‟s incompetency, the impairment of his cognitive functioning, did
not appear to be developmental in nature. And to the extent the evidence cited by
the juvenile court was relevant to the question of minor‟s competency, it
supported, rather than refuted, Dr. Kojian‟s opinion. Dr. Kojian had indicated that
he found two underlying causes of minor‟s incompetency, a mood disorder and an
impairment in minor‟s cognitive functioning. As to the latter condition,
Dr. Kojian believed the impairment was attributable to one of two sources —
either a serious, emerging mental disease such as schizophrenia, or extensive drug
use that had led to organic deficits. That the manifestation determination report
43
attributed minor‟s recently assessed cognitive delays to his use of drugs further
bolstered one of Dr. Kojian‟s theories regarding the etiology of minor‟s impaired
thinking.
None of the other reasons given by the court when explaining why it
declined to accept Dr. Kojian‟s opinion were relevant to an assessment of the
materials and reasoning used by Dr. Kojian in reaching his conclusion that minor
was incompetent. For example, the court indicated it had rejected the belief by
Montes, minor‟s therapist, that minor had a developmental delay because that
opinion simply “piggyback[ed]” on the information provided in the manifestation
determination report. But Dr. Kojian, consistent with the court‟s view of Montes‟s
opinion, had expressed the opinion that minor‟s incompetency was caused, not by
any developmental disability or delay, but rather by either a mood disorder or
substantial impairments in his thought and cognitive functioning.
One final reason for rejecting Dr. Kojian‟s opinion mentioned by the court
was that the manifestation determination report was not a “full” IEP, and that
appropriate placement and services for minor had yet to be determined. Even
assuming that these points constitute a valid criticism of the material on which
Dr. Kojian based his conclusions, the court could not reasonably have relied on
them to reject the expert‟s opinion. The manifestation determination report stated
that minor had been diagnosed with a mood disorder. This diagnosis, however,
was consistent with similar information Dr. Kojian gleaned from other sources.
For example, minor himself had indicated that he was depressed, and Dr. Kojian
had learned from the initial detention report that minor was taking Abilify, which
he knew is typically used for the treatment of mood disorders. Dr. Kojian‟s report
also referenced the portion of the manifestation determination report in which
minor‟s teachers remarked that he seemed confused and impaired. He did so,
however, as further support for his own observations of minor‟s mental status and
44
apparent confusion during the in-person interview. Notably, Dr. Kojian did not
rely on the manifestation determination report‟s summary of the 2011 standardized
testing results, which showed significant intellectual and cognitive deficits, as a
basis for concluding that minor‟s cognitive functioning was impaired. Instead,
Dr. Kojian acknowledged that because of minor‟s refusal to be tested during the
evaluation, he was unable to pinpoint the cause of that impairment. Given
Dr. Kojian‟s minimal reliance on the manifestation determination report in
reaching his conclusions, the court‟s stated concerns regarding the adequacy of
that material did not justify the rejection of Dr. Kojian‟s opinion.
In arguing that the court reasonably could reject the evidence of
incompetency, the Attorney General points to Dr. Kojian‟s testimony “admitting”
that his opinion, although accurate on the day he signed his report, might not
reflect minor‟s mental state on the day of the hearing. We are not persuaded that
this line of questioning undermined Dr. Kojian‟s opinion. An expert‟s written
report necessarily precedes his or her testimony at the competency hearing. On
this record, it is speculative that the time between the completion of the report and
the date of the hearing renders the expert‟s opinion stale. Significantly, there was
nothing in the record suggesting minor‟s mental status had improved in the nine
days between the date of Dr. Kojian‟s report and the hearing. We note moreover
that the court did not reference the cited testimony when explaining the reasons for
rejecting Dr. Kojian‟s opinion.
The court correctly observed that it was not obligated to accept an expert‟s
opinion of incompetency. This court‟s decisions have long recognized the
propriety of rejecting even unanimous expert opinion, such as when, for example,
the experts were unfamiliar with the evidence that would tend to explain the
defendant‟s behavior (People v. Marks (2003) 31 Cal.4th, 197, 219), when the
experts‟ opinions were based solely on a brief interview with the defendant
45
(People v. Marshall, supra, 15 Cal.4th at p. 32), and when the experts‟ opinions
regarding the defendant‟s incompetency were tenuous. (Ibid.) Similarly, in In re
Alejandro G., supra, 205 Cal. App. 4th 472, 480-481, the Court of Appeal agreed
with the juvenile court that the court was under no obligation to accept the experts‟
opinions that the minor was incompetent. In that case, one of the experts found
the minor “ „close to being competent‟ ” and “ „capable of understanding the
proceedings,‟ ” while the other expert had evaluated the minor‟s understanding of
the proceedings by asking him questions pertaining to procedures applicable to
adult criminal trials, not juvenile adjudications. As previously discussed,
however, neither Dr. Kojian‟s evaluation of minor nor his opinion suffered from
similar infirmities.
Amicus curiae National Center for Youth Law has argued that, because of
the highly complex nature of juvenile competency proceedings, juvenile courts
should defer to the opinion of the court-appointed expert unless there is a clear
reason not to do so. We reject the proposition that a court should defer to the
opinion of an expert. “ „To hold otherwise would be in effect to substitute a trial
by “experts” for a trial by [the finder of fact] . . . .‟ [Citation.]” (People v.
Samuel, supra, 29 Cal.3d at p. 498.) We recognize at the same time, however, that
although an expert‟s opinion is not determinative of the question of competency,
such an opinion holds special significance in the juvenile competency setting, as
contemplated by the Legislature. (See In re John Z. (2014) 223 Cal. App. 4th 1046,
1058 [the reports and testimony of experts who have evaluated the minor for
competency are clearly intended to play a central role in the competency
determination under § 709].) Under section 709, the juvenile court must appoint
an expert, specially qualified in the field of child development, when there is
substantial evidence raising a doubt regarding the minor‟s competency. (§ 709,
subds. (b), (c).) The statutory scheme therefore contemplates the court will make
46
its determination whether a minor is competent or incompetent with the expert‟s
specialized knowledge and views in mind. On the record presented in this case,
the court‟s rejection of the expert‟s opinion was made in the absence of
disagreement among qualified experts. When, as here, the expert concludes that
the minor is incompetent but the juvenile court finds flaws in the expert‟s
methodology and reasoning, the court should consider appointing a second expert
to inform the court‟s view that the first expert‟s opinion is inadequate. We
observe that in the present case, when the prosecutor expressed concerns with the
expert‟s failure to administer standardized tests, he suggested that the court
appoint a second expert to evaluate minor.
For the reasons discussed above, we conclude that on the record before us
in this case, the juvenile court could not reasonably have rejected the expert‟s
opinion that minor was not competent to proceed.
47
III. DISPOSITION
Because the Court of Appeal found that the juvenile court‟s reasons for
declining to accept the expert‟s opinion were supported by substantial evidence in
the record and affirmed the judgment, the Court of Appeal‟s judgment is reversed.
CANTIL-SAKAUYE, C. J.
WE CONCUR:
WERDEGAR, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
48
DISSENTING OPINION BY CHIN, J.
I agree with the majority that, under Welfare and Institutions Code section
709,1 a minor is presumed competent and bears the burden of proving otherwise
by a preponderance of the evidence. However, under the deferential standard of
appellate review that applies in light of this conclusion, I would affirm the juvenile
court‟s finding that R.V. was competent. I therefore dissent.
1. The Standard of Review.
The standard of appellate review that applies here follows from (1) the
majority‟s conclusion, with which I agree, that R.V. bore the burden of proving
incompetency by a preponderance of the evidence, and (2) the juvenile court‟s
finding that R.V. failed to sustain that burden.
In evaluating the sufficiency of the evidence on appeal, appellate courts
generally apply the familiar substantial evidence test. Under that test, an appellate
court must view the evidence in the light most favorable to the court‟s judgment,
giving it the benefit of every reasonable inference and resolving all conflicts in its
favor. (Bickel v. City of Piedmont (1997) 16 Cal. 4th 1040, 1053.) The appellate
court must “presume every fact in support of the judgment the trier of fact could
have reasonably deduced from the evidence. [Citation.] If the circumstances
1 All further unlabeled statutory references are to the Welfare and Institutions
Code.
1
reasonably justify the trier of fact‟s findings, reversal of the judgment is not
warranted simply because the circumstances might also reasonably be reconciled
with a contrary finding. [Citation.] „A reviewing court neither reweighs evidence
nor reevaluates a witness‟s credibility.‟ [Citation.]” (People v. Albillar (2010) 51
Cal. 4th 47, 60.)
However, as our courts of appeal have explained, where, as here, the trier of
fact has found that the party with the burden of proof did not carry that burden, “it
is misleading to characterize the failure-of-proof issue as whether substantial
evidence supports the judgment. This follows because such a characterization is
conceptually one that allows an attack on (1) the evidence supporting the party
who had no burden of proof, and (2) the trier of fact‟s unassailable conclusion that
the party with the burden did not prove one or more elements of the case
[citations]. [¶] Thus, where the issue on appeal turns on a failure of proof at trial,
the question for a reviewing court becomes whether the evidence compels a
finding in favor of the appellant as a matter of law. [Citations.] Specifically, the
question becomes whether the appellant‟s evidence was (1) „uncontradicted and
unimpeached‟ and (2) „of such a character and weight as to leave no room for a
judicial determination that it was insufficient to support a finding.‟ [Citation.]”
(In re I.W. (2009) 180 Cal. App. 4th 1517, 1528; see Meister v. Mensinger (2014)
230 Cal. App. 4th 381, 395; Dreyer’s Grand Ice Cream, Inc. v. County of Kern
(2013) 218 Cal. App. 4th 828, 838 [same]; Valero v. Board of Retirement of Tulare
County Employees’ Assn. (2012) 205 Cal. App. 4th 960, 966; Shaw v. County of
Santa Cruz (2008) 170 Cal. App. 4th 229, 279 [same]; Caron v. Andrew (1955) 133
Cal. App. 2d 402, 409.)
Notably, these appellate decisions relied on our decision in Roesch v. De
Mota (1944) 24 Cal. 2d 563. There, after explaining that the trial court had found
that the plaintiffs had failed to sustain their burden of proving a certain fact by a
2
preponderance of the evidence, we stated: “The problem here is not whether the
appellants on the issue . . . failed to prove their case by a preponderance of the
evidence. That was a question for the trial court and it was resolved against them.
The question for this court to determine is whether the evidence compelled the
trial court to find in their favor on that issue. These appellants contend that the
testimony of [their witness] was uncontroverted and that it required a finding in
their favor. It may be assumed that his testimony was uncontradicted and
unimpeached, but it would not necessarily follow that it was of such a character
and weight as to leave no room for a judicial determination that it was insufficient
to support a finding in favor” of the appellants. (Id. at pp. 570-571, italics added.)
The same rules apply where the evidence consists of expert opinion. It is
well established that a trier of fact is “not automatically required to render a
verdict [that] conforms to . . . expert opinion,” even if “unanimous.” (People v.
Drew (1978) 22 Cal. 3d 333, 350; see People v. Samuel (1981) 29 Cal. 3d 489, 498
[trier of fact “is not required to accept at face value a unanimity of expert
opinion”].) “To hold otherwise would be in effect to substitute a trial by „experts‟
for a trial by jury . . . .” (People v. Wolff (1964) 61 Cal. 2d 795, 811.) As we have
explained, “[t]he value of an expert‟s opinion depends upon the quality of the
material on which the opinion is based and the reasoning used to arrive at the
conclusion.” (People v. Marshall (1997) 15 Cal. 4th 1, 31-32.) In other words,
“ „[e]xpert evidence is really an argument of an expert to the court, and is valuable
only in regard to the proof of the facts and the validity of the reasons advanced for
the conclusions.‟ ” (People v. Bassett (1968) 69 Cal. 2d 122, 141.) Thus, as a
general rule, the trier of fact remains free to reject even uncontradicted expert
testimony after considering the expert‟s opinion, reasons, qualifications, and
credibility, so long as it does not act arbitrarily. (People v. McDonald (1984) 37
Cal. 3d 351, 371; People v. Johnson (1992) 3 Cal. 4th 1183, 1231-1232; Foreman
3
& Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 890.) The trier of fact‟s decision in
this regard is binding on an appellate court unless the trier of fact could not, in
light of the record, reasonably reject the expert‟s testimony. (Samuel, supra, at p.
506; Drew, supra, at pp. 350-351.) Under the preceding authorities, the questions
here are whether the juvenile court could not have reasonably rejected Dr.
Kojian‟s opinion and whether the weight and character of the evidence compelled
the court to find that R.V. had sustained his burden to show incompetency.
2. The Evidence Does Not Compel a Finding of Incompetence.
According to the majority, reversal is necessary because the juvenile court
could not reasonably have rejected the opinion of forensic psychologist Haig J.
Kojian that R.V. was not competent to proceed. For reasons that follow, I
disagree.
Under the two prongs of section 709, subdivision (a), it was R.V.‟s burden
to prove by a preponderance of evidence that he lacked either “sufficient present
ability to consult with counsel and assist in preparing his . . . defense with a
reasonable degree of rational understanding,” or “a rational as well as factual
understanding, of the nature of the charges or proceedings against him.”
Regarding the latter prong, in the “Opinion” section of his written report, Dr.
Kojian expressed, not a firm conclusion, but uncertainty, stating that he
“question[ed] whether [R.V.] fully knows or understands what is occurring.”
(Italics added.) He based his uncertainty on the various statements R.V. had made
about the reason for his detention. In his report, after setting forth those
statements, Dr. Kojian stated: “It appeared to me that [R.V.] was confused and
didn‟t know what was going on.” However, the juvenile court disagreed with Dr.
Kojian‟s reasoning, explaining: “Given the statements that the minor had said to
Dr. Kojian and Dr. Kojian interpreted them as confusion, but knowing that the
4
minor had been released on [the home supervision program], and also knowing
what the minor had allegedly done, and [that each] of his responses were
appropriate, such as messing up my house and not going to school, because he had
refused to go to school, which appeared to have been allegedly the — at least was
alleged to have been the genesis of what ended up in the charged offenses.”
Viewing the evidence in the light most favorable to the court‟s decision, and
giving that decision the benefit of every reasonable inference and resolving all
conflicts in its favor, I cannot find that the court unreasonably rejected Dr.
Kojian‟s interpretation.
Moreover, Dr. Kojian‟s testimony at the competency hearing regarding this
prong was at least as equivocal as the statements in his report, if not more so.
When directly asked whether R.V. “lack[ed] a rational [as] well as factual
understanding of the nature of the charges and proceedings against him,” Dr.
Kojian did not reply with a clear or unqualified “yes.” Instead, he replied, “I think
it is limited, yes.” Dr. Kojian‟s testimony that R.V. had a “limited” understanding
did not compel the juvenile court to find that R.V. had proved by a preponderance
of the evidence that he “lack[ed]” the requisite understanding, which is the
standard under section 709, subdivision (a).
Indeed, parts of Dr. Kojian‟s report affirmatively supported the conclusion
that R.V. possessed the requisite understanding. The report observed that R.V.
“knew, in general, the meanings of guilty or not guilty,” that the former “means he
is responsible” and the latter means he “could be released home,” that “the court
makes a decision,” and that “misdemeanors are less serious than felonies.” The
juvenile court expressly mentioned the last of these observations in explaining
why it did not accept Dr. Kojian‟s opinion. Moreover, the record also shows that
when advised of his rights upon his arrest, R.V. invoked his right to silence.
Viewing the evidence in the light most favorable to the court‟s decision, giving
5
that decision the benefit of every reasonable inference and resolving all conflicts
in its favor, the weight and character of Dr. Kojian‟s opinion was not such that the
juvenile court acted unreasonably in finding that R.V. failed to sustain his burden
of proof on the second prong of section 709, subdivision (a).
The majority acknowledges that R.V. invoked his right to silence after
being advised of his rights, that he was aware generally that a misdemeanor was
less serious than a felony, that a judge makes decisions, and that being guilty
means he is “ „responsible.‟ ” (Maj. opn., ante, at p. 41.) The majority also
“[a]dmit[s]” that “some of” R.V.‟s statements about the reasons for his detention
were “explainable,” “understandable,” and, “as the [juvenile] court pointed out,”
an “arguably . . . accurate reflection of some of the factual underpinnings of the
charges against him.” (Maj. opn., ante, at p. 42.) The majority nevertheless
declares that R.V.‟s statements failed to “provide a reasonable basis” for rejecting
Dr. Kojian‟s opinion because they “were limited and incomplete.” (Maj. opn.,
ante, at p. 41.) According to the majority, “most of” R.V.‟s statements “reflected
ignorance of, or confusion regarding, many of the significant features of a juvenile
adjudication,” including the functions of defense counsel and the prosecutor, the
differences between a plea bargain and a trial, and the types of decisions that a
juvenile court judge makes. (Ibid.) The majority also asserts that, according to
Dr. Kojian‟s report and testimony, R.V. “seemed to misunderstand what was
meant by a criminal charge” and “exhibited no awareness of the most important
facts underlying the charges.” (Maj. opn., ante, at p. 42.) “On this record,” the
majority declares, R.V.‟s statements “suggesting” that he “understood some
features of a juvenile proceeding generally” and was not confused about what was
happening did not provide a reasonable basis for questioning Dr. Kojian‟s opinion.
(Maj. opn., ante, at p. 42.)
6
For several reasons, I disagree with the majority‟s analysis. First, as
explained above, insofar as the record shows that Dr. Kojian based his opinion
regarding R.V.‟s confusion on statements that, as the majority “[a]dmit[s],” were
“explainable,” “understandable,” and an “arguably . . . accurate reflection of some
of the factual underpinnings of the charges against” R.V. (maj. opn., ante, at p.
42), the juvenile court could reasonably question Dr. Kojian‟s reasoning. Second,
for reasons explained above, the juvenile court could reasonably conclude that Dr.
Kojian‟s opinion regarding R.V.‟s confusion was far more equivocal and uncertain
than the majority suggests. As noted earlier, in the “Opinion” section of his
report, Dr. Kojian stated that he “question[ed] whether [R.V.] fully knows or
understands what is occurring.” At trial, Dr. Kojian testified, not that R.V. lacked
the requisite understanding, but that he had a “limited” understanding of the nature
of the charges and proceedings against him. Third, although, as the majority
notes, R.V. told Dr. Kojian he did not know what a judge makes decisions about
or what “the duty and function of the DA” are, the majority fails to note that R.V.
also told Dr. Kojian that he had “never thought” about the first question and “had
never had the time to think about” the second. Given this explanation, the juvenile
court could have reasonably questioned whether R.V.‟s asserted lack of
knowledge about certain legal matters, notwithstanding his understanding of other
legal matters, indicated confusion and incompetence. Fourth, and finally, the
majority‟s explanation for concluding that the statements in the record showing
R.V.‟s understanding of the legal process are too “limited and incomplete” to
sustain the juvenile court‟s decision (maj. opn., ante, at p. 41) is inconsistent with
the applicable standard of review, which requires us to view the evidence in the
light most favorable to the juvenile court‟s judgment, to give that judgment the
benefit of every reasonable inference, and to resolve all conflicts in its favor.
Applying this standard, and in light of the preceding discussion, I do not agree that
7
the juvenile court, which itself had the opportunity to observe R.V., acted
unreasonably in rejecting Dr. Kojian‟s opinion.
Regarding the first prong of section 709, subdivision (a), Dr. Kojian stated
in his written report: “I . . . believe that in his current condition [R.V.] doesn‟t
have the capacity to meaningfully or rationally cooperate with counsel in the
preparation of a defense, or to assist counsel in a meaningful or rational manner.”
At the hearing, the juvenile court explained that it did “not accept” Dr. Kojian‟s
opinion on this issue “partly because the doctor was not able to fully determine
whether there was malingering and was unable to complete the Rey . . . test” for
malingering. Significantly, Dr. Kojian‟s report itself provided a basis for the
juvenile court‟s reliance on this consideration in rejecting Dr. Kojian‟s opinion;
the report noted five separate times that R.V. “refused to take any tests,” and
characterized this refusal as “[u]nfortnate[]” four of those times. As specifically
relevant to the malingering issue, Dr. Kojian stated in his report: “I tried a few
times to get him to comply [with my request for testing] but he refused noting „I
just don‟t feel I have to do this.‟ I, even, asked him if he wouldn‟t mind taking
just one, little test (I was trying to give him the REY 15-item to rule out
malingering) but he refused.” After responding to a few “basic items,” R.V.
“refused to answer any other questions and said „I‟m not going to say anything
else. I am just trying to get help.‟ ” If Dr. Kojian believed that R.V.‟s refusal to
take any tests was significant — and it is clear from the statements in his report
that he did — then surely the juvenile court did not act unreasonably in also
finding it significant. (See maj. opn., ante, at p. 41.)
The majority‟s explanation for finding otherwise is unpersuasive. (Maj.
opn., ante, at p. 2.) According to the majority, Dr. Kojian stated during his
testimony that “he was „100 percent sure‟ of his opinion” that R.V. was not
malingering “notwithstanding” R.V.‟s refusal to submit to testing. (Maj. opn.,
8
ante, at p. 40.) However, the record indicates that this statement related, not to
R.V.‟s refusal to take a test for malingering or to Dr. Kojian‟s opinion on that
subject, but to R.V.‟s refusal to take “any cognitive function test.” Later, in
expounding on what made him believe that R.V. “flunked” the statutory
competency test, Dr. Kojian stated rather equivocally, “It didn‟t seem to me that
[R.V.] was attempting to malinger his impairment.” At the end of the direct
examination, when asked specifically about malingering, Dr. Kojian again
equivocally responded, “it didn‟t seem to me to be malingering.” More broadly,
notwithstanding the statement the majority cites, Dr. Kojian later expressed
notably less certainty about his opinion regarding R.V.‟s competence, indicating
that, “to a reasonable degree of psychological certainty,” it was “probably
correct.” To be sure, the majority‟s “context[ual]” reading of the equivocation in
Dr. Kojian‟s remarks — that it “demonstrated an attempt to express his opinion
within professional parameters,” rather than “any reservations in his views” (maj.
opn., ante, at p. 40) — is plausible. But the question here is not how we, as an
appellate court, interpret Dr. Kojian‟s remarks de novo on a cold record, but
whether the contrary interpretation of a juvenile court that actually saw Dr. Kojian
testify and observed R.V. in person is unreasonable. In my view, the statements
the majority cites do not establish that the juvenile court acted unreasonably in
considering a factor that Dr. Kojian himself expressly noted numerous times in his
report — R.V.‟s “unfortunate[]” refusal to submit to testing.
Moreover, in other respects, Dr. Kojian‟s report and testimony furnished
affirmative support for the juvenile court‟s assessment of Dr. Kojian‟s opinion
regarding R.V.‟s ability to assist counsel. At the outset, the report stated that, after
being told of the interview‟s purpose and receiving various advisements — that
the interview was nonconfidential and voluntary and that a report would be sent to
the court for use “in the current matter” — R.V. “noted that he understood the
9
scope and intent of testing and volunteered to be interviewed.” According to the
report, R.V.‟s “grooming and hygiene were intact,” and he “was, largely, oriented
and knew the day, date and location.” R.V. told Dr. Kojian that “[h]e was
involved in counseling and did find it to be helpful.” R.V.‟s mother told Dr.
Kojian that R.V. “was able to meet developmental milestones on a timely basis.”
As previously noted, the report observed that R.V. “knew, in general, the
meanings of guilty or not guilty,” that the former “means he is „responsible‟ ” and
the latter means he “could be released home,” that “the court makes a decision,”
and that “misdemeanors are less serious than felonies.” In a section entitled
“Conclusion and Opinion,” the report stated that R.V.‟s “thinking appeared to be
impaired” (italics added), but then immediately explained that R.V.
“[u]nfortunately . . . [had] refused to take any tests” that would provide “objective
measures” of his functioning and had been “rather disinterested in answering
questions.” It also explained that R.V.‟s apparent cognitive issue did not “appear”
to be “developmental in nature” and might have resulted from drug use.
At the hearing, Dr. Kojian stated that he did not know whether R.V. was
“intellectually impaired.” When asked whether R.V. was “cognitively impaired,”
Dr. Kojian responded equivocally: “My assessment of him was that there was
some type of cognitive process going on that did appear to be evidence for some
type of cognitive impairment.” Dr. Kojian later testified that if R.V.‟s cognitive
issue was “substance induced in nature, then it might self-correct,” that “you don‟t
need to do anything except sit around and wait,” and that “nobody knows” how
long it would take for the effect of the drugs to “wear off.” The district attorney
followed up by asking whether R.V. “could be better” than he had been “16 days
earlier” at the time of the interview. Dr. Kojian first responded, “You‟re correctly
pointing out that competency isn‟t a static variable . . . , so it changes.” After
stating his opinion that R.V. was not competent “[o]n the day” of the interview or
10
the day the report was signed, Dr. Kojian then noted that he was not responsible
for the 16-day gap between the interview and the competency hearing, and stated,
“No doctor can tell how an individual is . . . on the day that they testify on [an]
assessment that they conducted.” The district attorney then explained that he was
asking about the time gap because Dr. Kojian had answered “no” when earlier
asked at the hearing whether, in his opinion, R.V., “sitting here right now, was . . .
competent.” Dr. Kojian, after reiterating his opinion that R.V. was not competent
on the day the report was signed, stated: “I don‟t know what his functioning is as
he sits here today.”
In summary, the record shows considerable equivocation regarding Dr.
Kojian‟s opinion, contains affirmative indications of competence, reveals
justifications for questioning Dr. Kojian‟s reasoning process, and offers a case-
specific reason for questioning the effect on Dr. Kojian‟s assessment of the 16-day
gap between the interview and the competency hearing. Of course, as the
majority‟s discussion demonstrates, there was evidence that could reasonably have
led the juvenile court to accept Dr. Kojian‟s opinion. Indeed, based on that
evidence, were I making the competency determination de novo, like the majority,
I might very well find Dr. Kojian‟s opinion sufficient to sustain R.V.‟s burden of
proof. But, giving proper deference to the juvenile court‟s decision — viewing the
evidence in the light most favorable to the court‟s decision, giving that decision
the benefit of every reasonable inference, and resolving all conflicts in its favor —
I cannot find that the court acted unreasonably in rejecting Dr. Kojian‟s opinion
or that the evidence was of such weight and character as to compel a finding of
incompetence.2
2 The majority appears to lose sight of the applicable standard of review in
proclaiming itself to be “[un]persuaded” that Dr. Kojian‟s opinion was
(footnote continued on next page)
11
Finally, for two reasons, I do not agree with the majority that expert
opinion “holds special significance in the juvenile competency setting,” or that a
juvenile court, upon finding “flaws” in the “methodology and reasoning” of an
expert who finds the minor to be incompetent, “should consider appointing a
second expert to inform [its] view that the first expert‟s opinion is inadequate.”
(Maj. opn., ante, at pp. 46-47.) First, I see no statutory basis for either statement.
Regarding the latter, the majority cites no supporting authority of any kind.
Regarding the former, the majority observes that section 709 requires a juvenile
court to “appoint an expert, specially qualified in the field of child development,
when there is substantial evidence raising a doubt regarding the minor‟s
competency.” (Maj. opn., ante, at p. 46.) However, in adult criminal cases, the
Penal Code requires a court to appoint an expert — sometimes two — if it “has a
doubt about the mental competency of a defendant” (People v. Pokovich (2006) 39
Cal. 4th 1240, 1245), yet expert testimony holds no special significance in such
cases. It is true that section 709, subdivision (b), specifies that the expert
appointed in a juvenile case “shall have expertise in child and adolescent
development, and training in the forensic evaluation of juveniles, and shall be
familiar with competency standards and accepted criteria used in evaluating
competence.” But nothing about that mere specification of expertise confers
“special significance” on an expert‟s opinion in juvenile cases. (Maj. opn., ante, at
(footnote continued from previous page)
“undermined” by the exchange about the 16-day gap between the interview and
the hearing. (Maj. opn., ante, at p. 45.) Under that standard of review, the
relevant question is whether, in light of the testimony, the juvenile court could not
reasonably consider this gap as one factor in determining the weight of Dr.
Kojian‟s opinion. As already explained, on the record here, considering that gap
would not be unreasonable.
12
p. 46.) The majority also cites In re John Z. (2014) 223 Cal. App. 4th 1046 (maj.
opn., ante, at p. 46), but that decision holds only that a juvenile court unsatisfied
with an appointed expert‟s written report may not make a competency
determination without first holding “a formal competency hearing at which [the
expert can] testify concerning his [or her] report” (In re John Z., at p. 1058).3
Here, of course, the juvenile court held such a hearing and made its decision only
after listening to Dr. Kojian‟s testimony.
Second, the majority‟s statements appear to conflict with well-established
principles that the majority expressly reaffirms earlier in the same paragraph: a
juvenile court need not “defer to the opinion of an expert” and “an expert‟s
opinion is not determinative of the question of competency.” (Maj. opn., ante, at
p. 46.) In the context of these well-established principles, what does it mean to
say that an expert‟s opinion has “special significance”? (Maj. opn., ante, at p. 46.)
How does a juvenile court factor this undefined term into its analysis? Why must
a court that reasonably declines to defer to the expert‟s opinion because of a
flawed methodology or reasoning consider appointing another expert to inform its
view of the first expert‟s opinion? Does such a court err if it does not appoint a
second expert? In short, the majority‟s statements, in addition to being without
statutory basis, will create confusion and uncertainty for juvenile courts.
For the foregoing reasons, I dissent.
CHIN, J.
3 Another option, the court stated, was for the juvenile court to have waited
for the report of another expert it had appointed after expressing dissatisfaction
with the first report. (In re John Z.¸ supra, 223 Cal.App.4th at p. 1058.)
13
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re R.V.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 217 Cal. App. 4th 296
Rehearing Granted
__________________________________________________________________________________
Opinion No. S212346
Date Filed: May 18, 2015
__________________________________________________________________________________
Court: Superior
County: Orange
Judge: Deborah J. Servino
__________________________________________________________________________________
Counsel:
Cindy Brines, under appointment by the Supreme Court, for Defendant and Appellant.
Paulino G. Durán, Public Defender (Sacramento) and Arthur L. Bowie, Assistant Public Defender, for the
Office of the Public Defender for Sacramento County as Amicus Curiae on behalf or Defendant and
Appellant.
Aimee Feinberg; Tamara Lange and Michael Harris for National Center for Youth Law as Amicus Curiae
on behalf or Defendant and Appellant.
Susan L. Burrell and L. Richard Braucher for Youth Law Center and Pacific Juvenile Defender Center
as Amicus Curiae on behalf or Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Steven T. Oetting, Deputy State Solicitor General, Melissa Mandel, Charles C.
Ragland, Kathryn Kirschbaum, Lise S. Jacobson and Sean M. Rodriquez, Deputy Attorneys General, for
Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Cindy Brines
P.O. Box 138
Verdugo City, CA 91046
(818) 249-4344
Kathryn Kirschbaum
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2277
2