IN RE R.V.

Appellant’s Reply Brief on the Merits

Cal.June 30, 2014

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SUPREME COURT FILED In re R.V., ) A Person Coming Under the Juvenile +) JUN 3 0 2014 Court Law, ) THE PEOPLE, ) Frank A. McGuire Clerk ) $212346 Plaintiff and Respondent, ) Deputy | ) v. ) Ct. App. 4/3 ) No. G046961 RV., ) ) Orange County ) Super. Ct. No. DL034139 Defendant and Appellant. ) ) APPEAL FROM THE JUDGMENTOF THE SUPERIOR COURT OF ORANGE COUNTY THE HONORABLE DEBORAH CHUANG, JUDGEPRESIDING APPELLANT’S REPLY BRIEF ON THE MERITS CINDY BRINES State Bar # 169125 P.O. Box 138 Verdugo City, California 91046 Telephone:(818) 249-4344 cindybrines@sbcglobal.net Attorney for Appellant Appointed by the Supreme Court ofCalifornia TABLE OF CONTENTS REPLY BRIEF ON THE MERITS ARGUMENT I. Il. Til. WELFARE AND INSTITUTIONS CODE SECTION 709 REQUIRES A JUDICIAL DETERMINATION OF JUVENILE COMPETENCY BASED ON THE FINDINGS OF A NEUTRAL EXPERT AND RECORD EVIDENCE WITHOUT REQUIRING EITHER PARTY TO BEAR THE BURDEN OF PROOF A. There Is No Presumption OfCompetency For Juveniles: Section 709 Does Not Allocate The Burden OfProofTo Either Party B. Policy Concerns Support That Section 709 Does Not Allocate The Burden OfProofTo Either Party 1. The Minor and His Attorney Do Not Have Superior Access To Information Relevant To Competency 2. A System That Does Not Allocate The , Burden To Either Party or That Places The Burden OnThe Prosecution Would Not Provide The Minor With The Wrong Incentives Cc. Section 709 Sets Forth A Separate Competency Structure For Minors Recognizing The Specific Needs ofJuveniles BASED UPON THE PRINCIPLES DISCUSSEDIN PEOPLE V. AULTAND PEOPLE V. CROMER, DE NOVO REVIEW IS APPROPRIATE TO ASSESS A JUVENILE COURT’S FINDING OF COMPETENCY UNDER EITHER STANDARD OF REVIEW, THE EVIDENCE PRESENTED AT THE COMPETENCY HEARINGIN THIS CASE DEMONSTRATEDBYA PREPONDERANCE OF THE EVIDENCE THAT APPELLANT WAS INCOMPETENT 10 10 11 13 16 21 TABLE OF CONTENTS CONT. CONCLUSION CERTIFICATE OF COMPLIANCE ii TABLE OF AUTHORITIES Page(s United States Supreme Court Cases: Ornelas v. U.S. (1996) 517 U.S. 690 [116 S.Ct. 1657, 134 L.Ed2d 911] 18 Thompson v. Keohane (1995) 516 U.S. 99 [116 S.Ct. 457, 133 L.Ed.2d 383] 18 California Cases: In re Alejandro G. (2012) 205 Cal.App.4th 472 11 People v. Alvarez (1996) 14 Cal.4th 155 19 In re Christopher K. (2001) 91 Cal.App.4th 853 6 People v. Ault (2004) 33 Cal.4th 1250 16, 18, 20 People v. Cromer (2001) 24 Cal.4th 889 16, 18, 20 People v. Jones (1998) 17 Cal.4th 279 19 People v. Leyba (1981) 29 Cal.3d 591 19 People v. Marshall (1997)15 Cal.4th 1 22 People v. Medina (1990) 51 Cal.3d 870 10 People v. Mickey (1991) 54 Cal.3d 612 19 People v. Overstreet (1986) 42 Cal.3d 891 9 People v. Rells (2000) 22 Cal.4th 860 7, 8,9, 10 People v. Samuel (1981) 29 Cal.3d 489 22 Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847 4,13 Statutes: Evidence Codesection 500 3,7,9 Evidence Codesection 604 6 Penal Code section 1367 9, 14 ili TABLE OF AUTHORITIES CONT. Page(s Statutes cont.: Penal Codesection 1368 4 Penal Codesection 1369 4, 5, 6, 8, 9, 12 Penal Codesection 1370 5,9 Penal Codesection 1372 8,9 Penal Codesection 1376 9 Welfare and Institutions Code section 601 2 Welfare and Institutions Code section 602 2 Welfare andInstitutions Code section 709 2-9, 13, 14, 15, 19 iv IN THE SUPREME COURTOF THE STATE OF CALIFORNIA In re R.V., ) A Person Coming Under the Juvenile _) Court Law, ) THE PEOPLE, ) ) S$212346 Plaintiff and Respondent, ) ) v. ) Ct. App. 4/3 ) No. G046961 R.V., ) ) Orange County ) Super. Ct. No. DL034139 Defendant and Appellant. ) ) APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF ORANGE COUNTY THE HONORABLE DEBORAH CHUANG, JUDGE PRESIDING APPELLANT’S REPLY BRIEF ON THE MERITS Appellant files the following Reply Briefon the Merits to respondent’s Answer Briefon the Merits (“RB”). The failure to respond to any particular argumentshould not be construed as a concession that respondent’s position is accurate. It merely reflects appellant’s view that the issue was adequately addressed in Appellant’s Opening Brief on the Merits (“AOB”). ARGUMENT L WELFARE AND INSTITUTIONS CODE SECTION709 REQUIRES A JUDICIAL DETERMINATION OF JUVENILE COMPETENCY BASED ON THE FINDINGS OF A NEUTRAL EXPERT AND RECORD EVIDENCE WITHOUT REQUIRING EITHER PARTY TO BEAR THE BURDEN OF PROOF The juvenile court and the Court ofAppeal erred by presuming appellant was competent and by requiring him to prove incompetency. (AOB9, 30.) Under Welfare and Institutions Code section 709,' there is no presumption of competence and neither party is allocated the burden of proof. (AOB 9-27.) Alternately, the prosecution should bear the burden of proofin ajuvenile competency hearing. (AOB 27-30.) Respondent disagrees. Respondent contendsthat a minor subject to a section 601 or 602 petition is presumed competent and bears the burden of proving incompetence by a preponderanceofthe evidence. (RB 4.) Respondentarguesthat section 709 contains an implied presumption of competence and the burden ofprooffalls to the party whois alleging incompetence,therefore, the juvenile court did not err by presuming appellant competent and by requiring him to prove his incompetence. (RB 4.) Additionally, respondent argues that under the plain language of section ' All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. 709 and Evidence Code section 500, appellant bore the burden ofproof as the party alleging incompetence. (RB 4.) Furthermore, respondent argues that as a matter ofpolicy, placing the burden on appellant was proper because (1) minor was a party with accessto the type ofinformation necessary to prove incompetence, (2) placing the burden on the People when the minor alleges incompetence would create improperincentives for minors, and (3) a contrary rule would be inconsistent with existing presumptions in juvenile law. (RB 5.) Respondent agrees with appellant that section 709 neither contains an express presumption ofcompetence,nor states which party bears the burden ofproof. The parties disagree, however, on the reasonable interpretation of the statute. (RB 10, 11.) A. There Is No Presumption OfCompetency For Juveniles; Section 709 Does Not Allocate The Burden OfProofTo Either Party Respondentasserts that the language ofsection 709, specifically, subdivisions (a) though (c), establish an implied presumption that a minor is competent. (RB 11-12.) Respondent arguesthat the fact that competency proceedingsare triggered by the declaration of a doubt as to competency indicates an initial presumption of competency. This interpretation is not reasonable. First, the language of section 709, subdivision (a), which states “—During the pendency ofany juvenile proceeding, the minor's counsel or the court may express a doubt as to the minor's competency,” merely establishes which parties may declare a doubt as to the minor’s competency, it does not imply a presumption of competency. The adult competency provisions bear this out. Penal Code section 1368, explains the process for declaring a doubt about competency. The presumption ofcompetency, however, is found in Penal Code section 1369, subdivision (f). Ifthe process ofdeclaring a doubt were enough, then § 1369, subdivision (f) would be superfluous. Additionally, the declaration ofa doubt as to a minor’s competency simply raises a question as to whether the minor is competent. It does not imply a presumption ofcompetency. As appellant explained in his opening briefon the merits, because there is a great deal of individual variability in the level of development among youths at any given ageit is difficult to pinpointa particular age at which youths attain adult-like psychological capacities. (AOB 20,citing Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 861.) It follows that at the time a doubt is declared as to a minor’s competency, the minor may not have yet ever achieved Dusky competence. A presumption of competency would, thus, be developmentally and factually inappropriate. On the other hand, when no doubt about competencyis raised, the parties and the court proceed because the juvenile's competencyis sufficiently clear that no expert is required and no special proceeding must be held to make the competency determination. Respondent further argues that because section 709, subdivision (c), provides for suspension ofthe proceedingsifthe minoris found to be incompetent, the fact to be established is incompetence, not competence. (RB 11.) Respondent’sinterpretation of subdivision (c) is incorrect because respondent fails to consider subdivision (d) in conjunction with subdivision (c). Section 709, subdivisions (c) and (d) must be considered together. Subdivision (c) providesthat, “Ifthe minoris found to be incompetent by a preponderance ofthe evidence, all proceedings shall remain suspendedfor a period oftime that is no longer than reasonably necessary to determine whether there is a substantial probability that the minorwill attain competencyin the foreseeable future, or the court no longerretains jurisdiction, while subdivision (d) provides that, “Ifthe minor is found to be competent, the court may proceed commensurate with the court’s jurisdiction. (§ 709, subds. (c), (d).) Both subdivisions, taken together, provideinstructions for the court once a finding has been made regarding the minor’s competency. Moreover, the adult statute includes the same instructions as to how the court should proceedifthe court finds the adult defendant competent (Pen. Code, § 1370, subd.(a)(1)(A)), or incompetent (Pen. Code, § 1370, subd. (a)(1)(B)), yet the Legislature expressly set forth a presumption ofcompetencyin the adult context. (Pen. Code, § 1369, subd.(f).) The court was notleft to infer from the instructions howit should proceedafter it made findings at the competency hearing. Ifthe Legislature had wanted to presume competencyin section 709, it would have doneso expressly, and notleft it to implication. The sameis true with respondent’s argument that because the expert is charged with evaluating “whether the minor suffers from a mental disorder, developmental disability, developmental immaturity, or other condition and, if so, whether the condition or conditions impair his competency,” the minor is presumed competent. (RB 1-12,citing § 709, subd. (b).) Section 709, subdivision (b), similar to Penal Code section 1369, subdivision (a), provides for an expert to evaluate the minor to determine whether the minor is competentor not after a doubt has been declared. Yet again, the adult statutes provide a clear presumption of competency. (Pen. Code, § 1369, subd. (f).) Having an expert evaluate the minor doesnottrigger a presumption ofcompetency. The absence of a presumption ofcompetency in section 709 strongly suggests that the Legislature did not intend to presumeall juveniles are competentas it did in the adult context. Respondentsuggests that because the express presumption of competencyfor adults is contained in a subdivision detailing how to instruct the jury in a jury trial the Legislature may have found it unnecessary to include the express wording in the juvenile context because juvenile matters are handled by the court, rather than a jury. (RB 14.) Respondent’s reasoning is unsound. Although Penal Code section 1369, subdivision (f), refers to a presumption ofcompetency for adults in a jury competencytrial, the presumption for adults applies in all competency cases whether the competency determination is made by the court or a jury. (See Evid. Code, § 604; Pen. Code § 1369; In re Christopher K. (2001) 91 Cal-App.4th 853, 857 [there is no principled distinction between a jury's reliance on a presumption andthe court's when the court is acting as the trier of fact].) Therefore, it does not logically follow that the Legislature omitted an express presumption in the juvenile context because there is no jury. Respondent contends that presuming all minors competent would be proper and necessary. To support this position, respondentrelies on the Court ofAppeal’s reasoning that presuming a competent minorto be incompetent would deprive him or her ofthe full panoply ofreformative options available under the juvenile justice system. (RB 16-17.) The Court ofAppeal essentially said that trial courts should err on the side of competency because there are so many resourcesavailable to minors once they are declared a ward ofthe court. This argumentfails to consider the bigger picture. Being able to avail oneself ofthese resources presupposes that the minor is competent. This is so, in part, because a minor needs to be competent so that he can comprehend the consequencesofhis actions and the need to reform. The goal ofrehabilitation is lost on a minor whois not competentto rationally and factually understand the proceedings against him or her. Being adjudicated while incompetent would certainly not be in the best interest of the minor. Moreover, this reasoning disregards the basic premise that a minor cannotbe adjudicated while incompetent. Respondent argues that because a minoris impliedly presumed competent, “the party alleging incompetence bears the burden ofproofas to each fact the existence or nonexistence ofwhichis essential to the claim for relief or defense that he is asserting.” (RB 11, 12, quoting Evid. Code, § 500.) Respondent relies on People v. Rells (2000) 22 Cal.4th 860, to argue that the presumption and burdenestablished in the adult context should equally apply to section 709. (RB 13-14.) The premise ofrespondent’s argumentis faulty because section 709 doesnot establish a presumption ofcompetence for minors. But, even ifit did, the question ofcompetency is not necessarily considered a claim for relief or a defense under Evidence Code section 500. In People v. Rells, supra, this Court was tasked with determining if the presumption of competence and the burden ofproof expressly provided under Penal Code section 1369 applied equally under Penal Code section 1372. Ultimately, this Court held both the presumption and the burden for a competency restoration hearing under 1372 were the same as under Penal Code section 1369. (Rells, supra, 22 Cal.4th at p. 868.) In so holding, this Court noted that “ifmental incompetence were to be characterized as either a ‘claim for relief’ on the part ofa defendant or a ‘defense’ at his disposal, Evidence Code section 500, as a general matter at least, would impose the burden of proof on the defendant himself rather than the People.” (Jd. at p. 868, fn.4, citations omitted.) The key word hereis ifwhich indicates that this Court has never characterized mental incompetenceas either a claim of relief or a defense. Regardless ofwhether mental competencyis a claim ofrelief or a defense, Rells actually supports appellant’s position that section 709 does not allocate the burden ofproofto either party. In Rells, this Court was dealing with the statutory schemeestablished for adults. The law that governs inquiry into the mental competence ofan adult defendantin a criminal prosecution consists of a statutory schemethat is codified in chapter 6 oftitle 10 ofpart 2 ofthe Penal Code, commencing with section 1367 and ending with section 1376. Because Penal Code section 1372 is part ofthat statutory scheme,it reasonably follows that the same presumption and burden would extend throughout that scheme. Indeed, in finding that the defendant in Rel/s was presumed competent and had the burden ofproofat a restoration hearing, this Court reasoned that a restoration hearingis triggered by a later finding ofcompetence by a mental health official which puts the defendant in the same position as he was originally with the presumption ofcompetence and burden under Penal Code section 1369. (Rells, supra, 22 Cal.4th at p. 868.) Reils does not mandate that the presumption of competency and the burden ofproofestablished in the adult statutory scheme apply to section 709 nor does such an assumption make sense. Section 709 is not part ofthe adult statutory scheme. Appellant has argued that because the Legislature specifically adopted some procedures from the adult statutes and chose to omit others that the omitted portions ofthe adult competency statutes must have beenleft out intentionally. Because the Legislature is deemed to be awareofexisting laws whenit enacts a statute, it can be assumed that the Legislature was aware ofPenal Code sections 1369 and 1370 whenit enacted section 709 and chose notto include a presumption ofcompetence for juveniles or allocate the burden ofproofto the minor. (Peoplev. Overstreet (1986) 42 Cal.3d 891, 897.) Even if mental competencyis considered a claim forrelief or a defense, Evidence Code section 500 gives the court discretion to shift the burden basedonother “factors”including the “knowledgeofthe parties concerning the particular fact” implicated therein, the “availability ofthe evidenceto the parties,” the “most desirable result in terms ofpublic policy in the absence ofproofofthe particular fact,” and the “probability ofthe existence or nonexistenceofthe fact” (Rells, supra, 22 Cal.4th at p. 868, fn. 4, citing Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965) p. 89). Based on these factors, juvenile competency issues require a shifting ofthe burden, as will be explained below. B. Policy Concerns Support That Section 709 Does Not Allocate The Burden OfProofTo Either Party 1. The Minor and His Attorney Do Not Have Superior Access To Information Relevant To Competency Respondent contendsthat like an adult defendant, the minor and his attorney have superior access to information relevant to competency. (RB 20-24.) Respondentrelies on People v. Medina (1990) 51 Cal.3d 870 (Medina I), to argue that while the court-appointed expert plays a role ina juvenile competency determination, the expert’s evaluation does not lessen the superiority of the minor’s access to relevant information as compared to the People’s. (RB 21-22.) Respondent suggests that because this Court in Medina I found the defendant was the party with superior access to information despite that an expert was involved in the process the sameis true here. (RB 21-22, citing Medina I, supra, 51 Cal.3d at p. 885.) In a juvenile proceeding, defense counsel may often be in the best position to raise the initial doubt about the minor’s competency. However, 10 once the court finds substantial evidence of incompetency and appoints an expert in juvenile development to examine the minor, the expert becomes the person with the best access to relevant information and the necessary skill to assess it properly. Moreover, in juvenile court, unlike adult court, the probation officer plays a critical role in the entire process from the initial detention hearing to disposition. Defense counsel and the prosecution are responsible for providing identifying information to probation, butit is the probation department’s responsibility to collect the relevant information from schools, doctors, and other relevant sources to present to the expert. The facts ofthe instant case aptly illustrate that respondent’s position is unworkable in juvenile court. Here, Dr. Kojian, the court-appointed expert, had access to appellant’s school records, testing results, police reports, probation reports, prior medical/psychiatric history, and information from appellant’s mother. Although respondent believes defense counselis supposed to be the party with better access to relevant information, this was not the case here. The expert had accessto all relevant information andyet, the court only relied on the expert’s opinion and disregarded counsel’s opinion. Similarly in Jn re Alejandro G. (2012) 205 Cal.App.4th 472, once defense counsel declared a doubt, the evidence the juvenile court relied on to makeits finding came from the two experts, not defense counsel. 2. A System That Does Not Allocate The Burden To Either Party or That Places The Burden On The Prosecution Would Not Provide The Minor With The Wrong Incentives Respondentasserts that appellant’s argumentthat neither party 11 should bear the burden ofproofshould be rejected as unworkable in cases wherethe minor is alleging incompetence because no one would produce evidence either way. (RB 23.) Respondentfails to recognize that the nature ofjuvenile proceedings are less formal and require more of a collaborative process than adult proceedings. Ajuvenile court system where neither party bears the burden would not cause a lack of evidence being produced because the majority ofthe evidence ofcompetency or incompetencywill inevitably come from the court-appointed expert and the documents the expert relied upon to form his opinion. In addition, juvenile proceedings are less adversarial than adult proceedings. The Legislature recognized this by not including specific requirements regarding whoshall offer evidence as provided for in Penal Code section 1369, subdivisions (b)(1), (b)(2), (c), (d), and (e). This case demonstrates how this works since the evidence the juvenile court relied upon in ruling on appellant’s competency was the expert’s testimony and the documents the expert considered. Respondentalso asserts that ifthe People have the burden, it would provide the wrong incentives for the minor. (RB 22-23.) Specifically, respondentarguesthat ifthe People are charged with proving competence, the minorwill have an incentive to remain silent and refuse to submit to a full evaluation or to competency testing. (RB 23.) Respondent further argues that in contrast, a minor who bears the burden ofproving incompetence would have every incentive to participate in testing, cooperate with the evaluation, and provide access to relevant witnesses. 12 (RB 24.) This argumentis premised on a faulty assumption - that minors are manipulators out to game the system, a premise unlikely to be true with a minor for whom there is a question about competency. Interestingly, the facts ofthe instant case actually run counter to respondent’s argument. Here, appellant’s counsel declared a doubt as to his competency and was allocated the burden ofproof, yet appellant did not participate in all of the testing requested by the expert. C. Section 709 Sets Forth A Separate Competency Structure For Minors Recognizing The Specific Needs ofJuveniles The plain language of section 709 showsthe statute did not allocate the burden ofproofto either party in juvenile competency proceedings either explicitly or by implication. Even ifthe Legislative history were to be considered despite the plain language ofthe statute, the Legislative history does not support respondent’s interpretation ofthe statute. Respondent argues that the Legislative history demonstrates that the purpose of enacting section 709 was to codify competency procedures for juveniles, similar to those afforded adults. (RB 18.) Respondent argues that the Legislature recognized particular areas where different procedures were necessary for juveniles and added those to an already existing adult scheme. Specifically, the Legislature recognized that the type of “developmental immaturity” discussed in Timothy J., supra, should be incorporated into the statutory definition for juvenile competency and that the experts charged with evaluating minors should have specialized training in the field of child development. (RB 18.) 13 Whileit is true that the Legislature sought to codify competency procedures forjuveniles similar to those afforded adults, in looking closer at the plain language used in the Legislative history, the words “similar to those afforded adults” used in the Bill Analysis” indicates that the Legislature did notintend to codify competency procedures for juveniles identical to those that apply to adults. If “developmental immaturity” and “specialized training for experts evaluating minors” were the only areas the Legislature recognized as different and necessary forjuveniles, the Legislature could easily have included just that language and indicated that all other sections ofPenal Code dealing with competency shall apply in juvenile competency determinations. Or the Legislature could have repeated all the language from the adult Penal Code sections and just added the two specialized areas for juveniles. The Legislature did not do this however. Instead, Section 709 includes additional procedures that are unique to juvenile competency determinations while adding specific selected similar sections from the adult competencystatutes that appropriately apply to juveniles. This indicates that the drafters of section 709 deliberately chose which procedures from Penal Code section 1367et seq. to include and which proceduresto leave out. The Legislature also recognized that the absence of statutory authority for deciding juvenile competencycreated a lack of certainty and disparate application of existing case law. (See Exhibit A ofRespondent’s 2 See Exhibit A of Respondent’s Motion for Judicial Notice, filed concurrently with RB. 14 Motion for Judicial Notice.) The Legislative recognition ofthe absence of statutory authority for deciding juvenile competencyindicates that the Legislature did not view the Penal Code provisions on competency as existing authority for juvenile competency. Hence, the Legislature established section 709 to set forth a separate competencystructure for minors. Nothing in the languageorlegislative history of section 709 supports the insertion by implication of a presumption of competencyor burden of proofthat the Legislature omitted. In the present case, the court's presumption that appellant was competent andits imposition ofthe burden ofproof on the defense to prove appellant’s incompetency was fundamentally unfair and deprived appellant of his due processrights. 15 ARGUMENT Il. BASED UPON THE PRINCIPLES DISCUSSED IN PEOPLE V. AULTAND PEOPLE V. CROMER, DE NOVO REVIEW IS APPROPRIATE TO ASSESS A JUVENILE COURT’S FINDING OF COMPETENCY Respondent contends that the Court ofAppeal properly applied the substantial evidence standard ofreview and properly upheld the juvenile court’s finding because competency determinations are factual findings. (RB 26-27.) Although a deferential standard ofreview has traditionally been applied to adult competency findings, the same standard should not apply to review ofajuvenile court’s competency finding. Based upon the principles discussed in People v. Ault (2004) 33 Cal.4th 1250, and People v. Cromer (2001) 24 Cal.4th 889, de novo review is appropriate to assess a juvenile court’s finding of competency. In arguing this Court should apply a deferential standard ofreview, respondent contends that competency determinations are not mixed questions of law and fact. (RB 30.) Respondent makesthis argument even though this Court has recognized that competency determinations involve mixed questions of law and fact. (See Ault, supra, 33 Cal.4th at p. 1265, fn. 8; Cromer, supra, 24 Cal.4th at pp. 894-895.) Despite this, respondent argues that competency determinations are purely subjective and specific to the minorat issue. (RB 30.) 16 In arguing that competency determinations are factual, respondent likens competency determinations to rulings on whether a minoris fit or unfit for treatment underjuvenile court law and whether a capital defendant is mentally retarded. (RB 27-28.) These factual issues are not analogous to competency determinations because they are missing the addedstep of applying the facts to a constitutionally based legal standard like the Dusky standard. Competency determinations are mixed questions oflaw andfact. First, it is necessary for the juvenile court to review the expert’s findings as to the reasons for the minor’sdeficits in his abilities and to establish a detailed accountofthe basis for the expert’s opinion on competency. Second,the juvenile court must carefully weigh those findings and decide whether those findingsestablish that the minorlacks a sufficient present ability to consult with counsel and assist in preparing a defense with a reasonable degree of rational understanding, or lacks a rational as well as factual understanding,ofthe nature ofthe charges or proceedings against him or her. That inquiry is a predominantly legal question. Thus, the ultimate determination of competency is a mixed question of law andfact. Respondent further contends that even if competency determinations are mixed questions, the substantial evidence standard is still appropriate. (RB 31-35.) To support a substantial standard ofreview, respondent argues that competency determinations do not require application of an objective legal test to the historic facts, are dependent upon the juvenile court’s first- person advantage, andare highly individualized and unlikely to have wide- 17 spread precedential value. (RB 33-34.) In Ornelas v. U.S. (1996) 517 U.S. 690 [116 S.Ct. 1657, 134 L.Ed2d 911], the Court held that questions ofreasonable suspicion to stop and probable cause to make a warrantless search were mixed questions of law and fact and should be reviewed de novo. The Court viewedthefirst step as identifying all ofthe relevant historical facts know to the officer at the time ofthe stop or search with the second step being a determination of whether, under a standard ofobjective reasonableness, those facts would give rise to a reasonable suspicion justifying a stop or probable cause to search. (Ornelas, supra, 517 U.S.at pp. 696, 697.) The Court adopted a de novo standard ofreview even though those questions are fact-intensive, and multi-faceted, acquire content only through application, and will rarely serve as precedent for another case. (/d., at pp. 697, 698, quoting I/linois v. Gates (1983) 462 U.S. 213, 238, fn. 11 [103 S.Ct. 2317, 76 L.Ed.2d 527].) The mixed questions of competency determinations are no less deserving of de novo review than questions ofreasonable suspicion to stop and probable cause to make warrantless searches. Although a deferential standard ofreview has traditionally been applied whenresolution ofan issue takes place in open court on full record and dependsheavily onthetrial court's appraisal ofwitness credibility and demeanor, (Ault, supra, 33 Cal.4th at p. 1267; Cromer, supra, 24 Cal.4th at p. 901; Thompson v. Keohane (1995) 516 U.S.99, 111, 114 [116 S.Ct. 457, 133 L-.Ed.2d 383]), competency determinations made at juvenile competency hearings do notreally depend on witness credibility 18 determinations. While the initial decision to hold a competency hearing is oftentimes made in the courtroom with a “first-person vantage,” juvenile courts generally base their competency findings, in large part, on evidence obtained outside ofthe courtroom. Section 709 sets up a framework where juvenile courts rely on an expert’s evaluation ofthe minor to maketheir determinations. The juvenile court does not havea “first-person vantage” on the expert’s out-of-court examination ofthe minor. Witness credibility is rarely the focus forjuvenile competency hearings. In addition, the court often relies on the minor’s history, probation reports, school reports, police reports, social workerreports and other relevant documents regarding the minor’s competency. On review, appellate courts can readily assess the credibility ofthese reports relied on by the expert and determineifthe court’s interpretation of those reports comports with the Dusky standard. The juvenile court does not have any moreofa “first-person vantage” to make a competency determination then it has for determinations made from events that occurred outside ofthe courtroom that are reviewed de novo. (See People v. Jones (1998) 17 Cal.4th 279 [confession madein police car and at hospital]; People v. Alvarez (1996) 14 Cal.4th 155 [reasonableness of search of defendant’s car]; People v. Mickey (1991) 54 Cal.3d 612 [whether defendant’s statements made during a planeflight were in violation of Miranda}; People v. Leyba (1981) 29 Cal.3d 591 [reasonableness of investigative stop ofdefendant’s car].) 19 Another key factor in determining the standard ofreview is whether the trial court makes an individual-specific decision or one likely to have precedential value. (Ault, supra, 33 Cal.4th at p. 1267; Cromer, supra, 24 Cal.4th at pp. 895, 901.) Determinations that are reviewed de novo, such as whatconstitutes “in custody” or a “reasonable search” provide guidance in future situations. De novo review ofwhat constitutes competency would similarly unify precedent for the courts and provide guidance to juvenile expert evaluators, probation departments, and attorneys on reaching a proper competency determination. The reasoning in Cromer and Ault weighs strongly in favor of independent review ofajuvenile court’s determination of competency. Appellate courts should independently review ajuvenile court’s finding that a minor is competent to prevent a miscarriage ofjustice that mightresult from permitting a competency determination to rest upon the legal determinations ofa single judge. 20 ARGUMENT il. UNDER EITHER STANDARD OF REVIEW, THE EVIDENCE PRESENTED AT THE COMPETENCY HEARINGIN THIS CASE DEMONSTRATEDBYA PREPONDERANCE OF THE EVIDENCE THAT APPELLANT WAS INCOMPETENT Respondent argues that under the substantial evidence standard of review this Court should affirm the juvenile court’s finding because the juvenile court could reasonably reject the evidence of incompetence. (RB 35.) Specifically, respondent argues that because Dr. Kojian was unable to administer testing, the court was justified in rejecting his opinion. (RB 35.) Respondentfurther argues that the court was justified in rejecting Dr. Kojian’s opinion because there was no evidence in the record about why minor was housedin a special unit and because the documentation from appellant’s school did not clearly indicate any developmentaldisability. (RB 35.) Moreover, respondent arguesthat the court’s finding that many of appellant’s responses to Dr. Kojian were “appropriate” was substantial evidence of competency. (RB 36-37.) Respondent’s arguments have no merit. Under either standard ofreview, the evidence did not support the juvenile court’s finding that appellant failed to prove his incompetency. For an appellate court to find that a juvenile court’s findings were supported by substantial evidence, that evidence must be "reasonable, credible, and of 21 solid value." (People v. Marshall (1997)15 Cal.4th 1, 35.) Noreasonabletrier of fact could have rejected the expert’s finding of incompetency based on thefailure to administer the REY 15 test, school reports from 2011, and a few isolated statements by appellant. Here, the appellate court failed to examine whether the juvenile court’s reasons for rejecting the expert’s opinion of incompetency and finding appellant competent were reasonable, credible and of solid value. This Court has addressed the difficulty of examining people with competency issues. (People v. Samuel (1981) 29 Cal.3d 489.) In Samuel, the expert was unable to complete psychological testing; yet, this Court was satisfied that the expert’s opinion and the opinion of several others was based on observations that Samuel’s condition would seriously impair his ability to assist his counsel at trial. (U/d., at p. 501.) This conclusion was supported by Samuel’s long history ofmental illness, his tolerance for massive doses ofpsychotropic drugs, his extremely regressive behavior, his low intelligence, and his involuntary psychological symptoms. (/d., at p. 504.) This Court foundthatthe trier of fact could not reasonably reject the persuasive and uncontradicted evidence proving Samuel’s incompetence. (id., at p. 506.) Asin Samuel, the expert’s opinion in this case that appellant was incompetent even without the REY 15 test, was supported by extensive evidence from Dr. Kojian’s interviews with appellant, appellant’s mother, teachers, and social worker, the probation department, and the police. Dr. Kojian testified that he was 100% sure ofhis opinion and he would not 22 have changedhis opinion even if he had given appellant the tests for malingering. (RT 45, 46.) Given the plethora of evidence supporting incompetence, the juvenile court’s reliance on the failure to administer testing for malingering was not reasonable. Respondentasserts that it was reasonable for the court to reject the documentation from appellant’s school because it did not clearly indicate any developmental disability. (RB 35-36.) This assertion has no merit. Respondent, as well as the juvenile court, misinterpreted the Manifestation Determination Report. The section ofthe report that the court referred to actually dealt with whether appellant met the criteria for mental retardation. (Appellant’s Judicial Notice Exhibit A, p. 22.) The Manifestation Determination Report had concluded that appellant’s behavior was a manifestation ofhis disability which was apparently a mood disorder with extremely low cognitive and comprehensiveskills. (Appellant’s Judicial Notice Exhibit A, p. 23.) The court’s reliance on this aspect ofthe report was not proper; a minor does not need to be mentally retarded to be incompetent. Additionally, the court did not consider that the testing done in 2011, which was included in the Manifestation Determination Report, showedthat appellant had significant cognitive and adaptive delays. (Appellant’s Judicial Notice Exhibit A, pp. 18-20.) Rejecting Dr. Kojian’s opinion based on the misinterpretation ofthe Manifestation Determination Report was error and not reasonable. With respect to the juvenile court’s finding that appellant’s responses were “appropriate,” the court focused on a few isolated statements and did 23 not look at appellant’s overall lack ofunderstanding ofthe nature ofthe proceedings against him or the evidence ofhis inability to rationally assist in the preparation ofhis defense. Substantial evidence did not support that appellant was competent. Noreasonabletrier of fact could have rejected the expert’s finding of incompetencybased on the reasons provided by the juvenile court. The Court ofAppeal failed to determine whetherthejuvenile court’s reasons for declining the expert’s opinion ofincompetency and finding appellant competent were reasonable, credible and ofsolid value. Therationale as to why no reasonable trier of fact could have rejected the expert’s finding of incompetencyapplies equally to a de novo standard ofreview. As appellant argued in this brief, as well as Appellant’s Opening Brief on the Merits, the juvenile court considered irrelevant and inconsequential factors compared with the extensive evidence of incompetence. ° Dr. Kojian observed that appellant had inappropriate affect?, was very slow and deliberate in his speech and movements;he was stiff legged, his gait was inhibited and he appeared to be responding to internal stimuli. (RT 47, 52.) Appellant was somewhatcatatonic in his presentation. (CT 38.) ° The school records indicated that appellant was very slow and that all his testing came back very low. (See Appellant’s Judicial Notice Exhibit A, pp. 4-23.) > Thereporter’s transcript uses the word “effect”. (RT 47.) 24 ° Appellant had difficulty explaining his charges, appeared to have a difficult time understanding the questions asked ofhim and was very unresponsive and confused about the incident. (RT 53, 54.) ° Dr. Kojian found evidence for response latency, which is a significant clue in assessing whether there is any cognitive impairment. (RT 52.) ° The police report stated that appellant appeared to havea difficult time understanding the officer’s questions and was very unresponsive to his questions. ° The record also indicated that on February 17, 2012, probation had requested terminating probation for appellant on a prior case because of appellant’s mental disabilities. (See Appellant’s Judicial Notice Exhibit A, pp. 1-2.) ° Appellant had a history ofmental health problems. (CT 40; RT 53, 54.) e A letter from appellant’s social worker finding that appellant has a developmental disability. (See Appellant’s Judicial Notice Exhibit A,p. 3.) Undereither standard ofreview, the evidence did not support the juvenile court’s finding that appellant was competent. 25 CONCLUSION Forall ofthe reasons articulated in this brief, as well as Appellant’s Opening Brief on the Merits, appellant respectfully urges this Court to find that: There is no presumption of competency for juveniles once substantial evidence raises a doubt as to the minor’s competency; Neither party bears the burden ofproofat the subsequent hearing wherein the court considers whether the minor is competent; The standard ofreview ofajuvenile court’s finding of competency should be independent, de novo review because the competency question ultimately touches upon a minor’s constitutional right not to be adjudicated when incompetent; Finally, in light ofall the evidence presented at appellant’s competency hearing, appellant was incompetentandthejuvenile court’s true finding should be vacated. DATED: June 27, 2014 Respectfully submitted, 4 f21r25 CINDY BRINES Attorney for Appellant R.V. 26 CERTIFICATE OF COMPLIANCE I certify pursuant to California Rules of Court, rule 8.520(c)(1) that this reply brief on the merits contains 6078 words according to my word processing program (Wordperfect X4). DATED: June 27, 2014 Respectfully submitted, Orn CINDY BRINES Attorney for Appellant R.V. 27 PROOF OF SERVICE BY MAIL (Cal. Rules ofCourt, rules 1.21, 8.50.) I, Cindy Brines, declare that: I am employed in the County ofLos 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. I further declare that I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United State Postal Service; and that the correspondenceshall be deposited with the United States Postal Service this same day in the ordinary course of business. I caused to be served the following document: Appellant’s Reply Brief on the Merits, by placing a true copy in a separate envelope addressed to each addressee, respectively, as follows: RV. Clerk ofthe 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 Clerk ofthe Court P.O. Box 14170 California Court ofAppeal Orange, CA 92863-1569 Fourth Appellate District, Division Three District Attorney 601 W. Santa Ana Blvd. Lamoreaux Justice Center Santa Ana, CA 92701 341 The City Drive South Orange, CA 92863-1569 I then sealed the envelope and, with the postage fully prepaid, I placed the envelop in the United States mail, this same day, at Verdugo City, California. PROOFOF SERVICE BY ELECTRONIC SERVICE (Cal. Rules ofCourt, rules 2.251(i)(1)(A)-(D) & 8.71(£)(1)(A)-(D).) Furthermore, I, Cindy Brines, declare I electronically served from my electronic service address of cindybrines@sbcglobal.net the above referenced document on June 27, 2014 by 5:00 p.m.to the following entities: CALIFORNIA SUPREME COURT,via e-submission, APPELLATE DEFENDERSINC., eservice-criminal@adi-sandiego.com, ATTORNEY GENERAL'S OFFICE, ADIService@doj.ca.gov I declare under penalty ofperjury under the laws ofthe State of California that the foregoing is true and correct. t f Executed on June 27, 2014 Cindy Brtro CINDY BRINES