IN RE R.V.

Appellant’s Petition for Review

Cal.July 26, 2013

SUPREME COURT FILED JUL 2 6 2013 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA i Kk A. McGuire Clerk In re Rosario V., Fran A A Person Coming Under the Juvenile Court Law, THE PEOPLE OF THE STATE OF CALIFORNIA, No. Deputy) ) ) ) G046961 Plaintiff and Respondent, ) ) Related Habeas: Vv. ) G047716 ) (Sup.ct.No. DLO341T39y ROSARIO V., ) ) ) ) Defendant and Appellant. PETITION FOR REVIEW CINDY BRINES State Bar # 169125 P.O. Box 138 Verdugo City, California 91046 Telephone: (818) 249-4344 Cindybrines@sbcglobal.net By appointment of the Court of Appeal under the Appellate Defenders, Inc. assisted case system Attorney for Appellant Rosario V. TABLE OF CONTENTS PETITION FOR REVIEW ISSUES PRESENTED FOR REVIEW NECESSITY FOR REVIEW STATEMENT OF THE CASE AND STATEMENT OF FACTS ARGUMENT I. THIS COURT SHOULD GRANT REVIEW TO DETERMINE WHETHER THERE IS A PRESUMPTION OF COMPETENCY IN JUVENILE PROCEEDINGS AND TO WHOM THE BURDEN TO PROVE COMPETENCY OR INCOMPETENCY FALLS II. THIS COURT SHOULD GRANT REVIEW TO DETERMINE WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE COURT’S FINDING THAT ROSARIO WAS COMPETENT CONCLUSION CERTIFICATE OF COMPLIANCE 17 17 TABLE OF AUTHORITIES Page(s) United States Supreme Court Cases: Dusky v. United States (1960) 362 U.S. 402 [80 S.Ct. 788, 4 L.Ed.2d 824] 10 California Cases: In re Alejandro G. (2012) 205 Cal.App.4th 472 2 In re Christopher F. (2011) 194 Cal.App.4th 462 2, A In re Shawnn F. (1995) 34 Cal.App.4th 184 6 James H. v. Superior Court (1978) 77 Cal.App.3d 169 12 People v. Canty (2004) 32 Cal.4th 1266 7 Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847 5, 10 Miscellaneous: Penal Code section 1367 5 Penal Code section 1369 5 Welfare and Institutions Code section 202 5, 7 Welfare and Institutions Code section 709 ii IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re Rosario V., A Person Coming Under the Juvenile Court Law, THE PEOPLE OF THE STATE OF CALIFORNIA, G046961 ) ) ) ) WePlaintifffandRespondent, ) ) Related Habeas: Vv. ) G047716 ) (Sup.Ct.No. DL034139) ROSARIO V., ) ) ) ) Defendant and Appellant. PETITION FOR REVIEW TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Appellant, Rosario V., hereby petitions this Honorable Court for review in the above-entitled matter after a published decision rendered by the Court of Appeal of the State of California, Fourth Appellate District, Division Three, on June 19, 2013. A copy of the decision affirming the judgment is attached to this Petition. No petition for rehearing was. sought. _.counseltoldthecourtRosariowasnotabletoconsultwith er ISSUE PRESENTED FOR REVIEW 1. Whether a minor is presumed competent and bears the burden to prove incompetency in a juvenile delinquency proceeding. 2. Whether there was sufficient evidence to prove beyond a reasonable doubt that Rosario was competent given that defense with a reasonable degree of rational understanding, the appointed doctor opined that Rosario was not competent, and the prosecution presented no evidence of competency. NECESSITY FOR REVIEW 1. Review by this Court is necessary because the Court of Appeal’s holding does not serve the goals of the juvenile justice system and this Court has yet to rule on the issue of whether a minor is presumed competent and who has the burden to prove competency or incompetency in a juvenile proceeding. (In re Alejandro G. (2012) 205 Cal.App.4th 472, 481.) 2. Review by this Court is necessary to preserve appellant’s constitutional right not to be adjudicated while incompetent. (In re Christopher F. (2011) 194 Cal.App.4th 462, 468.) STATEMENT OF THE CASE AND STATEMENT OF FACTS For purposes of this Petition only, Rosario relies upon the facts set forth on pages 2-5 of the opinion. Additional facts relevant to the issue presented will be incorporated into the argument as needed. ARGUMENT I. THIS COURT SHOULD GRANT REVIEW TO DETERMINE WHETHER THERE IS A PRESUMPTION OF COMPETENCY IN JUVENILE PROCEEDINGS AND TO WHOM THE BURDEN TO PROVE COMPETENCY OR INCOMPETENCY FALLS Rosario urges this court to grant review in this case to determine whether there is a presumption of competency in juvenile proceedings and whether the burden to prove incompetency falls on the minor alone. The Court of Appeal acknowledged that “as to a minor’s competence (or lack thereof), section 709 establishes no presumption or burden of proof allocation nor has any published case decided the issue.” However, the court saw no reason to treat minors differently from adults for purposes of allocating the burden of proof on incompetency and held that the trial court properly allocated the burden to prove incompetency to the minor. (Opin. 8, 11.) This is an important and recurring issue in juvenile adjudications, and this Court should resolve the issue to ensure uniformity in juvenile hearings throughout California. The presumption of competency does not necessarily transfer to juvenile proceedings which are markedly different from adult proceedings. (In re Christopher F. (2011) 194 Cal.App.4th 462, 472.) Statutorily, an adult’s competency is presumed whereas a minor’s competency is not presumed. (Pen. Code, § 1369, subd. (f); Welf. & Inst. Code, § 709.) For adults, their incompetency to stand trial must arise from a mental disorder or developmental disability that limits their ability to understand the nature of the proceedings and to assist counsel. (Pen. Code, § 1367, subd. (a).) The same cannot be said of a young child whose developmental immaturity may result in trial incompetence despite the absence of any underlying mental or developmental abnormality. (Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 860.) Additionally, due to the developmental stages of a juvenile, a presumption of competency would be improper. Even if, for the sake of argument, this Court were to find that there is a presumption of competence in juvenile proceedings, this Court must also determine which party has the burden of proof. Here, the Court of Appeal wrongfully allocated to the minor the burden to prove incompetency. Placing the burden on the minor does not comport with Welfare and Institutions Code section 202, subdivision (d), which states in pertinent part: “Juvenile courts and other public agencies charged with enforcing, interpreting, and administering the juvenile court law shall consider the safety and protection of the public, the importance of redressing injuries to victims, and the best interests of the minor in all deliberations pursuant to this chapter. Participants in the juvenile justice system 5 shall hold themselves accountable for its results.” In juvenile court everyone involved shares the responsibility of what is in the best interest of the minor. It follows, then, that everyone involved should share in the responsibility of making sure that the minor is competent before being adjudicated. One of the purposes of the juvenile court system is to protect the minor. (In re Shawnn F.(1995) 34 Cal.App.4th 184, 196.) Accordingly, it is imperative that once a doubt has been declared the court should err on the side of incompetency and maximize treatment potential for juveniles exhibiting impairment in mental functioning. The Court of Appeal asserts that to “err on the side of incompetency” as to a competent minor would deprive him or her of the full panoply of reformative options available to a court fashioning a disposition order and thereby diminishes the chances for true rehabilitation. (Opin. 10.) The Court of Appeal is essentially saying that trial courts should err on the side of competency because there are so many resources available to the minor once they are declared a ward of the court. This argument fails to consider the bigger picture. Being able to avail oneself of these resources presupposes that the minor is competent. A minor cannot be adjudicated while incompetent. This is so, in part, because a minor needs to be competent so that he/she can comprehend the consequences of his/her actions and the need for reform. The goal of rehabilitation is lost on a minor that is not competent to 6 rationally and factually understand the proceedings against him. Being adjudicated while incompetent would clearly not be in the best interest of the minor and would run counter to Welfare and Institutions Code section 202, subdivision (d). The Court of Appeal stated that the text of section 709, subdivision (c), supports the conclusion that minors bear the burden of proving incompetency because the statute mandates suspension of proceedings only upon a finding that a minor is “incompetent.” (Opin. 11.) However, the text of section 709, subdivision (a), actually supports the conclusion that the minor is not the only one to bear the burden of proving incompetency; the statute declares that during the pendency of any juvenile proceeding, the minor's counsel or the court may express a doubt as to the minor's competency. Additionally, the absence of a statutory allocation of the burden of proof in Section 709 shows a legislative intent for a different burden than in the adult context under the rules of statutory construction. (People v. Canty (2004) 32 Cal.4th 1266, 1276.) The present case demonstrates why the burden should not fall on the minor alone. Here, after defense counsel declared a doubt as to Rosario’s competency to stand trial, the court suspended proceedings and appointed a psychologist to evaluate Rosario. The doctor submitted a report stating that in his opinion Rosario was not competent to be adjudicated. Defense counsel submitted on the doctor’s report. The prosecution requested a hearing with the doctor to question him about his opinion, but failed to offer 7 any counter evidence of competency. The court rejected the opinion of defense counsel, the doctor, the social worker and the manifestation determination and declared Rosario competent. The trial court essentially placed on Rosario the burden not only of producing evidence of his incompetence that was more convincing than not, but also the additional burden of disproving the juvenile court’s findings. The burden of proving whether a minor is competent or not should be a collaborative effort between defense counsel, the prosecutor and the court. If the court has concerns about a doctor’s findings, it would be in the best interest of the minor to further investigate those concerns. If the prosecutor believes the minor is competent when a doubt has been declared, it would be in the best interest of the minor to present evidence demonstrating competence. All three parties should have the best interest of the minor in mind when determining competency. This court should grant review to determine whether there is a presumption of competency and who has the burden of proving competency in a juvenile proceeding to give much needed guidance to the lower courts. ARGUMENT If. THIS COURT SHOULD GRANT REVIEW TO DETERMINE WHETHER, THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE COURT’S FINDING THAT ROSARIO WAS COMPETENT On appeal, Rosario argued that there was insufficient evidence to support the court’s finding that he was competent. (AOB 10-23.) Given the evidence presented, no reasonable trier of fact could have rejected the expert’s well-supported findings. The Court of Appeal held that substantial evidence supported the trial court’s finding that Rosario failed to meet his burden to demonstrate his incompetence to stand trial. (Opin. 11-13.) The court of appeal stated that the court reviewed Dr. Kojian’s report and the modification petition and detention records, and then explained at length its reasons for finding Rosario had not sustained his burden to prove incompetence. The Court of Appeal held the reasons articulated by the trial court were supported by substantial evidence in the record. (Opin. 12-13.) In determining whether a minor is competent to be adjudicated, the same standard applies in juvenile delinquency proceedings as in adult criminal proceedings; namely, whether the accused “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.” (Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 857 [quoting Dusky v. United States (1960) 362 U.S. 402 [80 S.Ct. 788, 4 L.Ed.2d 824]].) Under this test, the evidence did not support the court’s finding that Rosario was competent. After defense counsel declared a doubt as to Rosario’s competency, the court appointed Dr. Kojian, a forensic psychologist, to evaluate Rosario. (CT 44; RT 64.) Dr. Kojian testified that in addition to examining Rosario on April 11, 2012, he interviewed Rosario’s mother and reviewed the petition, various police reports, the detention report, a May 23, 2011 child guidance center letter, and a twenty page school Conditional Educational Report dated 1/5/11. (RT 31, 38, 66.) Based on the totality of this information, Dr. Kojian opined that Rosario was not competent to be adjudicated. (RT 55, 63-64.) After reviewing the court file and Dr. Kojian’s report and testimony, the court found Rosario did not sustain his burden to prove he was incompetent by a preponderance of the evidence and reinstated proceedings.#/ (RT 73.) The court explained that it did not accept the opinion of the social worker or the manifestation determination because it was not a full v The same court later found Rosario incompetent to be adjudicated in a different proceeding. This extra-record evidence is discussed in a contemporaneously filed petition for review from Rosario’s habeas petition. 10 determination of what was needed for Rosario’s Individualized Educational Program, (“I.E.P.”)2 (RT 75.) The court noted that the school did not completely rely on the I.E.P. testing for the manifestation determination report because they were not sure what caused Rosario’s cognitive and adaptive delays. (RT 76.) Although the court noted Dr. Kojian had extensive experience, it did not accept his opinion that Rosario could not assist counsel, partly because Dr. Kojian was not able to fully determine whether Rosario was malingering and because Rosario was unable to complete the REY 15 test. (RT 75.) The court found some of the statements Rosario made in response to Dr. Kojian’s questions regarding what he was being charged with to be appropriate (such as “messing up my house” and “not going to school”) since that was the genesis of what ended up being the charged offenses. (RT 75-76.) The court noted that Rosario understood that a misdemeanor was less serious than a felony and that his charge of possession of drugs at school had been taken care of. (RT 76.) Defense counsel disagreed with the court based on her attempted conversations with Rosario as well as her extensive conversations with his mother, his probation officer and his school counselor. (RT 76-77.) As a result of Rosario’s mental y A manifestation determination report is done when a minor is on an I.E.P. before the school posts any type of disciplinary action based on some conduct. The court determined that what had been referred to as an I.E.P. was actually a manifestation determination report, which had been attached to the modification petition. (RT 72.) 11 limitations, counsel stated that she would not be able to consent to his slow plea or go over the waivers and forms with him. (RT 77.) The trial court erred in finding Rosario competent because Rosario sustained his burden to prove he was incompetent by a preponderance of the evidence by presenting an array of evidence demonstrating his present inability either to understand the proceedings against him or to rationally assist in the preparation and presentation of his defense. Although the court was not obligated to adopt Dr. Kojian’s opinion, there was an impressive body of evidence supporting Dr. Kojian’s opinion that Rosario was not competent to be adjudicated. (See James. H. v. Superior Court (1978) 77 Cal.App.3d 169, 172 {“[T]he juvenile court has the inherent power to determine a minor’s mental competence to understand the nature of the proceedings pending under Welfare and Institutions Code section 707, subdivision (b) and to assist counsel in a rational matter at that hearing.”]) Furthermore, some of the statements made by Rosario that the court relied on to find Rosario competent were taken out of context. Dr. Kojian was not able to administer any cognitive function tests because Rosario refused to take the tests. (RT 45.) Despite the absence of additional testing, Dr. Kojian was 100% sure of his opinion that Rosario was not competent. (RT 45-46.) Dr. Kojian explained that competence is not based on cognitive tests, but on whether the defendant meets the Dusky standard. Dr. 12 Kojian also explained that for a competency assessment, tests are not always required depending on the presentation of the minor and the questions being asked of the minor. (RT 39.) Dr. Kojian relied on an array of evidence that supported Rosario was not competent: * Rosario was housed on a special unit in Juvenile Hall; the day of the incident thought that Rosario was confused or impaired in some way; ° Rosario had inappropriate affect (RT 47); * Rosario was very slow and deliberate in his speech and movements; ° Rosario was stiff legged, his gait was inhibited and he appeared to be responding to internal stimuli, and Rosario was somewhat catatonic in his presentation (CT 38); ° Rosario’s school records indicated that Rosario was very slow and that all his testing came back very low (RT 57); ° Rosario appeared to Dr. Kojian to be legitimately confused (RT 47); * Rosario’s responses to Dr. Kojian indicated impaired thinking. When Dr. Kojian asked Rosario competency = The reporter’s transcript uses the word “effect”. (RT 47.) 13 related questions it appeared that he did not fully understand what was happening (RT 47); * Rosario had difficulty explaining his charges (RT 53); . Rosario appeared to have a difficult time understanding the questions asked of him and was very unresponsive and confused about the incident. (RT 54.) ; ) © sianifi hat _led_Dr. - Kojian to believe that Rosario did not understand what was going on - the first prong of the Dusky standard. (RT 48.) Dr. Kojian found evidence for response latency, which is a significant clue in assessing whether there is any cognitive impairment. (RT 52.) Dr. Kojian was not able to determine the etiology of Rosario’s cognitive impairment, but was able to conclude that Rosario was cognitively impaired. (RT 53.) It did not appear to Dr. Kojian that Rosario was malingering. (RT 47.) In Dr. Kojian’s expert opinion, Rosario did not have sufficient ability to consult with counsel or assist in preparing his own defense with a reasonable degree of rational understanding. (RT 55.) Other evidence discussed at the hearing supported Dr. Kojian’s opinion: . The police report stated that Rosario appeared to have a difficult time understanding the officer’s questions and was very unresponsive to his questions. The report also indicated that Rosario appeared confused about the incident (CT 75); 14 ° On March 2, 2012, probation had requested terminating probation for Rosario on a prior case because of Rosario’s mental disabilities (RT 13); . Rosario’s mother reported to Dr. Kojian that Rosario had a history of mental health problems (CT 40; RT 53, 94); * A report from a licensed clinical social worker opined that Rosario had a developmental delay (RT 72-73); ° A manifestation determination report and Rosario’s I.E.P. were mentioned several times, although it is not clear from the record if all the parties were referring to the same documents. (RT 12, 71, 72, 75, 76.) The fact that these reports existed further supported that Rosario was suffering from mental limitations. During closing argument, defense counsel noted that based on Rosario’s presence and affect in court she had been unable to arraign him. (RT 68.) She also stated that the petition indicated that Rosario’s probation officer was unable to assist him because of Rosario’s developmental disabilities. (RT 68.) Counsel argued that Rosario’s cognitive and comprehensive skills were extremely low, which could make it difficult for him to process the differences between right and wrong. (RT 68, 69.) Counsel noted that Rosario has a long standing history of suffering from some sort of deficit. (RT 70.) Defense counsel’s disagreement with the court’s finding that 15 Rosario was competent based on her attempted conversations with Rosario as well as her extensive conversations with his mother, his probation officer and his school counselor was indicative of Rosario’s inability to consult with his lawyer with a reasonable degree of rational understanding. (RT 76-77.) No reasonable trier of fact could have rejected the expert’s findings. In looking at the totality of the record there was an impressive body of evidence it was more likely than not that Rosario did not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he had a rational as well as factual understanding of the proceedings against him. The prosecution did not present any affirmative evidence concerning Rosario’s competence. No expert testimony provided any basis for the contrary conclusion that Rosario was competent. The prosecution did not present evidence to refute any of Dr. Kojian’s findings. There was no evidence that a doctor must perform the standardized tests to be able to determine whether a minor is competent. There was no evidence to refute the social worker’s findings, or that of the probation officer, the police, or the school, which all contributed to Dr. Kojian’s findings. The evidence showed by a preponderance of the evidence that Rosario was incompetent. This court should grant review to determine whether there was sufficient evidence to support the court’s finding that Rosario was competent to be adjudicated. 16 CONCLUSION For the forgoing reasons, Rosario respectfully urges this Court to grant review of the issues presented in this Petition. DATED: July 24, 2013 Respectfully submitted, a f 2 : L47dY INAT CINDY BRINES Attorney for Appellant Rosario V. CERTIFICATE OF COMPLIANCE I certify pursuant to CA Rules of Court, Rule 8.360, subdivision (b), (1) that this petition for review contains 3386 words according to my word processing program (Wordperfect X4). DATED: July 24, 2013 Respectfully submitted, CINDY BRINES Attorney for Appellant Rosario V. 17 ATTACHMENT CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE SOURT OF APPEALATH DIST OI = In re R.V., a Person Coming Under the - Juvenile Court Law. | JUN 19 20%3 THE PEOPLE, | : rapt G046961 Plaintiff and Respondent, (Super. Ct. No. DL034139) Vv. OPINION RV., Defendant and Appellant. M p Appeal from a judgmentof the Superior Court of Orange County, Deborah C. Servinc. Judge. Judgmentaffirmed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attomey General, Dane R. Gillette, Chief Assistant Attorney General. Julie L. Garland, Assistant Attorney General, Melissa Mandel and Kathryn Kirschbaum. Deputy Attorneys General. for Plaintiff and Respondent. * 2 * A Welfare and Institutions Code section 602° petition alleged that minor R.V. brandished a weapon and vandalized property. Minor’s counsel questione¢ minor's competenceto standtrial. The court suspended the proceedings, appointed an evaluator. held a competency hearing, and found minorfailed to meethis burden to prove his incompetence. The court then reinstated the proceedings, foundtrue the petition’s allegations, and granted probation to minor. On appeal minor contends the court erred by requiring him to prove his incompetence and, alternatively, that no substantial evidence supports the court's finding he failed to meet his burden of proof on the issue. For the reasons discussed herein, we affirm the judgment. FACTS On the morning of March 9, 2012, minor woke up angry andtold his stepfather he was sick and did not wantto go to school. Minorthrew containers and clothing around the bedroom. The stepfather told minor he would miss the bus. Minor clenched his fists and said, “I’m going to fuck you up.” Minor pulled out a small silver knife from his pocket andtold the stepfather, “I will kill you if you call the police.” The ownerofthe house camein and saw minor kick a DVD player and argue with his stepfather in the living room. The ownertold minor to calm down. Minor said, “I'll kill you too.” Minor went in his bedroom andstabbed the bedatleast three times with the knife. Minor’s mother saw him throwa smal] television onto the living room floor. The mother followed him into the bedroom. Minoryelled, “] want a house, I want 1 . . All statutoryreferences are to the Welfare and Institutions Code unless otherwise stated. h w my own space.” He had a small silver knife and told his mother, “Don’t comeclose to me. I have a knife.” The stepfather told police that minor has mental problemsand is getting worse, and that the stepfather feared for his own and his daughter's safety. The mother said minor has psychological problems and had not taken his prescribed medication for the past four weeks. A section 602 petition alleged minor committed two counts of misdemeanor brandishing a deadly weapor: (Pen. Code, § 417, subd. (a}{1)) and _ misdemeanor vandalism causing property damage of under $400 (Pen. Code, § 594, subds. (a) & (b)(2)(A)). Pursuant to section 709, minor’s counsel declared a doubt, based on minor's cognitive deficits, as to his competencyto standtrial andto assist in his defense. The court suspendedproceedings, set a competency determination hearing, and appointed Dr. Haig Kojian to perform a section 709 evaluation. | In Dr. Kojian’s confidential report assessing minor's competence,the psychologist observed that minor appeared to be impaired, with limited thinking, slow speech, and analtered thought process. But because minorrefusedto take any tests, Dr. Kojian was unable “to assess him with objective measuresused to determine IQ, academic functioning, personality, organic functioning, etc.” Dr. Kojian stated minor presented as being depressed. Minor had apparently been treated for moodinstability (such as with the medications, Celexa and Abilify), and “for unknown reasons his cognition and thinkingare, clearly, disrupted.” Dr. Kojian opined minor was incompetentto standtrial, was legitimately confused about what was occurring, and lacked the capacity to meaningfully orrationally cooperate with counselin the preparation of a defense, or to assist counsel in a meaningful or rational manner. At the competency hearing, Dr. Kojian testified as follows. There are many tests available to assess a person's cognitive functioning. But even if Dr. Kojian had been able to administer tests to minor, this would not have changed the psychologist’ s opinion that minor was incompetent underthe legal standard. Minor’s thinking seemed impaired and his affect was inappropriate. Minor did not appear to be malingering. Minor’s motherand stepfather, his teachers, and a police officer all thought minor was confused or impaired. On cross-examination, Dr. Kojian testified minor “was very slow and deliberate in his speech and movements. He wasstiff legged, his gait was inhibited.” although minor deniedit. The court reviewed Dr. Kojian’s records, as well as the modification petition and minor's detention records. The court stated minor bore the burden to prove by a preponderance of the evidence his incompetencyto standtrial (citing Pen. Code, § 1369, subd.(f)) and that the court was not obligated to adopt Dr. Kojian’s opinion that minor was incompetent. The court found minorhad not sustained his burden to prove incompetence and found him to be competent to stand tal. The court did not accept the social worker's opinion that minor was developmentally delayed, because the opinion was“a piggyback of the manifestation determination,” which wasnota full determination necessary for an Individualized Education Program. Nor did the court accept Dr. Kojian’s opinion, partly because the doctor was unableto fully assess through testing whether minor was malingering. The court also found that certain statements made by minor, which Dr. Kojian had interpreted as confusion, were in fact appropriate. such as his statements that his wrongdoing involved messing up his house and refusing to go to school, that he understood a misdemeanorisless serious than a felony, and that his drug possession case at school had been taken care of. The court also noted, based on the manifestation report, that the school believed minor’s cognitive and adaptive delays may have been drug induced, given that his 2009 testing did not show any cognitive or 2 The appellate record does not contain certain documents to which the court referred, such as the modification petition and the manifestation determination and report. 4 o y adaptive delays. The court concludedit did not accept Dr. Kojian’s opinion. Consequently, the court reinstated the proceedings. Minor’s counsel respectfully disagreed with the court's ruling, but submitted the matter for decision based upon the police report. The court found true the petition’s allegations, declared minor a ward ofthe court under section 602, and placed him on supervised probation. The court provided the family a referral for wrap around services. DISCUSSION Minorcontends the court erred by ruling he bore the burden to prove incompetency. Alternatively. he contends no substantial evidence supports the court's finding he failed to meet this burden. Basic Principles on Competency to Stand Trial Underthe due process clauses of the federal and state Constitutions, a mentally incompetent person (whether an adult or a minor) may not be subjected to a criminaltrial or juvenile delinquency proceeding. (/n re Christopher F. (2011) 194 Cal.App.4th 462, 468 (Christopher F.).) As to criminal defendants, Penal Code section 1367, subdivision (a), defines incompetence as the defendant's inability (resulting from a mental disorder or developmental disability) to understand the nature of the criminal proceedingsor to assist defense counsel in a rational manner. As to minors, section 709, subdivision (a), defines incompetence as the minor's lack (1) of a “sufficient present ability to consult with counsel and assist in preparing [a] defense with a reasonable degree of rational understanding,” or (2) of a “rational as well as factual understanding . . . of the nature of the charges or proceedings.” (Ibid.) Juvenile incompetencyis not defined solely “in terms of mental illness or disability,” but also 5 encompasses developmental immaturity, since minors” brainsare still developing. (Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 860.) Both the adult and juvenile definitions of incompetence accord with the one established by the United States Supreme Court in Dusky v United States (1960) 362 U.S. 402. The Duskytest asks whether defendant“has sufficient presentability to consult with his lawyer with a reasonable degree ofrational understanding and whether he hasa rational as well as Section 709 governsthe procedure for determining the competencyof a minor whois subject to a section 601 or 602 petition. (§ 709, subds.(a), (€).) If the minor’s counsel or the court expresses a doubt as to the minor’s competencyandifthe court finds substantial evidence raises such a doubt, the court must suspend the proceedings(id., subd. (a), order that a competency hearing be held, and “appoint an expert to evaluate whether the minorsuffers from a mental disorder, developmental disability, developmental immaturity, or other condition and, if so, whether the condition or conditions impair the minor's competency”(id.. subd. (b)). If the court finds the minor “to be incompetent by a preponderance ofthe evidence,all proceedings shall remain suspended for a periodoftimethat is no longer than reasonably necessaryto determine whether there is a substantial probabilitythat the minor will attain competency in the foreseeable future, or the court no longerretains jurisdiction.” (§ 709, subd. (c).) Minor Was Presumed to Be Competent and Bore the Burden ofProving Incompetency As to adult defendants, the presumption of competencyis well established. (People v. Ramos (2004) 34 Cal.4th 494, 507.) Penal Code section 1369, subdivision (f) establishes a presumption “that the defendant is mentally competent unlessit is proved by a preponderance ofthe evidence that the defendantis mentally incompetent.” With this “Evidence is substantial if it raises a reasonable doubt about the child's competenceto stand trial.” (Cal. Rules of Court. rule 5.645(d)(1).) 6 phrase, the statute establishes a burden of proofallocation consistent with its presumption of competence, “placing on the defendant the burden of proving his own incompetence.” (People v. Medina (1990) 51 Cal.3d 870, 882 (Medina 1), affd. sub nom. Medinav. California (1992) 505 U.S. 437 (Medina iN.) In Medina I, the defendant raised “a due process challengeto the statutory burden allocation.” (Medina I, supra, 5\ Cal.3d at p. 881.) Our Supreme Court upheld the constitutionality of Penal Code section 1369, subdivision (f)’s presumption of competenceand allocation of the burden of proof to the defense. (Medina I, at pp. 884- 885.) Medina J reasoned: “In determining the propriety of a particular proofallocation, a critical factor is the extent to which either party has accessto the relevant information.” (/d. at p. 885.) “[OJne might reasonably expect that the defendant and his counsel would have better access than the People to the facts relevant to the court’s competency inquiry.” (/bid.) Defense counsel “can readily attest to any . . . defect or disability. The People, on the other hand, havelittle or no access to information regarding the defendant's relationship with his counsel, or the defendant’s actual comprehension ofthe nature of the criminal proceedings.” (/bid.; see also Medina II, supra, 505 U.S. at p. 450 [defense counsel will often have the best-informed viewof the defendant's ability to participate in his defense’’].) Medina I, supra, 51 Cal.3d 870. was subsequently upheld by the United States Supreme Court in Medina H, supra, 505 U.S. at page 453. (People v. Ary (2011) 51 Cal.4th $10, 518.) The Supreme Court's rejection of the petitioner’s due process challenge to Penal Code section 1369, subdivision (f), was based on the high court's determination that the California procedureis “*constitutionally adequate™™to guard against an incompetent defendant being criminally tried. (Medina I/, at p. 452.) So long 4 . - aoe In the rare case where the People claim (against opposition) that the defendant is incompetent, the People bear the burden of proof under Penal Codesection 1369, subdivision (f). (Medina I, supra, 51 Cal.3d at p. 885.) 7 as “the State affords the criminal defendant on whose behalf a plea of incompetence1s asserted a reasonable opportunity to demonstrate that he is not competentto stand trial.” allocating to him the burden of proof does notviolate the federal due processclause. (Ud. at p. 451.) Thus, an adult criminal defendantclearly bears the burden to prove incompetence. In contrast, as to a minor’s competence(or lack thereof), section 709 decided the issue. (/n re Alejandro G. (2012) 205 Cal.App.4th 472 (Alejandro G.): id. at p. 482 [‘this question has not been decided by any California court’); see also Seiser & Kumi, Cal. Juvenile Courts and Procedure (2013) § 3.73[5][b], p. 3-135.) In Christopher F., supra, 194 Cal.App.4th 462, the Court of Appeal was not called uponto resolve the burden ofproof issue. (/d. at p. 472.) Nonetheless, ChristopherF. raised (but did not answer) the question of whetherthe burden to prove a minor’s competencyshouldrest with the People. ChristopherF. noted that Penal Code section 1369, subdivision (f)’s statutory presumption “reflects a legislative judgmentthat does not necessarily transfer to juvenile proceedings. which, despite the increasing convergenceofthe adult and juvenile justice systems, remain markedlydifferent from adult proceedings becauseof their general goal of treatment of the juvenile offender, rather than punishmentof the adult criminal. [Citations.] Nostatute or rule of court specifically applicable to juvenile proceedingsallocates the burden ofproof on this issue. Absentsuch guidance,it is not immediately obvious the burden of proving a child's competence, as well as the elements of the offense charged, should not rest with the People, rather than requiring the child, like an adult defendant, to prove incompetence.” (Christopher F., at p. 472.) Based on Christopher F., minor argues, “Given that the focus ofjuvenile proceedingsis for treatment, it would be better to err on the side of incompetency and maximize treatment potential for juveniles exhibiting impairment in mental functioning and place the burden on the prosecution to prove competency.” The foregoing statementis the full extent of minor's argument: he does not further explicateit and, in particular, fails to clarify his precise meaning for the broad term, “treatment.” Weinfer that the premise of his argumentis that a minor whois ruled incompetentwill receive better mental health diagnosis and treatment than will a minor it a self-evident proposition. We put minor's argumentinto perspective. The goal of the juvenile justice system is rehabilitation. (People 1. Renteria (1943) 60 Cal.App.2d 463, 470 [goal is “that the child should not becomea criminalin later years, but a useful memberof society”); Jn re Myresheia W. (1998) 61 Cal.App.4th 734, 740-741; In re Nan P. (1991) 230 Cal.App.3d 751, 757-758; In re Robert H. (2002) 96 Cal.App.4th 1317, 1329; Seiser & Kumli, Cal. Juvenile Courts and Procedure, supra, § 3.11, p. 3-18.) Rehabilitation is an end goal, whichis to be achieved through the means of medical treatment and other reformative (sometimes punitive) tools. (§ 202, subd. (b) [juvenile delinquents receive care, treatment. and guidancethat can include punishment consistent with rehabilitative objectives].) While adult criminal courts focus on punishment, the juvenile justice system seeks to rehabilitate a wayward minor. (n re Mvresheia W., at pp. 740-741.) Toward that end, the juvenile justice system has available a host of services and reformative tools. This panoply includes mental health and medical diagnosis and treatment, substance abuse education and testing. counseling, court orders to perform communityserviceor to pay fines andrestitution, placement in the family home or other appropriate setting or commitmentto juvenile hall or the Juvenile Justice, Department of Corrections and Rehabilitation, and education and other services for the minor’s parent or guardian. (See. e.g., §§ 635.1, 704, 713 [in certain counties], 726, subd. (a), 727, 727.2, 727.7, 729.3, 729.8, 729.9, 729.10. 730, subd. (a), 730.5, 730.6, 731, 6550.) All of these 9 statutes (which provide for appropriate treatmentand rehabilitative services, prograrns. and punishment) expressly require that the minorfirst be found to be a person describec in (or declared a ward under) section 602, or, sometimes, section 601 S Although minor contendsthe goals of the juvenile justice system suggest that a juvenile court should err on the side of incompetence. minor’s argument can be turned on its head. Given the wide range of services and corrective tools available to a system should “err on the side of incompetency” is not necessarilyin the best interests of minorsor of the state. To “err on the side of incompetency™ as to a competent minor deprives him orher ofthe full panoply ofreformative optionsavailable underthe juvenile justice system and thereby diminishes the chancesfor true rehabilitation. Indeed, one might argue that minor’s argument makes more sense with respectto the adult criminal system thanit does asto the juvenile justice system. Given the harsher goal of punishment for adults, it is arguably more importantto err on the side of incompetency for adult defendants (who, if convicted, are theoretically morelikely to be punishedthan treated) than it is for minors subject to sections 601 or 602 petitions. Nonetheless,it is well-established that adult criminal defendants claiming incompetency bear the burden of proof on the issue: the ultimate goal of the adult criminal system simply has no bearing on the issue. Wesee no reasonto treat minors differently from adults for purposes of allocating the burden of proof on incompetency. Incompetent adults and minors have the In certain counties, the court may refer a minor alleged to be described in section 602 for a mental health evaluation under sections 711 and 712. (See § 710, subd. (a).) In the case of a referral under section 7] 1, and a determination by the court under section 712 that the minoris seriously emotionally disturbed or has a serious mental disorder or a developmentaldisability, the multidisciplinary services prescribed under section 713 require that the minorfirst be adjudicated a ward of the court under section 602. 10 same right to due processin this context. Just as incompetent minors should be safeguarded from delinquency proceedings they cannot comprehendorassist in defending against, incompetent adults should be shielded from criminaltrial and possible punishment. In Medina J, our Supreme Court reasoned that placing the burden to prove incompetency on the defendant wasconstitutional in part because criminal defendants and their counsel have better access to relevant information. (Medina J, supra, 51 petitions. (See also People v. Nguyen (1990) 222 Cal.App.3d 1612. 1618-1619 [defendant seekingto be tried in juvenile court had burder. to prove his age]: Evid. Code, § 500 [“{e]xcept as otherwise provided by law, a party has the burdenof proofas to each fact the existence or nonexistence of whichis essential to the claim for relief or defense that he is asserting”].) Like Penal Code section 1369. section 709 adequately safeguards a minor’s federal due process rights becauseit affords the minor “a reasonable opportunity to demonstrate incompetency.” (See MedinaI, supra, 505 U.S.at p. 451.) Further, the text of section 709, subdivision (c) supports the conclusion that minors bear the burden of proving incompetency; the statute mandates suspensionof proceedings only upon finding that a minor is “incompetent,” rather than requiring suspension unless minor is found to be competent. In sum. we hold the court properly allocated minor the burden to prove incompetency. Substantial Evidence Supports the Court's Finding Minor Was Competent Wereviewa juvenile court’s finding of competence for substantial evidence. “The same standard governs our reviewof the sufficiency of evidence in juvenile cases as in adult criminal cases: ‘[W]e review the whole record to determine whetherany rationaltrier of fact could have found the essential elements of the crime .. . beyond a reasonable doubt. [Citation.] The record mustdisclose substantial 1] 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 bevond a reasonable doubt. [Citation.] In applying this test, we review the evidencein the light most favorable to the prosecution and presumein support of the judgmentthe existence of every fact the jury could reasonably have deduced from the evidence.” (Christopher F., supra, 194 Cal.App.4th at p. 471, fn. 6.) [Dr. Kojian’s] ultimate opinion [minor] was mentally incompetent ... .” (Christopher F., supra, 194 Cal.App.4th at p. 471.) In Alejandro G., the Court of Appeal affirmed the trial court’s finding the minor was competentto stand trial even though two psychologists opinedto the contrary. (Alejandro G., supra, 205 Cal.App.4th atp. 478.) “The fact that both doctors opined Alejandro was not competent does not prove a lack of substantial evidence to support the court’s finding. The court is not under any obligation to adopt the doctors’ opinions. Such a requirement would undermine the court’s role in determining a minor’s competency.” (J/d. at p. 480.) Here, the court reviewed Dr. Kojian’s report and the modification petition and detention records, and then explained at length its reasons for finding minor had not sustained his burden to prove incompetence. The court articulated its reasons for declining to adopt Dr. Kojian’s opinion. Those reasonsare supported by substantial evidencein the record. The court found that certain statements made by minorreflected his understanding of the nature of the proceedings and charges against him. The court noted that minor’s school believed his cognitive and adaptive delays may have been drug inducedand that his 2009 testing did not show cognitive or adaptive delays. Minor did not call any other witnesses(e.g., his mother or teachers) to support his claim of 6 . : : - : In an argumentraised in minor’s replybrief, he suggests we applythe standard of review applicable to findings of sanity. We do not considerissues raised in the reply brief. (People v. King (1991) 1 Cal-App.4th 288, 297, fn. 12.) 12 incompetence. Herefused to submit to any psychological tests. Substantial evidence supports the court’s finding he failed to meet his burden to demonstratehis incompetence to standtrial. DISPOSITION The judgmentis affirmed, IKOLA,J. WE CONCUR: RYLAARSDAM,ACTINGP.J. THOMPSON,J. 13 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is P.O. Box 138, Verdugo City, CA 91046. On July 24, 2013, I served the foregoing document described as: APPELLANT'S PETITION FOR REVIEW on all interested parties in this action by placing a true copy ____._thereofenclosedinasealedenvelopeaddressedasfollows: Kamala D. Harris, Attorney General District Attorney Kathryn Kirschbaum, Deputy Lamoreaux Justice Center Attorney General 341 The City Drive South 110 West A Street, #1100 Orange, CA 92863-1569 Post Office Box 85266 San Diego, CA 92186-5266 Rosario V. Clerk of the Court c/o Cindy Brines For Delivery to: P.O. Box 138 The Honorable Deborah Chuang Verdugo City, CA 91046 Superior Court, County of Orange 341 The City Drive South Appellate Defenders, Inc. P.O. Box 14170 555 West Beech Street, Suite 300 Orange, CA 92863-1569 San Diego, CA 92101-2396 e-served at eservice-criminal@adi-sandiego.com on July 24, 2013 California Court of Appeal Fourth Appellate District, Division Three 601 W. Santa Ana Blvd. Santa Ana, CA 92701 e-submitted with the Clerk of the Court using the Online Form provided by the California Court of Appeal, Fourth Appellate District on July 24, 2013. By MAIL I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Verdugo City, California. I declare I am a member of the Bar of the Supreme Court of California. Executed under penalty of perjury on July 24, 2013, at Verdugo City, California. . 4 CINDY BRINES