Opinion
NOT TO BE PUBLISHED
Super. Ct.No. JV121557
SCOTLAND, P. J.
J. A. (the minor) was charged with false imprisonment and multiple counts of sexual battery. After his attorney expressed a doubt as to the minor’s competence to stand trial, a contested hearing was held and the minor was found competent. The matter was then continued for a settlement conference.
At the settlement conference, the parties submitted the matter on the police reports and probation social study. The juvenile court sustained the felony sexual battery charge, concluded that the evidence was sufficient to sustain the other counts but dismissed them in the interest of justice, declared the minor a ward of the juvenile court, and committed him to the custody of the probation officer for Level A placement.
On appeal, the minor contends the juvenile court’s orders must be reversed because (1) the court did not appoint the director of the regional center for the developmentally disabled to examine the minor pursuant to Penal Code section 1369, and (2) the evidence was insufficient to support the finding that the minor was competent to stand trial.
We shall affirm the juvenile court’s orders.
FACTS AND PROCEDURAL BACKGROUND
In August 2007, the minor, a 14-year-old student with a developmental disability that placed his cognitive abilities at the level of an average 9 year old, grabbed a female student in the junior high school gymnasium, forced her beneath the bleachers, and groped her breasts beneath her shirt and bra. He was arrested, booked into juvenile hall, and charged with felony sexual battery and false imprisonment.
The delinquency petition was later amended to allege two more counts of sexual battery, charged as misdemeanors, perpetrated by the minor against two other female students.
His attorney later expressed a doubt as to the minor’s competence to stand trial and asked the court to “appoint a psychologist to evaluate him for competency.” The court immediately suspended the proceedings and, pursuant to section 705 of the Welfare and Institutions Code and rule 5.645 of the California Rules of Court, directed the probation department “to arrange for a psychological evaluation to determine [the minor’s] ability to understand these proceedings and to assist his attorney and whether he is competent to go forward.”
The minor was evaluated by Dr. Christopher Heard, a clinical psychologist with substantial experience as a forensic psychologist. Dr. Heard concluded the minor was “competent to stand trial in juvenile court.” As Dr. Heard explained during his testimony at the competency hearing, the minor’s intelligence test results “placed him in the mildly mentally retarded range, ” but he possessed the ability to understand the juvenile court proceedings, appreciated the significance of his situation, and was capable of assisting his attorney in presenting a defense. Dr. Heard so opined after having a conversation with the minor about the roles of the participants in a court proceeding (e.g., the minor’s attorney, the prosecutor, and the judge), the different types of evidence that could be introduced at trial, and the range of dispositions that were possible outcomes of the delinquency proceeding. In response to Dr. Heard’s questions, the minor provided “a basic understanding” of the juvenile court process. Dr. Heard testified that he provided the minor with additional information about the process because few people understand their constitutional rights or criminal procedure, so “the question of competence” turned not so much on whether the minor presently understood the nuances of the juvenile justice system, but whether he possessed the present ability to understand it, such that he would be able to assist his attorney at trial. Based on their conversation, Dr. Heard concluded that the minor possessed such an ability and was competent to stand trial.
The minor was also evaluated by Dr. John Shields, a clinical forensic psychologist certified by the American Board of Forensic Psychology to conduct competency evaluations. Dr. Shields met with the minor on three separate occasions and conducted the “standard evaluation specific to the issue of juvenile competency, ” which included a review of the minor’s history, a “structured interview designed specifically for assessing juvenile competency-related issues, ” and “a standardized assessment of cognitive ability.” Based on this evaluation, Dr. Shields concluded the minor did not adequately understand the nature of the juvenile court proceedings and could not adequately assist his attorney in a rational manner.
Shields’ assessment confirmed Dr. Heard’s conclusion that the minor had a developmental disability that placed his cognitive abilities at the level of an average 9 year old. This was also reflected by the minor’s enrollment in special education classes and the fact he was previously referred to Alta Regional Center, which provides services for individuals living with developmental disabilities.
Dr. Shields noted that, “from a fairly young age there were indications of pretty significant behavior problems, ” and the minor had a dependency history including “more than a dozen placements over the past several years, ” each ending because of “aberrant and unmanageable behavior.” This unmanageable behavior was reflected in the probation report Dr. Shields reviewed, which chronicled several misdemeanor violations ranging from battery to vandalism. Dr. Shields also noted the minor was “hospitalized for approximately one month under [Welfare and Institutions Code section] 5150 when he was about 10 years old.” And the minor had been diagnosed with attention deficit hyperactivity disorder and oppositional/defiant disorder, and had been prescribed several psychotropic drugs as a means of managing anger issues.
Dr. Shields conducted the Juvenile Adjudicative Competence Interview (JACI), a “structured interview for assessing a minor’s trial-related abilities.” During this interview, he asked the minor a series of questions covering the following topics: the nature and seriousness of the charged offenses; the nature and purpose of a juvenile court trial; possible pleas; plea agreements; possible penalties; the roles of the prosecutor, defense attorney, probation officer, and judge; the importance of assisting the defense attorney; and the minor’s recent participation in the juvenile court proceedings. The results of the interview were “kind of mixed.” Dr. Shields explained that the minor’s answers to some of the questions demonstrated “an adequate understanding of the concept posed to him, ” while some answers “did not, ” and others revealed a “partially accurate understanding” of the concept posed to the minor.
According to Dr. Shields’ evaluation, the minor adequately understood the nature and seriousness of the charged offenses, the roles of the prosecutor, defense attorney, and probation officer, and the importance of assisting his attorney. However, Dr. Shields noted the minor’s “specific understanding of the [charges] isn’t entirely accurate” because the minor described the charges as “kidnapping and sexual abuse” rather than false imprisonment and sexual assault.
Dr. Shields concluded that the minor possessed an impaired understanding of the nature and purpose of a juvenile court trial, possible pleas, and plea agreements. When asked about the purpose of a juvenile court trial, the minor told Dr. Shields: “It’s to talk more about the case. The judge decides where he should send me. He talks to my attorney and [probation officer] about what should happen.” According to Dr. Shields, the minor’s response was impaired because it “jumps directly to dispositional considerations and skips over entirely that a juvenile court trial is designed to make a determination about the truth of the facts based on the evidence.” When Dr. Shields followed up with a question about “how discipline at home or school might differ from what goes on in a juvenile court trial, ” the minor responded: “The only difference is I don’t go to court.” Dr. Shields concluded that this answer missed “the all important nuances of the purpose of a juvenile court trial, which is to hear and weigh evidence.”
Dr. Shields also concluded the minor possessed an impaired understanding of possible pleas and plea agreements. When asked about his understanding of possible pleas, the minor explained: “If you pled guilty that means you did the charge, that you actually did the thin[g] to the person. Not guilty is saying you didn’t do it.” According to Dr. Shields, this would have been a “generally accurate response” had the minor been asked to distinguish between a guilty and not guilty plea; but what he was attempting to elicit with this question was a response not about possible pleas, but about “possible plea agreements and how they work and what their purpose is.” When Dr. Shields followed up with a question about whether a guilty person could plead not guilty, the minor answered: “If you plead guilty you get more time. It depends on how the judge takes it. The judge could look at all your past court dates and think you did it. You can’t plead not guilty [because] he had no evidence [t]hat I did it. He ha[d] no proof.” Dr. Shields testified that this answer was “convoluted” and “infused with something that really doesn’t figure into the process, which is the Court making a determination about the facts of the specific allegation based on his past court dates.”
Dr. Shields testified that, when the minor was specifically asked about his understanding of a plea agreement, he responded: “It means the judge give[s] you [an] ankle monitor and probation. I could say I could deal with it; or 6 months probation.” According to Dr. Shields, this was “a fairly concrete response” providing “some options that are available for penalties, ” but did not convey “the nuances of what a plea agreement is and what its purpose might be or how there may be some mutual benefit to the parties in the case of a plea agreement being exercised.” When Dr. Shields followed up by asking why a prosecutor might offer a lesser sentence in exchange for a plea, or why turning down such a plea was like taking a chance, the minor answered: “Well, it’s like taking a chance. It’s like saying I do it. It’s like pleading not guilty.” According to Dr. Shields, the minor seemed to be “trying to confabulate an answer. He doesn’t really know, but he’s trying to use some terms that sound right.”
Dr. Shields opined that the minor’s understanding of the concepts of possible penalties and role of the judge was partially impaired. When asked what could happen if the judge sustained the petition, the minor answered: “I could go to CYA, I could just keep going to court, or I could go to prison.” In Dr. Shields’ view, this reply created “the impression” the minor “understands that if the court sustains a petition or there’s some guilty finding, that there be some kind of penalty, some lockup sort of consequences.” Dr. Shields testified, however, that continuing to go to court is “not really a penalty for a sustained petition” and going to prison is “clearly factually inaccurate.” When Dr. Shields followed up with a question about CYA, the minor provided a “generally accurate” description. When the minor was asked why he believed he could “just keep going to court, ” he responded that he had “gone to court many times and just thought that he would just keep going to court.” Overall, Dr. Shields concluded these responses indicated partial impairment, but the minor “understood the relative severity of various penalties, ” including possible commitment to DJJ.
CYA refers to the California Youth Authority, which is now called the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ).
Dr. Shields further testified that, when he asked about the role of the juvenile court judge, the minor said: “The judge is the person who thinks about what they should do; what you should get or not get.” When asked whether the judge knew whether he was guilty, the minor answered: “No, he didn’t hear both sides of the story yet.” In Dr. Shields’ view, the first response was only “partially correct” because it “doesn’t capture the role of the judge that has to do with the actual conducting of the juvenile court trial, ” but the second response conveyed “an understanding of another of... the two most important roles of the juvenile court judge, ” the fact-finding role and the dispositional role. However, Dr. Shields concluded that the minor did not understand his right to remain silent from the following exchange. Dr. Shields asked: “If when you went into court and the judge told you that you had to tell him the truth about what you did, what would you do?” The minor answered: “I’d tell him the truth.”
Additionally, aside from the JACI results, Dr. Shields noted two examples during the evaluation where the minor “demonstrated extremely concrete thinking, and impaired judgment.” The first occurred when the minor explained that he believed he would be going home after his next hearing because he told the juvenile hall staff to put a note in his file “indicating that he was good and had been behaving and was suitable to go home because he was being good.” According to Dr. Shields, “this is a kind of wishful, kind of magical thinking that is much more congruent with the cognitive status of a very young child as opposed to a nearly 15-year-old boy.” The other example occurred when the minor explained that he tried to kill himself in juvenile hall by “flush[ing] himself down the toilet, ” and that, if he did not die, he might be able to successfully escape through the sewer system.
After hearing the testimony of both experts and the argument of counsel, the juvenile court ruled the minor was competent to stand trial.
The court first explained that it was relying primarily on Dr. Shields’ evaluation, which was a more “in depth” interview than the one conducted by Dr. Heard. The court concluded the minor’s answers to Dr. Shields’ questions showed “a fairly sophisticated understanding of what the charges are against him, what he’s facing, how the criminal justice system works, ” and that the minor “clearly understands the nature of these proceedings.” The court explained, Dr. Shields “repeatedly said something to the effect that: Well, the minor generally understands and generally gave accurate responses.... But [Dr. Shields] kept saying [that the minor]... missed the nuances of some of these concepts. And based upon that, he found the answer wanting. [¶] And I’ve got to tell you, a lot of the adults I know would have missed a number of those nuances. This minor has, in my mind, an unusual ability to articulate the meaning of various legal concepts. And I think Dr. Shields was a bit unrealistic in what he was looking for this minor to say.” For example, far from viewing as impaired the minor’s answer to a question about the plea agreement, the court characterized it as “a hell of a response” because turning down a plea offer “is almost like pleading not guilty.” The court concluded the minor “understands quite a bit.”
The court also explained that, while it was initially concerned about the minor’s ability to assist his attorney due to an inability to pay attention during the proceedings, this concern was alleviated by the fact the minor was “pretty attentive” during the competency hearing despite the fact the testimony from the experts was not “exciting.” The court also observed: “[N]umber one, he’s been here and he’s remained quiet and composed the entire time. I think he understands what’s going on in here and that his role in this situation is not to jump up and say things and basically just listen and just to pay attention. So he understands what’s going on in here. [¶] Secondly, I also think though that if... we had a trial going on involving the charges and the witnesses the [prosecutor] may call here testifying, particularly the victim and others who were around when the accident happened to have occurred, I think he would be attentive. I think he would have the ability to jump up and tell [his attorney]: You know what, that didn’t happen that way. Or he would be able to say: No, that’s not what I did. No, that’s not what I said.”
DISCUSSION
I
Subjecting an incompetent minor to a juvenile delinquency trial is a violation of the due process clauses of the state and federal Constitutions. (In re Ricky S. (2008) 166 Cal.App.4th 232, 234.)
In determining whether a minor is competent to stand trial, “the inquiry is whether the [minor] ‘“has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him.”’ [Citation.]” (Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 857, quoting Dusky v. United States (1960) 362 U.S. 402 [4 L.Ed.2d 824].)
The minor contends the juvenile court erred by failing to appoint the director of the regional center for the developmentally disabled to examine him pursuant to subdivision (a) of Penal Code section 1369, which sets forth a procedure in a criminal case for a court to obtain expert opinions from “psychiatrists” or “licensed psychologists” on whether a person charged with committing a crime is mentally competent to “understand the nature of the criminal proceedings” and “assist counsel in the conduct of a defense in a rational manner.”
The statute provides that, on the issue of mental competence to stand trial, the court “shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant, ” and, “[i]f it is suspected the defendant is developmentally disabled, ” the court shall also appoint the director of the regional center for the developmentally disabled to examine the accused and provide the court with an expert opinion as to whether the accused is competent to stand trial. (Pen. Code, § 1369, subd. (a).) A purpose of this requirement is to ensure that a developmentally disabled person is evaluated by experts experienced in that field and to thus enable the trier of fact to make an informed determination of the person’s competence to stand trial. (People v. Leonard (2007) 40 Cal.4th 1370, 1391.)
However, a minor accused in a juvenile delinquency matter is not “a defendant, ” and the matter is not a criminal proceeding. (Welf. & Inst. Code, § 602.) Thus, Penal Code section 1369 does not apply.
Rather, the issue of a minor’s competency to stand trial in a juvenile dependency proceeding is governed by California Rule of Court, rule 5.645, which does not require the appointment of the director of the regional center for the developmentally disabled to examine a minor suspected of being developmentally disabled.
California Rules of Court, rule 5.645(d) states: “If the court finds that there is reason to doubt that a child who is the subject of a petition filed under [Welfare and Institutions Code] section 601 or 602 is capable of understanding the proceedings or of cooperating with the child’s attorney, the court must stay the proceedings and conduct a hearing regarding the child’s competence. [¶] (1) The court may appoint an expert to examine the child to evaluate the child’s capacity to understand the proceedings and to cooperate with the attorney....”
In any event, even if an expert opinion from the director of a regional center for the developmentally disabled as to whether a minor suspected of being developmentally disabled is competent to stand trial were required, it would be subject to the forfeiture doctrine if the accused fails to assert it in the trial court. (See In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [a right, whether constitutional or statutory, may be forfeited by the failure to assert the right in the tribunal with jurisdiction to determine it; the purpose of this rule is to encourage parties to bring error to the attention of the trial court so that they may be corrected]; People v. Weaver (2001) 26 Cal.4th 876, 903-904.) As long as there is other expert evidence to establish a developmentally disabled person is competent to stand trial, the proceeding does not violate due process of law. (See People v. Leonard, supra, 40 Cal.4th at pp. 1389 [trial court’s failure to appoint the director of the regional center to examine a developmentally disabled defendant does not necessarily require reversal], 1391 [rejecting claim that the failure to appoint the regional director violated defendant’s “rights under the federal Constitution to due process and a fair trial, as well as his Eighth Amendment right to a reliable guilt and penalty proceeding”].)
Citing People v. Leonard, supra, 40 Cal.4th 1370 and People v. Glenn (2009) 178 Cal.App.4th 778, the minor asserts the forfeiture doctrine does not apply to the failure to appoint the regional director to provide evidence on whether a developmentally disabled person is competent to stand trial. However, nothing in People v. Leonard stands for that proposition; and on February 10, 2010, the California Supreme Court granted review in People v. Glenn, supra, which, in any event, did not consider the forfeiture doctrine in the context presented in this case.
Here, it was evident to the parties, the juvenile court, and the experts who testified at the competency hearing, that the minor is developmentally disabled. By not objecting when the juvenile court did not appoint the director of a regional center for the developmentally disabled to weigh in on the issue of competency to stand trial, the minor forfeited his right to complain on appeal about that omission.
Moreover, we conclude the minor was not harmed because this is not a case where the developmental disability of the minor was overlooked, such that the court could not make an informed determination regarding competence to stand trial. Indeed, the experts who testified at the competency hearing considered the minor’s developmental disability in reaching their expert opinions. And the trial judge took into account the minor’s developmental disability in finding that he was competent to stand trial. As we will explain in Part II, post, there was ample evidence of such competency from the minor’s responses to questions posed by the experts; indeed, the evidence of competency to stand trial was so strong, we are satisfied beyond a reasonable doubt that, had the court appointed the regional director to opine on the issue, the result would have been the same.
II
The minor contends the “[e]vidence that [he] was incompetent was overwhelming.” To the contrary, the evidence plainly established his competence to stand trial.
The minor was competent to stand trial in the dependency proceeding if he had a sufficient present ability to understand the nature of the proceedings against him and, in a rational way, to assist his counsel in the minor’s defense. (Timothy J. v. Superior Court, supra, 150 Cal.App.4th at p. 857.) On review of the juvenile court’s finding, we determine whether substantial evidence, viewed in the light most favorable to the ruling, supports the court’s finding. Evidence is substantial if it is reasonable, credible, and of solid value. (Ibid.)
The experts agreed that the minor was developmentally disabled. They also agreed that having such a disability did not inexorably lead to the conclusion that the minor was legally incompetent to stand trial. And, although the juvenile court relied “primarily” on the “results of Dr. Shields’ interview with the minor and the [minor’s] responses which Dr. Shields very thoroughly documented, ” the court was not required to accept Dr. Shields’ ultimate conclusion as to competence. (People v. Marshall (1997) 15 Cal.4th 1, 31.)
The juvenile court found the minor’s responses to the experts’ questions showed his understanding of the dependency proceedings, “how the... system works, ” and the charges against him, and also showed the minor had the ability to rationally assist his counsel in a defense. Substantial evidence supports the findings.
Dr. Shields acknowledged that the minor adequately understood the nature and seriousness of the charged offenses, and the roles of the prosecutor, defense attorney, and probation officer. Dr. Shields also opined that the minor understood the importance of assisting his attorney; in the words of Dr. Shields, the minor had “a general understanding” of “how he might be able to be useful to his own attorney in terms of conveying information.” Dr. Heard agreed, opining that the minor was able to “appreciat[e] the significance of what [was] going on [in the delinquency proceeding]” and to “be of assistance to [his] counsel.”
For example, the minor seemed to understand the presumption of innocence and the prosecutor’s burden of proof (when asked whether the judge knew he was guilty, the minor responded, “No, he didn’t hear both sides of the story yet”). The minor understood the nature of a plea (“If you pled guilty that means you did the charge, that you actually did the thin[g] to the person. Not guilty is saying you didn’t do it”). The minor knew the consequence of rejecting the prosecutor’s offer for a lesser sentence in return for an admission of guilt (“Well, it’s like taking a chance.... It’s like pleading not guilty”). The minor identified one possible consequence of admitting guilt (“Well, it means that the judge could give you [an] ankle monitor and probation”); and Dr. Shields opined that the minor “understood the relative severity of [other possible] penalties, ” including commitment to DJJ. In addition, the minor had a rational understanding of the roles of the judge, the minor’s attorney, and the probation officer in a trial if the delinquency petition were sustained (“It’s to talk more about the case. The judge decides where he should send me. He talks to my attorney and [probation officer] about what should happen”).
It is true that Dr. Shields opined the minor’s answers failed to grasp some of the “nuances” of the expert’s questions. But the test is not whether the minor had a sophisticated understanding of all the nuances (which the trial court justifiably characterized as “unrealistic”); it is whether the minor’s responses showed that he had a sufficient present ability to understand the nature of the proceedings against him and, in a rational way, to assist his counsel in the minor’s defense. They did in the trial court’s view, and we agree with that assessment.
The minor argues that the competency finding is flawed because of the experts’ purported “lack of familiarity [with] and failure to evaluate [him] for developmental disability.” Yet there is nothing in the record to support either claim. The experts were aware of the minor’s developmental disability, they did not demonstrate any lack of familiarity with developmental disability, and their evaluations explicitly addressed how the minor’s developmental disability affected his competency to stand trial.
According to the minor, the competency finding is flawed because the experts “did not assess or distinguish the different mental illness/ developmental disability bases for finding incompetence.” However, that was unnecessary in this case because there was no suggestion the minor was mentally ill; rather, the competency evaluation was based on particular considerations stemming from the minor’s developmental disability.
Asserting that a person’s “adaptive functioning” is “an integral and particularized component of determining mental retardation, ” the minor claims the experts did not assess his “adaptive functioning.” By his “see” citation to Atkins v. Virginia (2002) 536 U.S. 304, [153 L.Ed.2d 335], and “American Association on Mental Retardation Manual, ” the minor apparently refers to an assessment of whether his “‘subaverage general intellectual functioning’” was “‘accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety” (Atkins v. Virginia, supra, 536 U.S. at p. 308, fn. 3 [153 L.Ed.2d at p. 342, fn. 3]). However, the experts did assess how the minor’s developmental disability affected his functional ability to understand the proceedings and rationally assist his counsel, and the minor does not explain how assessment of the other skill areas may have altered the experts’ conclusions regarding the minor’s competency. Thus, he has failed to demonstrate reversible error.
The minor argues there was “no evidence to rebut Dr. Shields’ conclusion that [the minor] could not think abstractly, could not entertain multiple possibilities, multiple outcomes, or multiple meanings from one given idea.” As the trial court noted, however, that is an unrealistic test of competence. Simply stated, the minor’s competence to stand trial was demonstrated by his responses to questions posed by Dr. Shields and Dr. Heard, and the minor’s failure, in Dr. Shields’ view, to understand some of the “nuances” of those questions does not prove otherwise.
In another attack on the competency finding, the minor argues that his ability to maintain his composure during the competency hearing “is plainly not the test of competency.” We agree so far, but disagree with the minor’s suggestion that such composure is not a factor that indicates whether a person is competent to stand trial. And the minor wrongly implies that this factor was the dispositive one in the court’s mind (in the words’ of the minor’s appellate counsel, “this observation” that the minor “remained quiet and composed the entire length of the proceedings” was the court’s “‘number one’ factor when concluding [the minor] was competent”). The minor’s composure was only one aspect of the evidence that was considered by the judge, and his ruling makes it readily apparent that the minor’s answers to the experts’ questions were the dispositive evidence (evidence we conclude was substantial and supports the judge’s finding that the minor was competent to stand trial).
DISPOSITION
The orders of the juvenile court are affirmed.
I concur. ROBIE, J. BLEASE, J.
I concur in the judgment and in the opinion except as to part II of the Discussion as to which I concur in the result.