IN RE ALBERT C.

Appellant’s Petition for Review

Cal.December 24, 2015

523 13 1 D rikcw WIT H PERM SUPREME COURT OF THE STATE OF CALIFORNIA SUPREME COURT FILED In the Matter of Albert C., A Person DEC 94 2015 Within the Jurisdiction of the Juvenile Court Frank A. McGuire Clerk THE PEOPLE OF THE STATE OF CALIFORNIA S. Ct.No. -- Deputy Respondent vs. Juv.Ct.No.MJ21492) 2 Crim. B256480 ( (Los Angeles) ALBERT C., Appellant/Petitioner APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY HONORABLE DENISE MCLAUGHLIN-BENNETT, JUDGE PRESIDING PETITION FOR REVIEW Laini Millar Melnick 1187 Coast Village Road Suite 1-587 Santa Barbara, CA 93108 (805) 770-7264 State Bar No. 133004 Attorney for Petitioner Albert C. SUPREME COURT OF THE STATE OF CALIFORNIA In the Matter of Albert C., A Person Within the Jurisdiction of the Juvenile Court THE PEOPLE OF THE STATE OF CALIFORNIA Respondent vs. ALBERT C., Appellant/Petitioner Ww Ct.No. -- Juv.Ct.No.MJ21492) 2 Crim. B256480 ( (Los Angeles) e e e e e e e e e e e e e e APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY HONORABLE DENISE MCLAUGHLIN-BENNETT, JUDGE PRESIDING PETITION FOR REVIEW Laini Millar Melnick 1187 Coast Village Road Suite 1-587 Santa Barbara, CA 93108 (805) 770-7264 State Bar No. 133004 Attorney for Petitioner Albert C. TABLE OF CONTENTS Table of Authorities Petition for REVIOW oo... ects sessessssessesssessssecsscesssesscscssesecsssssssstscsessesrsecarsasatsnsatsecsensss 1 Questions Presented.........ccccceccsssccsssssssssevscesescsecscesescsssssseasassacscsessessssessssvstavseteseseesecee2 1. Does the Los Angeles County Amended Protocol on Juvenile Competence Establish a Presumptive Violation of the Right to Due Process When a MinorIs Detained for More than 120 Days for Competency Training Without Progress Towards the Attainmentof Competency, as Held by the Courtin in re Jesus G (2013) 218 Cal. App. 4th 157, and did the Juvenile Court Violate this Minor’s Right to Due Process of Law by Detaining Him for Competency Training for 294 Days Without Evidence of Progress Toward the Attainment of Competency Does a Juvenile Court Violate a Minor’s Constitutional Right to the EqualProtection of the Law by Detaining Him for 294 Daysfor Competency Training Without the Procedural Protections That Would Be Required for a Civil Commitment? Did the Juvenile Court Acted in Excessofits Jurisdiction under Welfare and Institutions Code Section 709 and the Los Angeles County AmendedProtocol on Juvenile Competence Whenit Held a Competency Hearing after Detaining the Minorin Juvenile Hallfor Two Hundred and Ninety Four Days Without Evidence of Progress Toward Competency? Did the Juvenile Court Violate the Minor’s a Sixth Amendment Right to Confront the Witnesses Against Him in Competency Hearings Whenthe Court Considered the Unsworn Hearsay Statements of an Attorney Who Was Nota Party to the Proceedings? 4. Does a Juvenile Court Err in Failing Expressly to Consider a Minor’s Immaturity as a Basis for a Finding of Incompetence? Introduction and Summaryof Reasons for REVieW ......ccsescessssessssesssssesesssssetsteseeass3 Procedural Summary seseeusssssssstsessassinesusestestetieetentinseiastinetiatiasssssssusssee8 Reasons for ReVieW .....cccesscsssessssesssesesenesseeseseseesesussassesesscsessssscsescsesscsssesansvencasees 16 I Review Should Be Granted to Determine Whether the Los Angeles I. III. County AmendedProtocol on Juvenile Competence Establishes a Presumptive Violation of the Right to Due Process When a MinorIs Detained for More than 120 Days for Competency Training Without Progress Towards the Attainment of Competency and Whether The Juvenile Court Violated this Minor’s Right to Due Process of Law by Detaining Him for Competency Training for 294 Days Without Evidence of Progress Toward the Attainment of Competency stesnaecsscnsnensosesessassnstacasecsaeacasasseosessusesesssesscsecsesosscsussecseseessseserececensesacesesssasansess 16 Review Should Be Granted to Determine Whether a Juvenile Court Violates a Minor’s Constitutional Right to the Equal Protection of the Law by Detaining Him for 294 Days for Competency Training Without the Procedural Protections That Would Be Required for a Civil Commitment seseeesesesesecsscsesaesesesesenenesenssassassssssesesuesescscsesesevassuesesusuducenseasaeseceeeseseseaeseaseasas26 Review Is Necessary to Determine Whether the Juvenile Court Acted in Excessof its Jurisdiction under Welfare and Institutions Code Section 709 and the Los Angeles County AmendedProtocol on Juvenile Competence Whenit Held a Competency Hearing after Detaining the Minor in Juvenile Hall for Two Hundred and Ninety Four Days Without Evidence of Progress Toward Competency ........s.scsssscssssesesesesesesessesseeeeseseeesseenesees30 ii IV. Review Should Be Granted to Determine Whether the Juvenile Court Violated the Minor’s Sixth AmendmentRight to Confront the Witnesses Against Him When, in Determining That the Minor Should Be Reevaluated for Competency Because He Might Be Malingering, it Considered the Hearsay Statements of an Attorney Who Was Nota Party to the Proceedings seseeeaeanenssessessesesesesseaesaseeseseeseeasscscscsussssudcassessusussieesesisesassesessassssaeatsesseseeses350 Vv Review Is Necessary to Determine Whether a Juvenile Court Errs in Failing Expressly to Consider a Minor’s Immaturity as a Basis for a Finding of Incompetence .0......cccecessessesseeeeseeseeseeeerseseeseeseaneaseeneasees43 CONCIUSION ......sesesssessesesesesesesesesessesacesesesenessecseneesessesesusseseseacsuesesesceseeesatsesseseaseas51. Certificate of Word Count Exhibit A, Petition for Rehearing Exhibit B, Published Opinionin In re Albert C. B256480 Proof of Service iil TABLE OF AUTHORITIES California Cases Abelleira v. District Court ofAppeal (1941) 17 Cal.2d 280 w...eccceccessssccesssssercseeee 31, 35 Bryan E. v. Superior Court (2014) 231 Cal. App.4th 385occ46, 48, 50 In re Christopher F (2011) 194 Cal. App. 4th 462 oo.cececesessssessessesseessestessessstssseess45 In re Davis (1973) 8 Cal.3d 798 wo.cccccccsccsscssessesesssssssscsecscsssscsssssenssseanense 4,15, 18, 36 In re Damon H (1985) 165 Cal. App. 3d 471 oo. ceeesescessssesessssssesesessesessssevscscacsesseees43 In re Jesus G (2014) 218 Cal.App.4th 157 0.ceeeseeeseseeesseseeeeenes 2,3, 4, 16, 19, 32 In re John Z. (2014) 223 Cal. App. 4th 1046 oo... ecesessesssseecessssesssssesessesessseessees 18 In re L. L. (1974) 39 Cal. App. 3d 205 woeeeeseeseseeseceeeeeeseseetseeesesseesseessseneesseesases29 In re Patrick H. (1997) 54 Cal. App. 4th 1346 occceeccssesssesesesteceessessessesseesesssesees 6, 28 In re Steven S. (1981) 126 Cal. App. 3d 23 oecessseseseeeeseseseeeseeesssesessseseeeeasseees30 James H. v. Superior Court (1978) 77 Cal.App.3d 169 oteesceesestesseeseseseeeees 18, 43 People v. Superior Court (Marks) (1991) 1 Cal.4th 56 wo... ccccecssssseesreeees 35, 36 People v. Welch (1993) 5 Cal.4th 228 oo... ceesssesssecsscesseesesssssseseeeseseeseseessseseeeetasseessens55 Texas Co. v. Bank ofAmerica (1935) 5 Cal. 20 35 v.eeecccssssesecsseeeteesessssseesseessseeeesees35 Timothy J. v. Superior Court (2007)150 Cal. App.4th 847........... 22, 43, 44, 48, 50, 52 California Statutes Penal Code section 243 subdivision () ......c.ccccccssescssescsssesscssescsscsessssssscavseesssceceseeaeees9 Penal Code section 245 subdivision (a)(4) w..cccccccsscsessssesesscscsscsessssssscscsssssssseceeeeseas2 lv Penal Code section 422 (a) .....csessssssssssssescsssesessesssesscsssessssesrensssecacsvesesssasaceueacesssaes9 Pernal Code Section 1369 0... ecccssssssssssesssescscscesessssessssssssusssvavsvssasassnecasatessnsesesscacsees45 Peral Code Section 1372.0... cccssssssssssssssesssescsssessesssssssssssvssscssseevavsesesecausesssesseseacese44 Penal Code section 1374 w.eccccssessssssesesscscssesesssssscscscssscscsvasscsescatsreatsrseetatscavacavanses44 Penal Code section 4011.6 ..ecccesesessssessssssesssseesssesescscsssssssscsvacscstsusavseseatsvscacatacees28 Penal Code section 29610 ....cesesesessssssssessesesssscssscsescsessssesssssssacssvsusasetetecaesesavatsesesaes 9 Welfare and Institutions Code section 241.1 ..cccceccsccccesssssssescsssssssescsessstssscsees 37 Welfare and Institutions Code section 300 wi... cecssssssscessesceccesessscscssesceeens 1, 37, 38 Welfare and Institutions Code section 362 ....cccccsescsesesssssescssssssessssrsasssscececesteasessees34 Welfare and Institutions Code section 602 .....cccessssssscsscecceesceseccsesscseeecsceees33, 34 Welfare and Institutions Code Section 70 7....cscssesssssesesessssescscsssssssstsrseseeeseenees 27 Welfare and Institutions Code section 709 ....cccssccessecccessceesseesseseees 5, 6, 17, 31, 33 Welfare and Institutions Code Section 727....cccccsssessssssesessesessssessssssescssassceeeeee38 Welfare and Institutions Code section 5150 ....c.ccessescesesessccesssssssscscssearseevaees28 Welfare and Institutions Code section 5250 ....cccccssssssesecssssscssssssssssssessstsecsseceesece31 Welfare and Institutions Code section 6550 ......cccccccesesscsesecsecssessssssescsscscssvecesenees28 Welfare and Institutions Code section 6551 wou. .ccccesccssesssessceetscessscesssecucessesece28, 29 Other California Authority Amended Competencyto Stand Trial Protocol, Los Angeles County Juvenile Court January 12, 2012oeeeseeeceeeeeeseeeeeeeeeeeees 2, 3, 16, 30, 31 Federal Cases Dusky v. United States (1960) 362 U.S. 402 [ 80S. CT. 788; 4 L. Ed. 2d 824] oo.ccccccseeeeeeeee45, 46 In re Gault (1967) 387 U.S. 1, 30 [18 L. Ed. 2d 527, 87 S. CT. 1428] w.occcccccccsescsccsssssscecseseseeees 18 Jackson v. Indiana (1972) 406 U.S. 715 [92 S. CT. 1845; 32 L. Ed. 2d 435]....... 4, .15, 17, 18, 19, 23, 25, 27, 35 vi SUPREME COURTOFTHESTATE OF CALIFORNIA In re Albert C., a Person Coming Underthe Juvenile Court Law THE PEOPLE OF THE STATE OF CALIFORNIA ) ) Respondent ) S.Ct .No.--- ) 2 Crim. B256480 Vs. ) Juv.Ct.No. MJ21492 ) ) (Los Angeles) ) ALBERT C. . ) ) Petitioner ) ) PETITION FOR REVIEW TO THE HONORABLE TANI CANTIL-SAKADYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATEJUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Petitioner Albert C., respectfully petitions this court for review following the decision of the Court of Appeal, Second Appellate District, Division Five, filed on November 10, 2015, affirming an orderof the juvenile court finding him a ward of the court pursuant to Welfare andInstitutions Code section 602. The court denied the minor’s petition for rehearing on December7, 2015. A copyof the Petition for Rehearingis attached as Exhibit A and a copyof the Court of Appeal’s published opinion is attached as Exhibit B. I. HI. QUESTIONS PRESENTED Does the Los Angeles County Amended Protocol on Juvenile Competence Establish a Presumptive Violation of the Right to Due Process When a MinorIs Detained for More than 120 Days for Competency Training Without Progress Towards the Attainment of Competency, as Held by the Court in in re Jesus G (2013) 218 Cal. App. 4th 157, and did the Juvenile Court Violate this Minor’s Right to Due Process of Law by Detaining Him for Competency Training for 294 Days Without Evidenceof Progress Toward the Attainment of Competency? Does a Juvenile Court Violate a Minor’s Constitutional Right to the Equal Protection of the Law by Detaining Him for 294 Days for Competency Training Without the Procedural Protections That Would Be Required for a Civil Commitment? Did the Juvenile Court Acted in Excessof its Jurisdiction under Welfare andInstitutions Code Section 709 and the Los Angeles County Amended Protocol on Juvenile Competence When it Held a Competency Hearing after Detaining the Minorin Juvenile Hall for Two Hundred and Ninety Four Days Without Evidence of Progress Toward Competency? Did the Juvenile Court Violate the Minor’s a Sixth AmendmentRight to Confront the Witnesses Against Him in Competency Hearings Whenthe Court Considered the Unsworn Hearsay Statements of an Attorney Who WasNota Party to the Proceedings? Doesa Juvenile Court Err in Failing Expressly to Consider a Minor’s Immaturity as a Basis for a Finding of Incompetence? S e g w i g re Go vt e e S S R N , INTRODUCTION AND SUMMARYOF REASONSFOR REVIEW This petition arises from the minor’s detention in juvenile hall for 294 days more than oneyear for competencytraining after a doubt was declaredasto his competence and delinquency proceedings were suspended. In detaining Albert for so long only by reason of his incompetence, the juvenile court violated the Amended Competency to Stand Trial Protocol of the Los Angeles Juvenile Court’, relevantstatutory provisionsof the Welfare andInstitutions Code and the Evidence Code, and the federalconstitutional protections of due processof law, equal protection of the law, and the right to confront witnesses. This petition merits review under Rule 8.500 subdivision (b)(1) of the California Rules of Court to resolve an important question of law on which different divisions of the Court of Appeal disagree: whether the Los Angeles County AmendedProtocol on Juvenile Competence establishes a presumptive violation of the right to due process when,as here, a minoris detained in juvenile hall for more than 120 days for competency training, when there is no evidence of progress towardsthe attainment of competency. In In re Jesus G, Division Seven of the Second District Court of Appeal held that the Protocol complies with constitutional requirements andasa result, a violation of the Protocol is presumptively a violation of constitutionalright, * The presiding judge of the Los Angeles County Juvenile Court issued the Amended Competency to Stand Trial Protocol ( “the Protocol” ) on January 12, 2012 to set forth detailed procedures to govern competency proceedingsin the juvenile courts. whichis rebuttable on the facts of a given case. ( In re Jesus G (2013) 218 Cal. App.4th 157, 174.) In this case, Division Five disagrees with Jesus G’s conclusion that a 120 day limit on detention while receiving services establishesa presumptive due process violation under Jackson v. Indiana (1972) 406 U.S. 715 [92 S. CT. 1845; 32 L. Ed. 2d 435 and In re Davis (1973) 8 Cal. 3d 798. (In re Albert C., B256480, 11/10/15, “Opinion,” p. 29.) Where Division Seven found that the Protocol implements Welfare and Institutions Code section 709, governing competency proceedingsin the juvenile court, Division Five found that the Protocolis inconsistent with the statute. Division Seven found that the Protocol’s 120 day limit on detention to attain competency implements timelines designed to preventindefinite commitment, to require the provision of services to attain competence, andto provide for the release of minorsnotlikely to recover competence, and that as suchitis in line with the constitutional requirements of due processset forth in Jackson by addressing both the problem of an indefinite commitment, and the necessity of making a prognosisas to the likelihood of attaining competence. (In re Jesus G., supra, 218 Cal. App.4th at 171. ) Division Five, by contrast, focuses on thefact that Jackson declined to define a reasonable period of time and recognized the need forflexibility. (Opinion,p. 29.) Review should be grantedin this case not only becausethereis a conflict in the published opinions of the Court of Appeal, but also because of the nature of the liberty interest at stake for incompetent minors. The court in Jesus G did not decide the question whether the minor’s rights were actually as wellas presumptively violated because the minor hadbeen released.(In re Jesus G., supra, 218 Cal. App.4th at 174.) Albert, the minorin this case was fourteen whenfirst detained and he spent nearly a yearin juvenile hall solely because of his incompetence. His case demonstrates the needfor limits on the discretion of the juvenile court in its dealings with the detention of incompetent minors. Review should be grantedin this case, therefore to determine whetherthe detention for 294 days of an incompetent boycan pass constitutional muster. Albert’s lengthy detention gaverise to other constitutional violations deserving of review under Rule 8.500 subdivision (b)(1) of the California Rules of Court as important questions of law, as outlined below.. First, in addition to the due processviolations arising from the length of detention without any progress towards competency, there is the question whetherthe juvenile court acted in excessofits jurisdiction under Welfare and Institutions Code Section 709 and the Los Angeles County Amended Protocol on Juvenile Competence whenit held a competency hearing after detaining the minor for more than 120 days. Both the Protocol and Welfare and Institutions Codesection 709 limit the actions a juvenile court may take when delinquency proceedings are suspendedfor reasons of incompetency to orders appropriate for services to assist the minorin attaining competency and ruling on motions that do not require the participation of the minorin their preparation. (Welf & Inst § 709 subd (c). )* The Court of Appeal found noerror in the juvenile court’s * These motionsinclude, but are not limited to, motions to dismiss, motions by the defense regarding a changein the placementof the minor, 6 actions, because “ it is unreasonableto interpret section 709 as precluding the appointmentof experts to determine current competency.” (Opinion,p. 38.) The question presented, however, is not whether the juvenile court may appoint experts to determine competency, but whetherit may take such actions contrary to the express limitations on jurisdiction defined in Welfare and Institutions Codesection 790 and the Protocol and while detaining the minor beyond the deadlines established by the Protocol. This question is deserving of review as a matterof first impression, an important question of law that affects the substantial rights not only of the minorbutof all minors whoare detained while delinquency proceedings are suspendedfor reasons of incompetency. Secondthere is the question whetherthejuvenile curt violated the minor’s right to equal protection of the law whenit held him in detention for competencytraining for more than 120 days without the procedural protections that would be required for a civil commitmentof this duration. The court of appeal held that the minor wasnotsimilarly situated to persons whofall under the civil commitmentstatute, the Lanterman-Petris-Short (LPS) Act because he did not suffer from a mental health disorder. (Opinion, p.33.) However, other courts haveheld that a finding of incompetence in a juvenile proceeding should notresult in a confinementorderor its equivalent.(In re Patrick H. (1997) 54 Cal. App.4th 1346, 1356. ) Juveniles found incompetent on the groundsof immaturity should not be vulnerable to indefinite commitment without the detention hearings, and demurrers. (Welf & Inst Code § 709 subd(c).) procedural protections available to mentally ill minors, who cannot be committed without compliance with the applicable provisions of the LPS Act or other proceduresaffording due process. ( In re Mary T. (1985) 176 Cal. App. 3d 38, 43, fn. 7.) Review should be granted to decide whethera juvenile court may subject a minor found incompetenton thebasis of immaturity may be subjected to a more lenient standard of commitment than would haveapplied to a mentally ill minor under the LPS Act. Another question deserving of review as a matterof first impression and an important question of law is whetherthe juvenile court violated the minor’s Sixth Amendmentright to confront the witnesses against him in competency hearings whenit considered the unsworn hearsay statementsof an attorney who wasnota party to the proceedings. The court of appeal found the minor’s constitutional claim forfeited for failure to raise it in the juvenile court and also rejectedit on its merits because “ consideration... by the delinquency court of a statementby counselfor the Department [of Child and Family Services] does not implicate the right to confrontation. “ (Opinion, p. 37.) Underthe holding of People v. Partida, the claim was not forfeited, and the important question of law is whether, whenthe statute makes express provision for the joinderof parties only in special circumstancesand for particular reasons, the juvenile court may consider statements going to the merits of the proceedings by an unsworn attorney representing a party notjoined to the proceedings as required by the statute. Finally, this court should grant review to clarify whethera juvenile court errsif it fails to expressly consider a minor’s immaturity as a basis for a finding of incompetence. A minor may be incompetenton the basis of developmental immaturity alone and does not need to showthathis or herinability to understandorassist arises as a result of mental disorder or developmental disability. (See Bryan E. v. Superior Court (2014) 231 Cal. App.4th 385, 391.)The court of appeal erroneously concluded the juvenile court did consider the minor’s immaturity in nevertheless finding him competent. The minor pointed out the juvenile court's error in his Petition for Rehearing, directing the court to the pages of the Reporter’s Transcript that contain the juvenile court’s reasons for a finding of competence. In sum, the minor’s appeal presents not only a question of law on which the court of appeal is divided but also other important questions of law deserving of review,all of which should be resolved to guide the juvenile courts in the delicate task of dealing with the competency issues of minors in delinquency proceedings PROCEDURAL SUMMARY The minor Albert was a dependantof the court under Welfare and Institutions Codesection 300 because of the abuse and neglect he suffered atthe handsof his mother and grandmother. A petition filed on June 13, 2012 charged the minor, then aged fourteen with one count of threatening a public officer in violation of Penal Code section 71. (Clerk’s Transcript, “CT” 1.)? The minor denied the allegations. (CT 6.) Becausethere werefive substantiated referrals for neglect or abuse of the minor under Welfare and Institutions Codesection 300 and the minor was a dependent of the juvenile court, a joint assessment was made by the Probation Department and the Departmentof Children and Family Services, pursuant to Welfare and Institutions Code section 241.1. (CT 17, 34. ) A secondpetition wasfiled on February 14, 2013,alleging one countof assault likely to produce great bodily injury in violation of Penal Code section 245 (a)(4); one countof battery with serious bodily injury in violation of Penal Codesection 243 (d); one count of possession ofa firearm by a minor in violation of Penal Code section 29610; and one count of criminal threats in violation of Penal Codesection 422 (a). (CT 51-52) On February 15, 2013, the court declared a doubtas to the minor’s competency and suspendedthe delinquency proceedings. An expert , Dr Kambam, was appointed to perform a competency evaluation, and the minor was detainedin juvenile hall. (CT 70. ) On March 19, 2013, a competency hearing was held, the minor was determined notto be presently competent and delinquency proceedings remained suspended. (CT 73.) Dr Kambam’sreport stated that with adequate services and appropriate medicationtrials, the minor couldlikely attain competency within 12 months (Reporter’s Transcript “RT”vol.I, 22, 87.)* The * The Clerk’s Transcript comprises a single volume. * The Reporter’s Transcript comprises two volumes, each labeled “Volume 1 of 1". In this brief, volumeI refers to the Augmented Reporter’s Transcript 9 court ordered the Probation Department and the Department of Mental Health (DMH)to evaluate the minor and to submita joint written report by April 10, 2014, the next scheduled court date, with their recommendationsfor the minor’s treatment, and an assessment whetherhe waslikely to regain competence in the foreseeable future. (CT 73. )The minor remained detained. (CT 73.) Instead, Probationfiled a report on April 10 2013 stating that there was noset protocolor procedure for completing the report the court had ordered, and that Probation and DMHweretherefore unable to collaborate to decide what kind of treatment or services would be appropriate for the minor. Probation recommended the minor's referral to the Regional Center for evaluation. (CT 74.) The court continued the matter to April 17, 2013, and ordered the Probation Department and the Department of Mental Health again to evaluate thie minor and to submit a joint report to the court with their recommendationsfor treatment. The Probation Department was directed to prepare an Incompetentto Stand Trial (“IST”) planning report andto refer the minorto the Regional Centerif appropriate. Meanwhile, the minor remained detainedin juvenile hall. (CT 77.) On April 17, 2013, the Probation Department reported that the minor would be referred to Creative Support for approximately twentytotal hoursof whichincludes the hearings on August8, 2012, February 15, 2013, March7, 2013, March19, 2013, April 10, 2013, May 23, 2013, June 20, 2013, July 17, 2013, August 15, 2013, August 26, 2013 September 18, 2013, October 6, 2013, November12, 2013, January 13, 2014, February 4, 2014, and February 20, 2014. VolumeII contains the hearings held on February 20, 2014, March 4, 2014, and March 18. 2014. This designation of the volumesfollows the chronologyof the proceedingsin the juvenile court. 10 competency training to be provided in weekly sessions while the minor was detainedin juvenile hall. Creative Support would administer an assessmenttest at the first session, and would provide a written report to the court upon completion of the training. (CT 78.) However, nine dayslater, Creative Support informed the Probation Departmentthat they could not provide competency training at Sylmar Juvenile Hall where the minor waslocated, so the court ordered the minor’s transfer to Eastlake Juvenile Hall. (CT 92, 93.) Meanwhile delinquency proceedings remained suspended and the competency hearing was continued yet again to May 23, 2013. (CT 81.) On May23, 2013, counsel for the minor renewedher continuing objection to the minor’s detention in juvenile hall. She informed the court that although the minor had been in custody for four months, he had received only two competency training sessions. She pointed out that underthe Protocol, the case should be dismissedif the minor did not attain competency withinsixty days. (RT vol. I, 30- 31.) Nevertheless, and over the objection of counsel, the court again continued competency proceedings to June 20, 2013. The court ordered probation to includein its next report an assessment whether the minor could regain competency in the foreseeable future. (RT vol. I, 35.) The court denied the minor’s request to be released from detention and placed in the Community Detention Program, but ordered the Departmentof Child and Family Services to have the minor screened for placementin a Level 14facility and to determine whether there was another meansof confinementrather than detentionin juvenile hall. (CT 97, RT vol. I, 44.) 11 On June 17, 2013, the probation officer reported that Creative Support planned to give the minor an assessmenttest on June 19, 2013 and to provide a copyto the officer on the same day. (CT 99.) Probation therefore requested yet another additional one month continuancefor a progress report on the minor’s attainment of competency. (CT 101.) On June20, 2013, counsel for the minor arguedto the court that the minor could not be detained for competency training if he was not making progress toward attainment, and asked for an attainmentof competencyhearing to be set as required by the Protocol, and for the appointmentof the same expert who previously examined the minorto evaluate him again and determine whether Probation had donewasit was supposed to do to help him achieve competency.(RT vol. I, 41.) The court denied counsel’s requests and again continued the competency hearing, to July 17, 2013. The court ordered the probation departmentto prepare a supplemental report addressing the support services provided to the minor, the outcomeof the assessmenttest, and an opinion whether the minor hadattained or could attain competency. The minor remainedin detention at juvenile hall over counsel’s objection. (CT 102, RT vol. I, 51.) OnJuly 11, 2013, Creative Support sent a report to probation indicating that the minorwasstill incompetent to standtrial. (CT 106 -108.) On July 17, 2013, the juvenile court again continued the proceedings to determine whether the minor had made progress in competency training and again denied the minor’s motion to be released from detention. (CT 109.) Counsel for the minor asked the court to order the reappointmentof the expert to evaluate whether the services the minor 12 wasreceiving had helped him in making progress towards competency. The court denied the motion as premature, stating that it was not yet in receipt of any evidencethatthere had been finding about the minor’s ability to regain competency, but stated that counsel could readdress her request for dismissalof the petitions on the next calendared date of August 15, 2013. The court also denied counsel’s motion to dismiss the petitions and terminate jurisdiction (RT vol. I, 51.) On August 1, 2013, Creative Support reported to the Probation Department that the minor had begun competencytraining on May9, 2013 and had received training once a weekfor one and half hours. He had beentested three times, on May9, 2013, June 19, 2013, and July 31, 2013, and hadfailed the test each time. The report included the minor’s scores for the tests administered in June and July, and concluded that he was currently incompetentto stand trial. (CT 113-114.) On August15, 2013, counsel for the minor asked the court to rule that the minor wasunlikely to attain competency in the near future, and moved to dismiss all charges becauseof the juvenile court's failure to adhere to the Protocol governing juvenile competency proceedings andthe constitutional standard of due process. (RT vol. I, 59 - 60.) The court denied the motions and continued the competency hearings. The juvenile court ordered the Probation Departmentto coordinate with DCFSto find a “Level 14” placementfor the minor. Meanwhile, the minor remainedin custodyin juvenile hall. (CT 116.) On September10, 2013, the minorfiled a petition for a writ of habeas corpus on the groundsofhisillegal detention. (RT vol.I, 81) 13 On August 26, 2013, the juvenile court stated that if a Level 14 placement becameavailable, it would place the matter on calendar. Meanwhile, the minor wasto continueto receive competency training and wasto remain detained. (CT 117.) On September 12, 2013, Creative Support submitted another report on the minor’s competency training, stating that the minor wasstill incompetent to standtrial. (CT 121) At the next hearing, on September18, 2013, the court again continued the matter, pending the minor’s referral to the Regional Center. Delinquency proceedings remained suspended and the minor remained in detention at juvenile hall over the objection of counsel. (CT 124) On October10, 2013, Creative Support submitted anotherreport on the minor’s competencytraining, stating that the minor wasstill incompetent to stand trial. (CT 128.) On October16, 2013, the court expressed concern that the October 10 report from Creative Services’ was the same as the previous one and that there was no way to know whetherthe test was capable of preventing malingering by the minor. (RT vol. I, 93.) The court ordered the appointmentof a second expert to evaluate the minor for competency. Counsel for the minor renewed her motionsto release the minor and dismissthe petitions , the court denied them and continued the matter to November12, 2013. (RT vol. I, 96, CT 131.) On November12, 2013, counsel for the minor renewed her motionsfor release from detention and dismissal of the petitions and the court denied them. (RT vol. I, 122-123. ) The matter was continued to January 13, 2014. ( CT 137) > See CT 128-130 14 OnJanuary13, 2014, the court received Dr Knapke’s reportfinding the minor incompetentto standtrial. (CT 139.) At the request of the District Attorney, the court scheduled a further hearing at which both the expert who conducted the evaluation and staff person from Creative Support were to beavailable to testify. (CT 139.) The minor remained in custodyin juvenile hall. (CT 138.) Counsel for the minorfiled a habeaspetition to stay further proceedings in the juvenile court. The petition was denied. (CT 140) The minor’s motionto refer his case to Dept 203, the Juvenile Mental Health Court was also denied. (CT 142, 150.) On February 4, 2014, the court held an attainment of competency hearing at which Nico Gipson of Creative Services and Dr Knapkebothtestified. Nico Gipsontestified the minor was making a good effort but wasnotable to pass the tests she administered. (RT vol. I, 174, 180.) Dr Knapke opinedthat there was no medical reason the minor could not attain competency, but conceded that withouta further evaluation, he could not say to a medical certainty that the minor was competent. Despite this testimony, the court found that the minor competent andreinstated the juvenile delinquency proceedings. The minor’s motion to refer the matter to the Juvenile Mental Health Court was again denied. The minor remained in custody atjuvenile hall. (CT 149-150 .) On February20, 2014, the minor admitted both petitions. The court found both petitionstrue asto count one and dismissed the remaining counts pursuantto settlement. (CT 176.) The minor continued to be detainedin juvenile hall pending disposition. (CT 176.) 15 The probation officer’s Supplemental Disposition Report recommended referral to Juvenile Mental Health Court. (CT 182, 184.) The minor’s dependency counsel recommendedthat he remain a dependentof the juvenile court and not be declared a ward under Welfare and Institutions Code section 602 or that he be placed under dual supervision. (CT 185, 187.) Despite these recommendations, at disposition, the court declared the minor a ward of court under Welfare and Institutions Codesection 602, denied the minor’s requestfor referral to the Juvenile Mental Health Court and placed him in the custody of the probation officer for suitable placement with conditions of probation. (CT 188-189.) REASONS FOR REVIEW I REVIEW SHOULDBE GRANTED TO DETERMINE WHETHER THE LOS ANGELES COUNTY AMENDED PROTOCOLON JUVENILE COMPETENCE ESTABLISHES A PRESUMPTIVE VIOLATION OF THE RIGHT TO DUE PROCESS WHENA MINORIS DETAINED FOR MORETHAN120 DAYS FOR COMPETENCYTRAINING WITHOUT PROGRESS TOWARDSTHE ATTAINMENT OF COMPETENCY AND WHETHER THE JUVENILE COURT VIOLATED THIS MINOR’S RIGHT TO DUE PROCESS OF LAW BY DETAINING HIM FOR COMPETENCY TRAINING FOR294 DAYS WITHOUTEVIDENCE OF PROGRESS TOWARD THE ATTAINMENTOF COMPETENCY. OnJanuary 12, 2012, the presiding judge of the Los Angeles County Juvenile Court issued the Amended Competencyto Stand Trial Protocol which sets forth detailed procedures to govern competency proceedingsin the juvenile courts. 16 Division Seven of the Second District Court of Appeal held, that the Protocol implements Welfare and Institutions Codesection 709 and “adds additional rules for competency proceedings.” (In re Jesus G. (2014) 218 Cal.App.4th 157, 168, 171. The court observed that section 709 does not contain a time limitation on the duration of competency services or how long a minor may be detainedin juvenile hall, but addresses only the length of time proceedings may be suspended dueto a finding of incompetency, that is, “no longer thanis reasonably necessary to determine whetherthere is a substantial probability that the minorwill attain competencyin the foreseeable future, or the court no longer retains jurisdiction.” (Id. at 168, citing Welf. & Inst. Code, § 709, subd. (c).) The court held, therefore, that the Protocol's 120-day limitation on the detention period does not contradict or overrule section 709, but adds additionalrules for competency proceedings. A person charged with a criminal offense and committed on account of incompetencyto proceedto trial cannot constitutionally be held more than the reasonable period of time necessary to determine whetherthereis a substantial probability that he will attain competency in the foreseeable future. (Jackson v. Indiana, supra, 406 U.S. at 720, 738; In re Davis, supra, 8 Cal.3d at 805 [adopting Jackson's "rule of reasonableness"in order to comply with the constitutional principles].) If attainment of competencyin the foreseeable futureis notlikely, the court musteither institute the civil commitment proceeding that would be required indefinitely to commit any othercitizen, or release the accused. (Jackson v. Indiana, supra, 406 U.S. at 738; In re Davis, supra, 8 Cal. 3d at 801.) Furthermore, 17 even if it is determined that the accused probably soon will be able to standtrial, any continued commitment mustbejustified by progress toward that goal. (Jacksonv. Indiana, supra, 406 U.S. at 738; In re Davis, supra, 8 Cal. 3d at 807.) The essentials of due process andfair treatment apply to juvenile proceedingsas well as to adult criminal proceedings. (In re Gault (1967) 387 U.S.1, 30 [18 L. Ed. 2d 527, 87 S. CT. 1428]. ) Those rights include a competencyhearing. (In re John Z., supra, 223 Cal. App. 4th at 1053.) James H. v. Superior Court (1978) 77 Cal.App.3d 169, 174-175. )Thus, when a minoris found incompetent to stand trial, delinquency proceedings must be suspendedfor a period oftime that is no longer than that reasonably necessary to determine whetherthere is a substantial probability that the minor will attain competencyin the foreseeable future, or the court no longerretains jurisdiction. (In re Jesus G., supra, 218 Cal. App. 4th at 174; Welf & Inst. Code § 709 subd(c).) The court in Jesus G held that the Protocol comports with the constitutional requirements of due process asset forth in Jackson v. Indiana and In re Davis, and a violation of the Protocol is presumptively a violation of constitutional rights. (In re Jesus G, supra, 218 Cal. App.4th at 170-171, 174. ) Division Five disagrees with Jesus G’s conclusion that a 120 daylimit on detention while receiving services establishes a presumptive due process violation underJackson and Davis. (Opinion, p. 29.) Division Seven found that the Protocol’s 120 day limit on detention to attain competency implements timelines designed to prevent indefinite commitment, to require the provision of services to attain competence, andto providefor the release of minors notlikely 18 to recover competence, and that as such it comports with the constitutional requirements of due processset forth in Jackson and Davis by addressing both the problem ofan indefinite commitment, and the necessity of making a prognosis as to the likelihood of attaining competence. (In re Jesus G., supra, 218 Cal. App.4th at 171.) Division Five rejects this analysis, because neither Jackson nor Davis define a reasonableperiod of time and recognize the need forflexibility. (Opinion,p. 29.) In holding that the detention of an incompetent minor for more than 120 days establishes a presumptive constitutional violation does not howeverconflict with the needforflexibility in the circumstancesofdifferent cases. It merely shifts the burdento the state to show why continued detention doesnotviolate a minor’s due process. This case demonstrates the wisdom of Division Seven’s approachin establishing a rebuttable presumptionof a constitutional violation 1, concerningasit does the lengthy detention in juvenile hall of a fourteen year old boy whowasalso a dependantof the juvenile court because of numerous sustained allegations of maternal and family neglect. This court should grant review to determine whetherthe Protocol establishes a rebuttable presumption as Division Seven held, or whetherflexibility requires a complete absenceof guidelines for the juvenile courts discretion as Division Five concludes. This court should also grant review to determine even without a rebuttable presumption, the detention of the minor for 294 days violated his due process rights. UnderJackson v. Indiana, supra, the minor’s continued detention could only be justified if he were making progress toward competency and there was no evidence of any such progress, nor does the Court of Appeal hold that there 19 was. Rather, the court holds that detention “of more than 120 days” was not constitutionally unreasonable when the minor wasreceiving servicesto attain competency; the minor had no mental disease or defect and had an averageIQ; he wasfacingallegations involving weaponsand violence; he was a dependent child “ which makeslessrestrictive placementdifficult if not impossible,”the court carefully monitored the minor’s progress; and “ the possibility of malingering arose early in the proceedings based on statements by the minor’s motherto the probation officer. (Opinion, p. 30) The minorwasnotjust detained for “more than 120 days. ” He was detained for more than twicethat limit. The services he was receiving were comprised of one short session of competency training per week, for which he wasrequired to spend 294 daysin juvenile hall. Also, the services he was receiving did not meet the minimum requirements recommendedby the doctor whofound him incompetent, which included mental health services and medicationtrials as well as competencytraining. (RT vol. I, 22, 87.)° The nature of ° The minor pointed outthis errorin his Petition for Rehearing : “Oneof the factors [the Court of Appeal] relied upon in finding reasonable the length of time the minor wasdetained for competency training was Dr Kambam’s opinion that “the minor would be expected to regain competency within 12 months. “ (Opinion, p. 29.) What Dr Kambam’s report stated was: “ While the minoris significantly impaired in his ability to retain information, reason, and make decisions, he has not had any medication trials with medications (such as ADHDmedications) that improve executive functioning and reduceinattentive and hyperactivity-impulsivity symptoms. With mental health services to intervenein this area, and with repetitive education of competency-related 20 an unprovedcharge hasno relevanceto the question how long a minor may be detained for competencytraining and the court cites no precedent in supportof its assertion, that it does. Nor doesthe fact that the minor had a normalIQ justify a lengthy detention, sinceit is well-settled that a minor can be incompetent on the basis of immaturity. ( Timothy J. v. Superior Court (2007)150 Cal. App.4th 847, 860..) Contrary to the court of Appeal’s assertion, the juvenile court did not “carefully monitor” the minor’s progress; it acceded to every request for a continuance madeby probationorthe district attorney and denied every motion madeby counselfor the minor. Indeed, the record demonstrates unequivocally that he juvenile court did not begin to express concern over the minor’slack of progress until October 2013, although the minor had been in custody since Februaryof that year. Finally, the Court of Appeal’s assertion that there were early suspicions of malingering, should, if true, have led to their early investigation, not a detention of 294 days. Also, as the minor pointed outto the court in his Petition for Rehearing, the hearsay statements of the minor’s mother concepts, he wouldlikely significantly improve his understanding of these concepts." (See Opinion, p. 7) [The Court of Appeal] held that it was reasonable for the juvenile court to grant continuances when the minor was continuing to receive competencytraining and it was within the 12-month period forattaining competencyreferenced in Dr. Kambam'soriginal report. (Opinion pp 11-12.) What[the Court of Appeal] does not take into accountis that the minor was not receiving the other services recommended by Dr Kambam.Thereis nothing in the record to show that the minor received any of the medication trials or mental health services that Dr Kambam sawasanintegral part of the process of attainment of competency. (Petition for Rehearing, p. 9.) 21 and aunt should be regarded with caution asto theirreliability in light of the sustained petitions for maternal neglect under Welfare andInstitutions Code section 300. (Petition for Rehearing, p. 9.) Becausethe court of appeal held that under these circumstances, there was no constitutional violation despite the minor’s lack of progress towardsthe attainment of competency,this court should grant review to determine whether the flexibility of Jackson, permits a juvenile court to detain an incompetent minor for a lengthy period of time without evidence of progress towardsattainmentof competency, withoutviolating his constitutional right to due process By August 15, 2013, when the minorhad beenin detention for 120 days since the IST planning hearing in April, the minor had beentested three times and his test results showedthat he was not competentto standtrial. Specifically, not only had the minor not attained competency but he was not making progress toward attainment. Each time he wastested, the minorreceived failing grades. (CT 113-115.) Dr Kambam’s competencyevaluation in March 2013, stated that the minor might achieve competency within twelve months. On September18, 2013, when the court denied the minor’s motion to dismiss and granted probation’s request for yet another continuance for more training in excess of the Protocol’s one hundred and twenty daylimit, it stated that the continuance wasreasonable in light of Dr Kambam’s report. The court was wrong. The September 2013 report showedthat the minor hadstill made no progressat all toward attainment of competency. (CT 121-123. ) Evenif it had been determined that he probably 22 would soon be competent, his continued detention could bejustified only by progress toward that goal, and there was no such progress. (See Jackson v. Indiana, supra, 406 U.S. at 738.) At this point, the minor had already been detained for 155 days for competencytraining. On October 16, 2013 when the minor had been detained for 183 days for competencytraining, the court received another report from Creative Services showing again that the minor had madenoprogressin attaining competency. (CT 128-130.) The court stated that there was no way to know whetherthetest wascapable of preventing malingering by the minor, and ordered the appointmentof a second expert to evaluate the minor for competency. (RT vol.I, 93.) The court denied counsel’s motions to release the minor and dismiss the petitions and continued the matter to November12, 2013. (RT vol. I, 96, CT 131.) On November12, 2013, the minor had been in detention to receive competencytraining for 210 days and there wasnoevidence of progress toward competency. Counsel renewedherobjection to the violation of the Protocol and case law andasked the court to make a finding that the minorwass still not likely to obtain competency in the near future and to dismiss the petition (RT vol. I, 123.) The court continued the matter to January 13, 2014. ( CT 137.) On January 13, 2014, when the minor had beenin juvenile hall for 272 dayssince the IST planning hearing, the court received a report from the appointed expert finding the minor incompetent. Counsel for the minor renewed her motionsfor release of the minor but the District Attorney argued that the minor was malingering and requested an evidentiary hearing. The court granted 23 the request and continued the hearing to February 4, 2013, whenit found the minor competent and reinstated delinquency proceedings. (CT 138-139, 149- 150.)” Despite this lengthy period of detention, the Court of Appeal holdsthat the minorhasnot established a due process violation under Jackson and Davis because “unlike the defendantin Jackson, who suffered from multiple disabilities and was unlikely ever to attain competence, minor's incompetence was founded on emotional which, according to Dr Kambam,could be remedied within twelve months.In this respect, minor’s circumstances are in no way comparableto the defendantin Jackson, considering that Dr Kambam expressed the opinionthat minor had no mentalillness, disease, or developmental disability. Minor had no insurmountable mental issues, he had an average IQ, had passing grades when he attended school on a regular basis and incompetence was based on emotional immaturity. Under these circumstances, we hold that 12 monthsto attain competencyconstitutionally reasonable. “ (Opinion, p. 26.) The Court of Appeal is wrong. Because a minor may be found incompetent on the basis of immaturity not mental disability should not deprive him of the constitutional protections set forth in Jackson and Davis. UnderJackson, continued detention may be justified only when there is evidence of progress toward the ? Underthe Protocol, either the minor's counselor the district attorney may a request a further evaluation or a full evidentiary hearing at the competencyattainment hearing but the hearing is to be held within 60 days or 120 days from the IST planning hearing and no minor may be detained for more than 120 days (Protocol, p. 7). 24 attainment of competency andhere there wasno evidencetojustify prolonged detention beyond 120days.. (See Jackson v. Indiana, supra, 406 U.S. at 738.) The court of Appeal’s analysis set d up two different standards, one for incompetent minorssuffering from mentalillness and anotherfor those who are incompetent for reasons of immaturity. This court should grant review to decide whetherthis two -tiered approach can pass constitutional muster. In sum,the court repeatedly ignored the Protocol’s deadlines and violated the minor’s right to due process of law by ordering him to be detained for competencytraining whenthere was no evidence that he was making progress towardits attainment. The circumstancesof this case reveal the serious and pressing need for authoritative procedures to guide the juvenile courtsin their dealings with incompetent minors. This court should grant review to d resolve the conflict between Division Seven and Division Five overthe status of the Protocol and whetherit establishes a presumptiveviolation of constitutional rights. Review should also be granted to determine whetherthe lengthy detention of a minor for competencytraining can bejustified on factors that do not include evidence of progress towardthe attainment of competency. 25 II REVIEW SHOULD BE GRANTED TO DETERMINE WHETHER A JUVENILE COURT VIOLATES A MINOR’S CONSTITUTIONAL RIGHT TO THE EQUAL PROTECTIONOF THE LAW BY DETAINING HIM FOR 294 DAYS FOR COMPETENCY TRAINING WITHOUT THE PROCEDURAL PROTECTIONS THAT WOULDBE REQUIRED FOR A CIVIL COMMITMENT In Jackson . Indiana, the court held that the state violated the defendant’s Fourteenth Amendmentright to the equal protection of the laws whenit subjected him to a more lenient commitment standard and to a more stringent standardof release than those applicable to persons not charged with offenses. (Jackson v. Indiana, supra, 406 U.S.at 730. ) Similarly, in the minor’s case, the juvenile court violated his right to equal protection of the laws whenit held him in detention for competencytraining for more than one hundred and twenty days without the procedural protections afforded underthe civil commitmentstatutes. The Court of Appeal disagrees on the ground that the minoris not similarly situated to persons whofall under the Lanterman-Petris- Short Act (LPS), (Pen.Code § 5000 et seq. ) because he does not have a mental health disorder. Rather, according to the court, he falls only under Welfare and Institutions Code section 707 subdivision (b) being incompetent because of developmental immaturity. ( Opinion, p. 32-33. ) First, as argued in the briefs and pointed outin the Petition for Rehearing, Dr Kambam recommendedthe provision of mental health services for the minor. Moresignificantly, however, the Court of Appeal’s holding, if upheld, subjects 26 developmentally immature minorsto indefinite and prolonged detention with out any of the protections afforded in civil commitment proceedings, in contravention of the rule thata finding of incompetence in a juvenile proceeding should notresult in a confinementorder orits equivalent. (In re Patrick H. (1997) 54 Cal. App.4th 1346, 1356, citing In re Mary T, 176 Cal. App.3d at 43.) A juvenile court has only to have doubt concerning the mentalhealth of a person to proceed as provided in Welfare and Institutions Code section 6550 or Penal Codesection 4011.6 of the Penal Code. (Welf & Inst. Code § 705.) Together, the sections authorize the juvenile court to refer persons withinits jurisdiction for 72-hourevaluationor treatmentafter which, in appropriate cases, the provisions of the LPS Act may be invoked, pursuant to which the minor may be detained in a mental health facility for a longer period of time. (In re Robert B.( 1995) 39 Cal. App. 4th 1816, 1823. ) Both statutes provide broadly similar procedural protections for minors in delinquency proceedings whenthe juvenile court has a doubtas to their mental health. Here, the initial referral for evaluation for incompetence should be construedas raising such a doubt, and whenthe evaluating doctor recommendedthe provision of mental health services and medicationtrials, the minor falls within the purview of these statutes. If the court believes a minor may be mentally ill, under Welfare and Institutions Code section 5150 it may order him into a facility authorized to hold people for a 72-hour evaluation and treatment. Thefacility must submit a written evaluation to the court. (Welf & Inst Code § 6551.) If the professional person in chargeof the facility finds that as a result of a mental health disorder, the minoris 27 in need of intensive treatment, he may becertified for not more than 14 days of involuntary intensive treatment, and then only if he meets the requirementsfor mental health commitmentset forth in Welfare and Institutions Codesection 5250. ° ( Welf & Inst Code § 6551.) Any further involuntary commitment must comply with the statutory requirements of the LPS Act. (In re L. L. (1974) 39 Cal. App. 3d 205, 216.) Where a minor has been found to be mentally disordered and is certified for 14-day intensive treatment, he must be released at the end of 14 days unless he agrees to receive further treatment on a voluritary basis or unless he is confined for postcertification treatment or recommended for conservatorship. (Id at 212. ) In sum, under Welfare and Institutions Code section 705 andits related statutes, the minorin this case could not have been detained for 294 days without first, an initial 72 hour detention for evaluation and treatment; second, a * Welfare and Institutions Code section 5250 providesinteralia that a person whohasbeen detained for 72 hours and hasreceived an evaluation, may be certified for not more than 14 daysof intensive treatment related to the mental health disorder underthe following conditions: the professionalstaff of the agencyorfacility has analyzed the person's condition and has found the personis, as a result of a mental health disorder or impairment by chronic alcoholism, a dangerto others, or to himself or herself, or gravely disabled( Welf & Inst. Code§ 5250 subd(a); the facility providing intensive treatmentis designated by the county to provide intensive treatment, and agrees to admit the person (Welf & Inst Code § 5250 subd (b); the person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis ( Welf & Inst Code § 5250 subd(c).) 28 fourteen day period of involuntary confinementonly if certain conditions were met; and third, by the institution of conservatorship proceedings under the LPS Act. Noneof these proceduralprotections were at play here, as the court repeatedly continued the attainment of competence hearing while the minor spent 294 days in detention. The minor wasdetained therefore under a far more lenient standard of commitment than would have applied under the LPS Act, in violation ofhis right to the equal protection of the laws. ( See Jackson v. Indiana, supra, 406 U.S.at 730.) Underthe Protocol, the juvenile court could have proceeded under the LPS Act if it was appropriate to do so. (Protocol, p. 7.) The court should not have used the incompetency procedures of Welfare and Institutions Codesection 709 to justify a the prolonged detention of a minor who was incompetentto standtrial accordingto the test results provided by the agency the probation department chose to provide competencytraining. (See In re Steven S. (1981) 126 Cal. App. 3d 23, 30-31 [ disapproving the use of the juvenile court proceedingsto effectively detain a mother in dependency proceedings in circumventionof the state's mentalhealth laws]. ) If the juvenile court had dismissedthepetitionsat 120 days andhadinstituted LPSact proceedings, the minor’s constitutional rights would havereceived the necessary protection under the law. (See In re StevenS. Supra, 126 Cal. App. 3d at 31. ) If the Protocol's time limits are not binding, as the Court of Appeal holds, then minors found incompetentin the delinquency court may be detained indefinitely, but without the procedural protections that applytocivil 29 commitment. Review should be granted to determine whether minors found incompetenton the basis of developmental immaturity, with recommendations for the provision of mental health services are similarly situated to minors found incompetent on the basis of a mental disorder so that both groups of incompetent minors enjoy the sameprotections afforded in civil commitmentproceedings. Ii REVIEW IS NECESSARY TO DETERMINE WHETHER THE JUVENILE COURT ACTED IN EXCESS OF ITS JURISDICTION UNDER WELFARE AND INSTITUTIONS CODESECTION 709 AND THE LOS ANGELES COUNTY AMENDED PROTOCOL ON JUVENILE COMPETENCE WHENIT HELD A COMPETENCY HEARING AFTER DETAINING THE MINORIN JUVENILE HALL FOR TWO HUNDRED AND NINETY FOUR DAYS WITHOUT EVIDENCE OF PROGRESS TOWARD COMPETENCY Jurisdiction" is generally construed to mean the powerof a court to hear and determine, or powerto act in a certain manner. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 281.) A court acts in excess of jurisdiction “where, though the court has jurisdiction over the subject matter and the parties in the fundamentalsense,it has no ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kindsofrelief, or to act without the occurrence of certain procedural prerequisites.” (Id. at 288.) Welfare and Institutions Code section 709 and the Amended Competencyto Stand Trial Protocol of the Los Angeles Juvenile Court set forth the procedural requirements that a juvenile court must follow after finding a minor incompetentto stand trial and suspending delinquency.(See In re Jesus G (2014) 218 Cal.App.4th 157, 168, 174. ) In this case, 30 the juvenile court acted in excess ofits jurisdiction whenit detained the minor in juvenile hall for more than one hundred and twenty days while delinquency proceedings were suspended and held a new competencyto standtrial hearing that was notauthorized by the statute as implemented by the Protocol. OnJanuary 12, 2012, the presiding judge of the Los Angeles County Juvenile Court issued the Amended Competencyto Stand Trial Protocol which sets forth detailed procedures to govern competency proceedingsin the juvenile courts. The Protocol mirrors the language of Welfare and Institutions Code section 709 and alsoestablishesspecific timelines designed to prevent the indefinite commitment of minors whoare notlikely to recover competence.( In re Jesus G., supra, 218 Cal. App. 4th at 171. ) Division Seven of this court held in In re Jesus G., supra, that the Protocol implements Welfare and Institutions Code section 709 and “addsadditional rules for competency proceedings.” (In re Jesus G., supra, 218 Cal. App.4th at 168. ) The court observed that section 709 does not contain a time limitation on the duration of competency services or how long a minor maybe detainedin juvenile hall, but addresses only the length of time proceedings may be suspendeddueto a finding of incompetency, that is, “no longer than is reasonably necessary to determine whetherthereis a substantial probability that the minor will attain competencyin the foreseeable future, or the court no longerretains jurisdiction.” (Id. at 168, citing Welf. & Inst. Code, § 709, subd.(c).) The court held, therefore, that the Protocol's 120-day limitation on the detention period doesnot contradict or overrule section 709, but adds additional rules for competency proceedings. 31 In this case, Division Five held that the Protocol is nor entitled to the effect of law, because a presiding justice cannot direct or review theacts of co-equal judges. However, court rules have the force of positive law andare binding as procedural statutes when they do not contradict legislative enactments or constitutional guarantees.(In re Juan C. (1993) 20 Cal.App.4th 748, 752-753.) In this case, according to the court in In re Jesus G, the Protocol sets forth a policy to implement Welfare and Institutions Code section 709, which provides that when a doubtis expressed as to the competence of a minor in delinquency proceedings, the juvenile court must suspendthe proceedings, appoint an expert to evaluate the minor and hold a hearing to determine whetherthe minoris competentto standtrial. (Welf &Inst Code § 709 subd (b).) If the minor is found incompetentto standtrial, all proceedings must remain suspended for a period of time that is no longer than reasonably necessary to determine whetherthere is a substantial probability that the minor will attain competency in the foreseeable future or the court. (Welf & Inst Code § 709 subd(c). Section 709 sets forth the actions the juvenile court may take while delinquency proceedings are suspended and those provisions do notinclude the actions taken by the juvenile court in this case. Specifically, the court may make orders that it deems appropriate for services to assist the minorin attaining competency and it may rule on motions that do not require the participation of the minor in their preparation. (Welf & Inst § 709 subd (c).)? While the ° These motions include, but are not limited to, motions to dismiss, motions by the defense regarding a change in the placementof the minor, 32 Protocol expressly confers jurisdiction on the juvenile court during the suspension of delinquency proceedings,”like section 709, it limits the actions the juvenile court may take while proceedings are suspended to the making of orders for services to assist the minor, and to ruling on motions that do notrequire the participation of the minorin the preparation of the motions.” (Protocol, pp. 4-5, 7.) These limitations onthe jurisdiction of the court apply to both detained and non-detained minors. (Protocol, pp. 4-5.) The court’s order for a new competency evaluation when the minor had been detained in juvenile hall for more than one hundred and twenty days was neither an orderfor services to assist the minornor a ruling on a motion which did not require the minor’s participation in its preparation. Nor wasit a valid exercise of the juvenile’s court's jurisdiction at the attainment of competency hearing : the Protocol permits both minor's counsel andthe district attorney to request a further competencyto standtrial evaluation or a full evidentiary detention hearings, and demurrers. (Welf & Inst Code § 709 subd(c).) * “The Juvenile Court shall maintain jurisdiction during the time that the minoris being evaluated for competency and during the time that the minoris participating in a program to attain competency. The court mayalso retain jurisdiction over the minor while he or she is subject to LPS Act proceedings. “ (Protocol, p. 7.) " These motionsinclude, but are not limited to, motions to dismiss, motions by the defense regarding a changein the placementof the minor, detention hearings, demurrers, and motionsto join or subpoena governmental agencies that have an obligation to provide services to minor. (Protocol, pp. 4-5.) 33 hearing at the attainment of competency hearing, but the samesection of the Protocol unequivocally states that no minor maybe detained for competency training for more than one hundred and twentydays. (Protocol, section E, p. 7.) In sum, there is no provision in the statute or the Protocol that gave the juvenile court the jurisdiction to require a new competency evaluation and to hold an attainment of competency hearing when the minor had been detained for more than one hundred and twenty days while delinquency proceedings were suspended dueto a previousfinding of incompetenceto standtrial. Review should be granted to determine whetherto do so was anactin excess of the juvenile court's jurisdiction. (See People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 66 [ construing Penal Code section 1368.) Lackof jurisdiction in its most fundamental sense meansan entire absence of powerto hear or determinethe case, an absence of authority over the subject matter or the parties. (Abelleira, supra, 17 Cal. 2d at 288.) A court may have fundamentaljurisdiction, however, butstill lack the “‘jurisdiction’" (or power) to act except in a particular manner, or to give certain kindsofrelief, or to act without the occurrence of certain procedural prerequisites. “ (Ibid.) Thus, for example, a probate court with jurisdiction of an estate and, therefore, over the appointmentof an administrator, nevertheless acts in excess of jurisdiction if it fails to follow the statutory provisions governing such appointment. (Id,citing Texas Co. v. Bank ofAmerica (1935) 5 Cal. 2d 35, 39.) So, too, in this case, while the juvenile court had fundamentaljurisdiction over the suspended delinquency proceedings, it was required to comply with the provisions of Welfare and 34 Institutions Code section 709 and the requirements of the Protocol. (In re Jesus G., supra, 218 Cal.App.4th at 168, 174.) Asnoted above, the Protocol states unequivocally that a minor not be detained longer than one hundred and twenty days while receiving competency services. Oncethat limit was reached, the juvenile court in this case had only two options: to release the minor, or to dismiss the petitions and,if appropriate , institute civil commitment proceedings. (See Jackson v. Indiana (1972) 406 U.S. 715, 738 [92 S. CT. 1845; 32 L. Ed. 2d 435); In re Davis (1973) 8 Cal.3d 798, 806.) The court acted in excessofits jurisdiction whenit failed to follow the statute as implemented by the Protocol. “The naked powerconferred by subject matter jurisdiction cannotsanction a violation of rights.. “ (People v. Superior Court (Marks), supra, 1 Cal. 4th at 71.) That the minor subsequently admitted the petition is of no effect. “ The demandsof due process in the determination of competency do not distinguish between the routes taken to conviction. “ ( In re John Z. (2014) 223 Cal. App. 4th 1046, 1058.) IV REVIEW SHOULD BE GRANTED TO DETERMINE WHETHER THE JUVENILE COURT VIOLATED THE MINOR’S SIXTH AMENDMENT RIGHT TO CONFRONTTHE WITNESSES AGAINST HIM WHEN, IN DETERMINING THAT THE MINOR SHOULD BE REEVALUATED FOR COMPETENCY BECAUSE HE MIGHT BE MALINGERING, IT CONSIDERED THE HEARSAY STATEMENTS OF AN ATTORNEY WHOWASNOTA PARTY TO THE PROCEEDINGS Whenthe petitions werefiled against the minor, he was a dependantof 35 the juvenile court pursuant to Welfare and Institutions Code section 300 because of neglect and abuse by his mother and his grandmother. (CT 17, 60.) The Welfare and Institutions Code andrelated rules include a number ofprovisionsthat apply only to minors who might be both dependants under Welfare andInstitutions Codesection 300 and wards under Welfare and Institutions Codesection 602. Welfare andInstitutions Codesection 241. 1 provides that in such cases, the county probation departmentandthe child welfare services departmentare to determine whichstatus will serve the best interests of the minor and the protection of society and present their joint recommendationto the juvenile court which must determine whichstatus is appropriate for the minor. When,as here, the minoris a dependent whofound incompetentto standtrial and is detained while delinquency proceedings are suspended, the court must order Probation and the Department of Children and Family Services (DCFS) to evaluate the minor and submit an IST Planning Reportto the court. Probation should consult with the DMHto determine whether mental health services are available to help minor attain competency. Providing services to attain competency mayincludethe coordination of services from DMH,Regional Center, education agencies and any otherentity that has an obligation to provide services to the minor. To dothis, for minors whoare dependents, the court may consider joining such entities in the court proceeding, pursuant to Welfare and Institutions Codesection 362 subdivision 36 (a). (Protocol, p. 6.) Also Welfare and Institutions Code section 727 subdivision (b) (1) providesthat to facilitate coordination and cooperation among agencies, the court may,at any timeafter a petition has been filed, after giving notice and an opportunity to be heard,join in the juvenile court proceedings any agency that the court determineshasfailed to meet a legal obligation to provide services to a minor, for whom a petition has been filed under Section 601 or 602 (Welf & Inst Code § 727 subd (b)(1). ) The purpose of joinder underthis section is to ensure the delivery and coordination of legally mandatedservices to the minor. The joinder shall not be maintained for any other purpose.(Ibid. ) In this case, county counsel representing DCFS appeared at a numberof hearings. While the DCFS’sfailure to provide appropriate placementservices for the minor could arguably have allowed the delinquency court to join the agency in the minor’s competency proceedings since he was also a dependent of the court, it did notdoso. The court nevertheless permitted counsel for the agency to appear and to opine on the minor’s competency despite section 727's limitation of joinder for the purpose of ensuring the delivery of services to the minor and for no other purpose. (Ibid.) To allow the participation of county counsel for purposes other than the delivery of services and to order a ” If a child is adjudged a dependentchild of the court on the ground that the child is a person described by Section 300, the court may makeanyandall reasonable orders for the care, supervision, custody, conduct, maintenance, and supportof the child, including medical treatment, subject to further order of the court.( Welf. & Inst Code § 362 subd(a). ) 37 competencyevaluation because of county counsel’s bare assertion that the minor was malingering wasjudicial misconduct that denied the minor a meaningful opportunity to confront the witness against him,in violation of the Sixth Amendment. (See Witkin and Epstein, 3° Edn, vol 5, p. 796 [ judicial misconduct to consider matters not in evidence; People v. Armstead, 102 Cal. App. 4th 784, 794. [ Sixth Amendmentright to confront evidence J.) Ata hearing for progress on competency on October 16, 2013, the DCFS was represented by Los Angeles county counsel Paul Scolari. (RT vol. I, 92 ) Prior to the hearing, the district attorney had advised the court and counsel for the minorthat there were “indications” that the minor might be “malingering.” Because of this information, the court decided to appoint an expert to re- evaluate the minor. (RT vol. I, 93, 94, 947.) Counsel for the minor requested discovery of the source of the information that the minor was malingering, and the district attorney indicated that it was Mr Scolari. (RT vol. [, 102.) Scolari stated that he had been presentin the dependency hearings and stated to the court: “I believe that a couple of transcripts have been ordered from two different dependency hearings where Albert and Judge Pellman had discussions that some believe would showthis court that he’s very aware of what’s happening.“ (RT vol. I, 103.) The court thanked MrScolari and asked hm to lodge a copyof the transcripts with the court, the prosecution, the defense, and the expert appointed to reevaluate competencyin lightof the allegations of malingering. (RT vol. I, 103.) There is no indication in the record whetherthese transcripts were lodged as directed. The court hadstill not joined Los Angeles 38 County or the DCFSas party to the action. In January 2014, after the court received a report from Dr Cory Knapke indicating that the minor was not competentto standtrial at that time, it held an attainment of competency hearing. (RT vol. I, 130.) Mr Scolari was present although the courtstill had not joined DCFS in the competency proceedings under Welfare and Institutions Code section 727. Scolari informed the court that in his opinion the minor “ knows morethan I think he’sletting on. I know in my conversations with the supervisor andthe social worker on this case who had frequent phone contact with Albert they never had any indication whatsoever that he wasn’t completely aware of what's going on in his dependencycase as well as his delinquency case. “ (RT vol. I, 137.) The court subsequently asked Scolari whether it was the DCFs’s position that the minor was malingering. (RT vol. I, 144.) Scolari responded that “again, talking to the supervisor and the social worker, we’ve had numerousconversationsoverthe past year with Albert and they have — andI havealso talked to the county counsel... in his dependency case... and all three of them believe that Albert clearly understands whatis happening in both courtrooms. He...discusses the issues with the judge at length and the conversations that they have had with him healso seemsto be on top of whaty’s going on. He knowsexactly what his situation is and they think he’s - - they think he’sintelligent and they think he understands whathe’s doing. * (RT vol. I, 144.) The court responded “ And youstated this position several times over, as this is not the first appearance that you have madeon behalf of DCFS;is that correct? “ (RT vol. I, 144-145.) Scolari replied : “True. It’s always been their 39 B A R R A 0 So ak , e e a e opinion that Albert knowsexactly what he’s doing. “ (RT vol. I, 145.) Counsel for the minor noted that the dependency court does not deal with competencyissues orthe legal standard for competency in delinquency proceedings. (RT vol. I, 145-146.) The court concluded that there might be some objection to county counsel beingjoined in the action and asked county counsel and counsel for the minor to present points and authorities to the court. (RT vol. I, 148.) Despite Dr Knapke’s report finding the minor incompetent, the court continued the attainment of competence hearing for another month for an evidentiary hearing. Counsel for the minor repeatedly objected to the presence and participation during competency proceedings of Paul Scolari, counsel for the Department of Children and Family Services, on the ground that he was not a party to the action. Without ruling on counsel’s objection, the court allowed Scolari to participate and to offer his unsworn and speculative opinions about the minor’s competence. One result of the court’s error in permitting Scolari to participate in this manner, without being sworn as a witness, wasthat the court heard his opinion that the minor was malingering but the minor had no opportunity to confront and cross-examine him, as guaranteed by the Sixth Amendment. The Court of Appeal rejected the minor’s Sixth Amendmentclaim on the groundit wasforfeited for failure to raise it noting that “a timely objection would * Counsel for the minorfiled a Memorandum of Points and Authorities. (CT 145-147) There is no memorandum from County Counselin the record and no ruling by the juvenile court. 40 Be Re 2& have allowed thecourt to easily cure any purportedviolation of the right to confrontation by the calling of witnesses. “ (Opinion, p. 36.) below. As the minor pointed outin his Petition for Rehearing, the court mistook the thrust ofthe minor’s contention which is that Paul Scolari was essentially permitted totestify while he wasnot underoath andnot subject to cross examination. Thecalling of other witnesses would not havecured the juvenile court’s error in permitting Mr Scolari to offer statements for the truth of the matter, while not a party to the action and not underoath as a witness himself. Also, raising the Confrontation Clause challengefor the first time on appeal when counsel for the minor objected on groundsthat Scolari was nota party to the case, is equivalent to the issue in People v. Partida (2005) 37 Cal.4th 428. There, at trial, the defense objected to the admission of gang evidence on statutory grounds, Evidence Codesection 352. On appeal, the defendantasserted that the admission of evidence substantially more prejudicial than probative also amountedto a federal due process violation. The Supreme Courtreiterated that a defendant "may not arguethat the court should have excluded the evidence for a reason different from histrial objection.” But the Court continued, "however, ... defendant may make a very narrow due process argumenton appeal. He may arguethat the asserted error in admitting the evidence over his Evidence Codesection 352 objection had the additional legal consequenceof violating due process." (Id. at 435. ) So too here. The error of allowing Scolari to make statements that amounted to testimony while not underoath and notjoinedas a party had the additional legal consequence of ee 41 violating his due process rights under the Sixth and Fourteenth Amendments. The court also held that the minor did notsuffer any prejudice as a result of Scolari’s statements because the juvenile court made no mention of them inits ruling. (Opinion, p. 37.) Again, the court mistook the nature of the minor’s contention, whichis that he was prejudiced because Scolari’s improper and unsworn statements introducedto the court the unfoundedassertion that the wasmalingering. Finally, the court held that there was no merit to the minor’s Sixth amendmentclaim because the right to confrontation is a trial right and the juvenile court’s consideration of Scolari’s comments did not implicate the right to confrontation. (Opinion, pp 36-37) Contrary to the court’s assertion, the Sixth Amendmentright to confrontation applies in delinquency proceedings( In re Damon H.(1985) 165 Cal.App.3d 471, 477, fn.6. ) Las the court holds the Sixth Amendmentdoes not protect the right to confront and cross-examine witnesses at a competencyhearing, there would be no remedyif a juvenile court prevented counsel for a minor from cross-examining witnesses whotestified at an attainment hearing. The due process clause prohibits trying a criminal defendant whois mentally incompetent and the samerule applies to minors in delinquency proceedings. (Medina v. California (1992) 505 U.S. 437, 439 [120 L. Ed. 2d 353, 112 S. CT. 2572]; James H. v. Superior Court (1978) 77 Cal. App. 3d 169, 174; TimothyJ. v. Superior Court (2007)150 Cal. App. 4th 847.) Accordingly, a competency hearing must be conducted in accordance with due process. Review should be granted to decide the important question of law regarding the application of the Sixth 42 Amendmentright to confrontation in competency proceedings. Vv REVIEW IS NECESSARY TO DETERMINE WHETHERA JUVENILE COURTERRSIN FAILING EXPRESSLY TO CONSIDER A MINOR’S IMMATURITYAS A BASIS FOR A FINDING OF INCOMPETENCE The standard for determining competencyto standtrial is whether a defendanthassufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whetherhe hasa rational as well as factual understanding of the proceedings against him.'" ( Ibid. ) Minors have the right to a competency hearing in delinquency proceedings and may be found incompetent based upon their developmental immaturity, without a finding of mental disorder or developmental disability. (Timothy J. v. Superior Court (2007)150 Cal. App. 4th 847, 857-861.) In this case, the juvenile court ordered a new evaluation of the minor becauseit suspected that he might be malingering (RT vol. f, 93.) In his written report to the court, however, the appointed expert stated that the minor was not competent to standtrial at that time, on the basis of his lack of experience and immaturity, but that it was his opinion the minor could be restored to competency.(RT vol. I, 131, 133. ) On the question whether the minor wasfaking or malingering, the report concludedthatit could not be ruled out, but thatDr Knapke agrred with Dr Kambam that the minor did not have an adequate understanding of courtroom proceedingsat this time, and that because of the gravity of the allegations against him, the minor deserved to have the opportunity to haveasfair of a trial as possible, he should have an adequate 43 understanding of courtroom proceedings before commencingwithhis legal proceedings., Knapke bleived the minor had the capacity to learn andstated that the trainers should be cognizant ofthe possibility that the minor could be exaggerating his lack of understanding. " (RT vol. I, 142-143. ) At the court's prompting, the District Attorney asked that the matter be set for an evidentiary hearing. (RT vol. I, 139.) The court indicated that it wanted to hear from Dr Knapkeasit believed that the issue of malingering was"a fair issuetolitigate in this case,"and set an attainment of competencyhearing for February 4, 2014. (RT vol. I, 143, 156.) Under Dusky v. United States, supra, the test of competency is whether a defendanthassufficient presentability to consult with his lawyer with a reasonable degree of rational understanding, and whetherhe hasa rational as well as factual understanding of the proceedings against him. (Dusky v. United States, supra, 362 U.S. at 402. ) Unlike an adult, a minor does not need to suffer from a mental disorder or developmental disability to be found incompetentto standtrial: he or she may be found incompetent onthe basis of developmental immaturity alone. ( Welf & Inst Code § 709 subd(b); In re John Z., supra, 223 Cal.App.4th at 1053; Timothy J. v. Superior Court, supra, 150 Cal. App. 4th at 852, 860.) Dr Knapke’s report stated that the minor was incompetentbecauseof his lack of maturity. (CT 139) After hearing testimony at a new competency hearing, the court stated that it found “ overwhelming evidence to suggest that the minor has been exaggerating his responses andthat’s the only reason whyhe’s failed to give an 44 accurate and forthright response to someof the questions that are contained within the questionnaire. “ (RT vol. I, 248.) In focusingits analysis on the question whetherthe minor had “exaggerated” his response to “someof the questions, ” in the competency assessmenttests, the court departed from the broaderissueit was requiredto decide: did the minor’s lack of maturity result in trial incompetence despite the absence of any underlying mental or developmental abnormality. (See Timothy J. v. Superior Court, supra, 150 Cal.App.4th at 860.) Put another way, the juvenile court made nofinding, by a preponderanceof the evidence or otherwise, regarding the minor’s ability to consult with counsel and to assist in preparing his defense. ( See Bryan E. v. Superior Court (2014) 231 Cal. App.4th 385, 392. ) To be competent underthe constitutional standard set forth in Dusky, the minor had to have a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and both a rational as well as a factual understanding of the proceedings against him. (Dusky v. United States, supra, 362 U.S. at 402. ) Before the attainment hearing that the juvenile court ordered becauseof its concern that the minor might be “malingering,”all of the evidence before the court was that the minor was incompetent becauseof his lack of maturity and his inadequate understanding of courtroom procedures. At the attainment hearing on February 4, 2014, the competencytrainer testified that the minor consistently madea goodfaith effort during training sessions, that he had some problemswith retention and understanding, that he had made someprogress, but that his test results demonstrated that he wasstill 45 incompetent (RT vol. I, 180 -182.) Dr Knapketestified the minor wasnot developmentally disabled, but that other factors had resultedin his inability to learn basic concepts. (RT vol. I, 205.) "He[ the minor] definitely was unsophisticated and child-like and he did not appearas if he had a handle on somebasiccore information. For example,I asked him basic geography, the names of the oceans on the East Coast and the West Coast of he United States. He was unable to answerthose typesof questions. Theseare basic questions that most individuals learn in school, but obviously he hasn't been going to school on a regular basis and he has not learnedhis basic information. " (RT vol. I, 216.) Dr Knapke did not suggestthat the minor was malingering whenhefailed to answer basic geography questions. The minor’s overall score on academic testing placed him somewhere between the fourth grade and the middle to end of sixth grade. (RT vol. I, 217.) The minor was born in 1997 and wasin the tenth grade whenhe wasfirst arrested in 2012. (CT 8.) He wasthe subject of an Individual Education Plan (IEP) and was in special needs classes. (CT 23) Dr Knapke stated that he could not “rule out” the possibility that the minor was exaggerating his lack of understanding because “there’s no psychiatric reason from mypointof view that heis unable to learn basic courtroom proceedings, especially after eight months of competencytraining . “ (RT vol. I, 205-206) The legal standard for incompetency of minors doesnot, however, require a “psychiatric reason” for the minor's incompetence. It is enough if a preponderanceof the evidence showsthatheis presently not able to 46 assist in his defense because he lacks a factual understandingof the proceedings against him. (Dusky v. United States, supra, 362 U.S. at 402. ) Although an adult's incompetenceto standtrial must arise from a mental disorder or developmentaldisability that limits his or her ability to understand the nature of the proceedingsand to assist counsel the same maynotbe said of a minor whose developmental immaturity mayresult in trial incompetence despite the absence of any underlying mental or developmental abnormality. (BryanE.v. Superior Court , supra, 231 Cal. App.4th at 391; Timothy J. v. Superior Court, supra, 150 Cal.App.4th at 860. ) The competencytrainertestified that the minor was not able to achieve a passing score on the competency assessmentthat tested understandingof factual information aboutthe judicial process, and even Dr Knapke, whocould notrule out the possibility of some exaggeration, testified to the minor’s academic impairment and immaturity. (RT vol. I, 216.) Dr Knapke testified that he believed that the minor was rationally able to cooperate with his attorney but did not have an adequate understanding of basic courtroom proceedings. Becauseofhis lack of education, his academicskills and understandingfell behind his peers even though his IQ was determined to be normal(RTvol.I, 204) While Dr Knapke,testified that he could notrule out the possibility that he wasexaggerating his lack of understanding of courtroom proceedings, he concededthat he could not determine with a degree of substantial probability that the minor was exaggerating. (RT vol. I, 205, 232.) Dr Knapke could not say whether the minor now hada better understanding of courtroom proceedings 47 than when he examined him in November 2013 and found him incompetent, because he had not examined him since then. To comment on that, he would need to re-evaluate the minorto see if there had been sufficient progressto attain competency. All that Dr Knapke could say was “I think its pretty probably likely that he does understandbasic courtroom proceedings. At this time howeverI cannot say that with a high degree of medical certainty because I have not examinedhim personally since my last examination, “ (RT vol. I, 233.) In finding the minor competent Instead, the court noted the absenceof mental retardation, the absence of developmentaldisability and the absence of mental retardation and stated “ I agree with Dr Knapkethat there’s no reason why this minor has not yet obtained competency “ and “I find that there is overwhelming evidence to suggest that the minor has been exaggerating his responsesandthat’s the only reason whyhehasfailed to give an accurate and forthright response to some of the questions that are contained within the questionnaire. “ (RT vol. I, 248.) “Overwhelming evidence”™ that the minor exaggeratedorfailed to give an accurate response to “some”of the questions on the questionnaire is not the sameas finding that the minorhad sufficient present ability to consult with his lawyer with a reasonable degreeof rational understanding, and a rational as well as a factual understanding of the proceedings against him. (See Dusky v. United States, supra, 362 U.S. at 402. ) In Bryan E., for example, the appointed expert “* Appellant does not concede that the record shows “overwhelming evidence” that the minor was malingering. 48 testified that the minor was incompetentto standtrial because he did not appear to have a factual, as well as rational understandingof the natureofthe charges and proceedings against him and did not appearto be able to assist in his defense because his depression limited his ability to consult with counsel. He conceded oncross-examination that the minor did not appear to have any developmentaldisabilities and was doing reasonably well in school. ( (Bryan E.v. Superior Court, supra, 231 Cal. App. 4th at 389.) After hearing the testimony and readingthe report, the juvenile court found the minor competentto stand trial. The court stated its conclusion that minor wasable to express his understanding of the proceedings, noting for example, that “when asked about the difference between a guilty plea and a not guilty plea,” the minor wasable “to accurately describe whata guilty plea means, which in his words wasyou did it.” He “wasalso able to describe a not guilty plea meanthe didn't do it, he wasable to describe his charges as a felony, and he wasable to describe the chargesas fighting.” This court stated that there had not been a substantial showingthat the minor lacked “the ability to comprehend the court procedures pursuantto those standardsthat are required by law” and found that he was competentto standtrial. (Ibid.) Reversing on appeal, the court noted that a minor may be incompetent on the basis of developmental immaturity alone and does not need to show that his or her inability to understandorassist arises as a result of mental disorder or developmentaldisability. (Id at 291, citing In re John Z., supra, 223 Cal.App.4th at 1053 and In re Jesus G., supra, 218 Cal.App.4th at 170. ) The reviewing court also 49 notedthat it did not appear that the juvenile court applied the preponderanceof the evidence standard, having found that there was no “substantial showing “ that the minorlacked the ability to comprehend court procedures. (BryanE.v. Superior Court, supra, 231 Cal. App.4th at 392.) Similarly in this case, the court focused on the absence of evidence of mental retardation and developmental disability and the fact of the minor’s normalIQ. (RT vol. I, 246.) Just as the court in Bryan E. relied upon evidencethat the minorthere was able to answer some questions about courtroom procedure and was doing reasonably wellat school, so too here, the court relied upon evidence that the minor might have been exaggerating his answers to someofthe questions on the assessmenttest. Andjust as the court in Bryan E. did not make a finding on the preponderanceof the evidence, similarly here, the court did not base its finding of competence upon a showingthat the minor wasable to meet the Dusky standards by a preponderanceof the evidence, it relied instead on what it characterized as “overwhelming evidence” that the minor was exaggerating his responseson the assessmenttest. (RT vol. I, 248.) In rejecting the minor’s contention that the juvenile court did not consider immaturity as a basis for incompetency, the court of appeal found that the juvenile court “did not limit the possible causes of incompetency to mental disorder and developmentaldisability. The court applied the correct standard for assessing juvenile competency to determine that minor possessed the necessary mentalability to stand trial. “ (Opinion, p.23.) Aspointed outin the Petition for Rehearing, the record demonstrates to the 50 contrary, that in focusing its analysis on the question whether the minor had “exaggerated”his response to “someof the questions” in the competency assessmenttests, the juvenile court departed from the broaderissue it was required to decide: did the minor’s lack of maturity result in trial incompetence, despite the absence of any underlying mental or developmental abnormality.( See Timothy J. v. Superior Court (2007)150 Cal. App. ) Review should be granted to clarify that juvenile courts must consider immaturity aloneas a possible basis for a finding of incompetency. CONCLUSION For the reasons discussed above, the minorasks this court to grant review. Respectfully submitted Laini Millar Melnick Attorney for minor/appellant Albert C. 51 Certificate of Word Count I hereby certify that the numberof wordsin the Petition for Review is 14,335 . This certification is madein reliance upon the word countof the computer program usedto prepare thebrief. Signed: Laini Millar Melnick Dated: CASE NO.2 CRIM.B256480 COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE In the Matter of Albert C.,a Person Within the Jurisdiction of the Juvenile Court THE PEOPLE OF THE STATE OF CALIFORNIA Respondent Juv.Ct.No.MJ21492 (Los Angeles) vs. ALBERT C. Appellant e e e e e e e a e e s APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY HONORABLE DENISE MCLAUGHLIN-BENNETT, JUDGE PRESIDING APPELLANT’S PETITION FOR REHEARING Laini Millar Melnick Attorney at Law 1187 Coast Village Road Suite 1-573 Santa Barbara, CA 93108 (805) 770-7264 State Bar No. 133004 Attorney for Appellant Albert C. Table of Contents Table of Authorities ........cccccesssssscsssessesssenseseesesessesseesnsessuscsesssessecsessssesssesusssseesessesarsaeens3 Petition for Rehearing ........ccccesssssseseseeeeesssesesssssessssseseesesseseesssceessessessesusssasacaeaeees4 Reasons for Rehearing ..........cececcesecsssssssessessssesescseesecucenessesaesuestcanenssssesssatessesssatsesseaeeens5 CONCIUSION ......cesccsseesesseseeseseeseesescacssessesneacssesesussssesessssussnessesussessessseasssseeeesesssssersssesacaeess 11 Certificate of Word Count Proof of Service Table of Authorities California Cases People v. Partida (2005) 37 Cal.4th 428 .....c.ccccccccscsssssscscssscsessesssssscscsscssestecees 10 San Francisco v. Pacific Bank (1891) 89 Cal.23 oo. eceecsestesseetsescsesesesscsesereeses5 Timothy J. v. Superior Court (2007)150 Cal. App. 4th 847oes9 California Rules of Court Rule 8.268 (Subd) (b)(1)(A) seessssssssssssssssssscssssssssssccesssssssssssssessssssnssanseeresesessssasees4 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION FIVE In the Matter of Albert C.,a Person Within the Jurisdiction of the Juvenile Court THE PEOPLE OF THE STATE OF CALIFORNIA ) ) Respondent ) 2 Crim B256480 ) Juvenile No.MJ21492 V. ) ) ) ) ALBERT C. ) Petitioner ) PETITION FOR REHEARING TO THE HONORABLEJUSTICES OF THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATEDISTRICT, DIVISION FIVE: Pursuant to Rule 8.268 subdivision (b)(1(A) of the California Rules of Court, petitioner Albert C. respectfully petitions this court for a rehearing of this appeal, the decision in which was rendered on November10, 2015 (In the Matter ofAlbert C., B256480, Unpublished Opinion of the Second District Court of Appeal, Division Five, hereinafter “Opinion.”) The groundsfor rehearing are set forth below. REASONSFOR REHEARING A Petition for Rehearing is an appropriate wayto bring to the attention of the reviewing court any error which the court may have madeinits opinion or any matters which may have beenoverlookedin the decision. (San Francisco v. Pacific Bank (1891) 89 Cal.23, 25.) The minor drawsthis court’s attention to the following errors and omissions. (1) This court stated that the delinquency court’s efforts to place minorin a less restrictive setting than juvenile hall were “ madedifficult by his abysmal behaviorin juvenile hall “ noting that in March and April, the minor was involved in eleven incidents in the juvenile hall, and that probation filed three behavior reports with the court, detailing incidents involving minor. (Opinion p-5) The record shows howeverthat after April 2013 there were noreports of bad behaviorin juvenile hall, although the minor was detained for about another nine months, until February 2014. To the contrary,in fact, the record demonstratesthat after April 2013, the minor performed well. On October 13, 2013, counsel for the minor submitted to the delinquency courtcertificates of excellence and good grades.(RT vol. I, 100.) Counsel submitted an additional six certificates of excellence on November12, 2013. (RT vol. I, 123-124.) After April 2013, therefore, the minor’s behavior in the juvenile hall could notjustify his continued detention, because his conduct was good. (2) In rejecting the minor’s constitutional challenge to the length of his detention, the court stated: “the reason minor remained detained for 294 days while receiving services was minor's manipulation of the system. The circumstances of this case do not amountto a dueprocessviolation. The length of detention in this case wasthe product of minor's determination to avoid a finding of competency, as evidenced by his repeated answerof "I don't know"to basic questions despite monthsof training, an average IQ, and no mentaldisease or defect. “ (Opinion p. 27.) The record does not support the court’s conclusion that the reason for the length of the minor’s detention was the minor’s manipulation. First, when the minor had been in custody for four months, he had received only two competencytraining sessions. (RT vol. I, 30- 31.) This delay in providing the necessary services wasnot in any waythe fault of the minor. Second, Nico Gipson, the competency trainer who worked with the minor for eight monthstestified that he was cooperative and made a goodeffort. She testified the minor was cooperative and attentive during their sessions, that he participated and volunteered information. (RT vol. I, 176.) Because the minor was participating andtrying to learn, their sessions often lasted the full hour and a half that was scheduled. (RT vol. I, 180.) Gipsontestified that the minor attempted to answerthe questions that he knew.(RTvol. I, 174.) He would ask questions, and althoughat the beginning, he would get everything wrong, there were times when he would answer somequestionscorrectly. (RT vol. I, 167-168.) In her opinion, he was making a goodeffort. (RT vol. I, 180.) (3) One of the factors this court relied upon in finding reasonable the length of time the minor wasdetained for competency training was Dr Kambam’s opinion that “the minor would be expected to regain competency within 12 months. “ (Opinion, p. 29.) What Dr Kambam’s report stated was: “ While the minoris significantly impaired in his ability to retain information, reason, and make decisions, he has not had any medication trials with medications (such as ADHD medications) that improve executive functioning and reduce inattentive and hyperactivity-impulsivity symptoms. With mental health services to intervene in this area, and with repetitive education of competency-related concepts, he would likely significantly improve his understandingof these concepts." ( See Opinion, p. 7) This court held that it was reasonable for the juvenile court to grant continuances when the minor was continuing to receive competency training and it was within the 12-month period forattaining competency referenced in Dr. Kambam'soriginal report. ( Opinion pp 11-12.) Whatthis court does not take into accountis that the minor wasnotreceiving the otherservices recommended by Dr Kambam.There is nothing in the record to showthatthe minorreceived any of the medication trials or mental health services that Dr Kambamsawasan integral part of the process of attainment of competency. (4) In rejecting the minor’s contention that the juvenile court did not consider immaturity as a basis for incompetency, this court found that the juvenile court “did notlimit the possible causes of incompetency to mental disorder and developmentaldisability. The court applied the correct standard for assessing juvenile competency to determine that minor possessed the necessary mental ability to standtrial. “ (Opinion, p.23.) The record demonstrates to the contrary, that in focusing its analysis on the question whether the minor had “exaggerated” his response to “someof the questions” in the competency assessmenttests, the juvenile court departed from the broaderissue it was required to decide: did the minor’s lack of maturity result in trial incompetence, despite the absence of any underlying mental or developmental abnormality. (See Timothy J. v. Superior Court (2007)150 Cal. App. 4th 847, 860. ) As this court notes, the juvenile court madea detailed ruling on this matter. It is set forth in volumeI of the Reporter’s Transcript, pages 245- 248. In those four pages, the juvenile court madenot a single referenceto the principle that immaturity could be the basis for a minor’s incompetence. (5) This court concluded that based on thetotality of the evidence before the juvenile court, the court “ fairly concluded there was overwhelming evidence that minor ‘exaggerated’ his answers to his own benefit—a polite wayofstating he wasfeigning incompetence, just as minor's mother and grandmother had suggested early in the proceedings.” (Opinion, p . 21) The record does not contain “overwhelming evidence” that the minor was exaggerating his incompetence. Nico Gipson’s testimony wasthat the minor was making a good effort, and even Dr Knapketestified that without a further evaluation he could not say to a medical certainty that the minor was competent. (RT vol. I, 233.) This court referred also to the hearsay statements of the minor’s mother and aunt who told a probation officer they thought the minor might be malingering. The minor’s mother’s statements should be regarded with caution asto their reliability in light of the sustained petitions for maternal neglect under Welfare andInstitutions Code section 300. (6) In rejecting the minor's contention that consideration of Paul Scolari's statements violated the Confrontation Clause, this court held the issue forfeited for failure to raise it below, noting that “a timely objection would haveallowed the courtto easily cure any purported violation of the right to confrontation by the calling of witnesses. “ (Opinion, p. 36.) This court mistakes the thrust of the minor’s contention whichis that Paul Scolari wasessentially permittedto testify while he wasnot underoath andnot subject to cross examination. Thecalling of other witnesses would not havecured the juvenile court’s error in permitting Mr Scolari to offer statements for the truth of the matter, while not a party to the action and not underoath as a witness himself. Also, raising the Confrontation Clause challenge forthe first time on appeal when counsel for the minor objected on groundsthat Scolari was not a party to the case, is equivalent to the issue in People v. Partida (2005) 37 Cal.4th 428. There, at trial, the defense objected to the admission of gang evidence on statutory grounds, Evidence Codesection 352. On appeal, the defendant asserted that the admission of evidence substantially more prejudicial than probative also amountedto a federal due process violation. The Supreme Court reiterated that a defendant "may not argue that the court should have excluded the 10 evidence for a reason different from histrial objection.” But the Court continued, “however, ... defendant may make a very narrow due process argument on appeal. He may arguethat the asserted error in admitting the evidence over his Evidence Codesection 352 objection had the additional legal consequenceof violating due process." (Id. at 435. ) So too here. The error of allowing Scolari to make statements that amountedto testimony while not underoath and not joined asa party had the additional legal consequence of violating his due process rights under the Sixth and Fourteenth Amendments. This court also held that the minor did not suffer any prejudice as a result of Scolari’s statements becausethe juvenile court made no mention of them inits ruling. (Opinion,p. 37.) Again, this court mistakes the nature of the minor's contention, which is that he was prejudiced because Scolari’s improper and unsworn statements introducedto the court the unfoundedassertion that the was malingering. CONCLUSION Becausethis court’s opinion mistakes the record as to the matters discussed above and mistakesthe law asto the forfeiture of the minor’s Sixth Amendmentclaim, the minorrespectfully asks the court to granthis petition for 11 rehearing. Respectfully submitted Laini Millar Melnick Attorney for minor/appellant Albert C.. 12 Certificate of Word Count I hereby certify that the number of wordsin the Appellant's Petition for Rehearingis 1,892. This certification is made in reliance upon the wordcountof the computer program usedto preparethe brief. Signed: Laini Millar Melnick Dated: November 25, 2015 Filed 11/10/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION FIVE In re ALBERTC., a Person Coming Under B256480 the Juvenile Court Law. (Los Angeles County Super. Ct. No. MJ21492) THE PEOPLE, Plaintiff and Respondent, V. ALBERTC., Defendant and Appellant. APPEALfrom ajudgment of the Superior Court of Los Angeles County. Denise McLaughlin-Bennett, Judge. Affirmed as modified. Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent. Proceedings against a minor on a juvenile delinquency petition (Welf. & Inst. Code, § 602)! must be suspendedif the minor“lacks sufficient present ability to consult with counsel andassist in preparing his or her defense with a reasonable degree of rational understanding, or lacks a rational as well as factual understanding, ofthe nature of the charges or proceedings against him or her” based upon a showingthat “the minor suffers from a mental disorder, developmental disability, developmental immaturity, or other condition ....” (§ 709, subds. (a) & (b).) Albert C., a minor namedin two section 602 petitions, was detainedin juvenile hall for 294 days* while receiving services to assist him in gaining competence after being declared incompetent to standtrial. At the end of that 294 day period, the delinquency court reinstated proceedings based on findings that minor was competent and he had “exaggerated”his inability to understand the nature of the proceedings. Minorcontendsin this appeal that the delinquency court’s handling ofthe proceedings after minor was declared incompetent violated various constitutional and statutory provisions, as well as a protocol drafted by the Presiding Judge of Juvenile Court in Los Angeles for the handling of cases in which a minoris declared incompetent. Minoralso challenges conditions of probation imposedaspart of a suitable placement order. We modify a condition of probation, but otherwise affirm. PROCEDURAL SUMMARY On July 13, 2012, a section 602 petition wasfiled alleging that minor threatened a ' All statutory references are to the Welfare and Institutions Code, unless otherwise indicated. 2 Minor wasdetained on thesection 602petitions for a total of 355 days. The period of 294 days is measured from the date of the competency planning hearing to the date minor was found competent, a period spanning from April 17, 2013, to February 4, 2014. 2 public officer, in violation of Penal Codesection 71.? Minor denied the allegations at his arraignment hearing and wasreleased into his mother’s custody. On August 14, 2012, minor’s motherreported that minorleft home without permission, he had not returned for 48 hours, and his whereabouts were unknown. Anarrest warrant wasissued. Minor remainedat large until his arrest on February 12, 2013. A secondsection 602 petition wasfiled alleging the following: assault by meanslikely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4) [count 1]); battery with serious bodily injury (Pen. Code, § 243, subd. (d) [count 2]); possession of a firearm by a minor (Pen. Code, § 29610 [count 3]); and criminal threats (Pen. Code, § 422, subd. (a) [count 4]).* At the arraignmenton the second section 602 petition, minor’s counsel declared a doubtas to minor’s competence and proceedings were suspended. Minorwasdetained in juvenile hall while proceedings were suspended. Ata hearing on February 4, 2014, the delinquency court ruled minor had regained competency and reinstated proceedings. On February 20, 2014, minor admitted count | of the first petition and count 1 of the second petition. He was ordered suitably placed. This timely appeal followed. DISCUSSION Constitutional Issues Wefirst address the constitutional issues raised by minor. He contends(1) the juvenile court improperly reinstated delinquency proceedings by applying an incorrect legal standard andrejecting the opinion of the expert who evaluated minor and found him incompetent, (2) his right to due process of law wasviolated by his lengthy detention 3 Minor was14 yearsold at the time the petition wasfiled. 4 Minor was15 years old at the time the secondpetition wasfiled. 3 without evidence of progress toward competency,(3) the length of detention violated his right to equal protection of the law because he wasnotafforded the procedural protections required for a civil commitment, and (4)his right to confront and cross- examine witnesses was violated when the court considered statements by a deputy county counsel. Minor’s contentions are based upon the manner in which the delinquency court proceeded from the time minor’s counsel declared a doubt as to minor’s competency. Weset forth a review ofthe proceedings in sections corresponding to the numerous arguments raised on appeal. The Section 602 Petitions, Detention, and Attempts to Place Minor Thefirst section 602 petition wasfiled on July 13, 2012. The delinquency court explained deferred entry ofjudgmentto minorata pretrial hearing on August 8, 2012. Minor’s counsel was unsure whether minor understood the proceedings. Asa result, arraignment wascontinued to September 19, 2012, and minor wasreleased hometo his mother.° An arrest warrant was issued after minor absconded from mother’s home on August 14, 2012. Minor’s whereabouts remained unknown until his arrest on February 12, 2013, which resulted in the filing of the second section 602 petition. Arraignment on the secondsection 602 petition was scheduled for February 15, 2013. The lawyer standing for minor’s counsel of record at the arraignment declared a doubt as to minor’s competencyto stand trial and proceedings were suspended. The > Accordingto the probation report filed on August 8, 2012, minor was a dependent child under section 300, and a joint assessmenthad been prepared pursuant to section 241.1 by the Probation Department (Probation) and the Los Angeles County Department of Children and Family Services (Department), with a recommended disposition of deferred entry ofjudgment (§ 790), with the Departmentas the lead agency. Recommendedservices included placementin the home, with minorto receive individual counseling, drug and alcoholtesting, and education services. 4 delinquency court ordered minor detained uponfindingthat it was “a matter of immediate and urgent necessity for the protection of the minor and the person and property of others that the minor be detained. Continuancein the homeis contrary to the minor’s welfare; reasonable efforts have been madeto preventor eliminate the need for removal. There are no available services that would prevent the need for further detention.” Similar findings supporting detention were made by the court at numerous proceedings until the ultimate resolutionofthe petitions. The delinquency court madeefforts to place minorin lessrestrictive setting than juvenile hall, taking into account that minor was also a dependent child under section 300. Efforts to place minor were madedifficult by his abysmal behavior in juvenile hall — “since the minor’s last court appearance on 03/19/2013, the minor has been involved in 11 incidents while inside juvenile hall,” and on March 20, 2013, “minorparticipated in gang activity when he flashed ‘gangsigns.’” Between April 10 and April 25, 2013, Probation filed three behavior reports with the court, detailing incidents involving minor. On June 20, 2013, Probation filed a report discussing the least restrictive setting for minor’s placement. The only available alternative to juvenile hall wasto release minor to the Department’s care and custody. The probation officer recommendedthat minor remain in juvenile hall due to his “past AWOL/runawaybehaviors.” When previously released to his mother’s custody, minor left home without permission and his whereabouts were not knownto Probation and the Department for six months. Minor was arrested on charges of assault by meanslikely to cause great bodily injury and criminal threats. Probation did not believe that the Department possessed the supervision and structure required to ensure minor’s safety and the safety of the community based on his past delinquent history. Because minor was under dependencyjurisdiction, the court could order the Departmentto screen minorfor a “Level 14” facility. Probation recommendedthat the hearing be continued for one month to assess minor’s progress. At the June 20, 2013 hearing, the court ordered the Department to screen minor for Level 14 placement. A July 17, 2013 probation report stated that the a caseworker from the Department presented minor’s case to the interagency screening committee on July 2, 2013. Minor metthe criteria for a Level 14 treatment program and/or a community treatmentfacility. Service providers at the meeting stated that they would present minor’s caseto their respective agencies, but that at the time no beds wereavailable. At an August 15, 2013 hearing, the delinquency court clarified that it intended the Department and Probation to coordinate a Level 14 placement, and that it was in communication with the dependency court judge who would makea joint order. Minor’s counsel renewedher objections to minor’s detention and movedto dismiss all charges because of the court’s failure to adhere to the Amended Competencyto StandTrial Protocol (Protocol) drafted by the Presiding Judge of Juvenile Court in Los Angeles and the constitutional requirements of due process of law. The court observedthat the deadlines in the Protocol are “not law, it is protocol, and the court does believe that for reasons that have been stated there’s good cause to deviate from protocol and has done so.” The court denied the motion to dismiss and continued the competency hearings with findings supporting minor’s continued detention. Atthe hearing on August 26, 2013, the court stated that minor waseligible for and agreed to Level 14 placement, but that there was a four to six week wait before placement. On September 18, 2013, minor’s counsel specifically requested minor be placed in the “Omega”housing unit of the Department. Minor’s social worker stated that she had never heard of the “Omega” housing unit. Probation’s October 16, 2013 report advised the delinquency court that minor did not meetthe criteria for admission into the Vista Del Mar facility. At a hearing on October 16, 2013, minor’s counselstated that at minor’s last appearance in dependency court, a placement was open for minorthat day but the dependency court failed to fund the placement and minor wasnot released. The delinquency court replied that the matter of funding would need to be resolved by the dependency court. Minor’s counsel renewed her objection to minor’s custody, arguing that minor wasnotlikely to attain competency 6 in the foreseeable future and the petitions should be dismissed. Deputy County Counsel Paul Scolari advised the court that minor’s next hearing in dependency court wasset for October 28, 2013, and that he would argue that the section 300 “home of parent mother” order be changedso that minor be ordered into the custody of the Department. Minor’s dependencyattorney, Brian Thompson,stated that minor was on the waitinglist for four different level 14 placementfacilities, but that minor had beenrejected at anotherfacility, Harbor View,dueto his gangaffiliation. Proceedings on the Issues of Competency and Treatment After minor’s counsel declared a doubt as to minor’s competency on February 15, 2013, the delinquency court appointed Dr. Praveen R. Kambamto evaluate minor for competency, and suspended proceedingsas to both petitions. Dr. Kambamfiled a report dated March 17, 2013, expressing the opinion that minor was incompetentto standtrial.® Dr. Kambam diagnosed minor with ADHD and Disruptive Behavior Disorder, but minor did not have any developmental disabilities. Dr. Kambam concluded: “It is my opinion, with reasonable medical certainty, that there is a substantial probability that the minor will attain Competency to Stand Trial in the next 12 months. While the minoris significantly impaired in his ability to retain information, reason, and makedecisions, he has not had any medication trials with medications (such as ADHD medications)that improve executive functioning and reduce inattentive and hyperactivity-impulsivity symptoms. With mental health services to intervene in this area, and with repetitive education of competency-related concepts, he would likely significantly improve his understanding of these concepts.” © Dr. Kambam’s report is not contained in the record on appeal, butis part of the record in a habeas corpus petition filed on behalf of minorin this court. Wetake judicial notice of the report, as it is a court record whichis an essential component of minor’s contentions on appeal. (Evid. Code, §§ 452, subd. (d)(1) & 459, subd.(a).) 7 In addition to Dr. Kambam’s report, the delinquency court wasalreadyin possession ofa report regarding minor’s schooling and education. Minorentered special education in March 2007, undertheeligibility of Attention Deficit and Hyperactivity Disorder (ADHD). According to an education report dated July 25, 2012, minorattained a“C” average in seventh grade but in eighth grade his average was “D-.” In the first semester of ninth grade minor wasfailing three courses andcloseto failing a fourth class, but doing “significantly better in his reading and English classes.” Minor had 53 period absencesthat semester. Minorfailed all of his courses in the second semester of ninth grade, while accumulating 170 period absences. “Factors contributing to his lack of success [in school were] poor attendance and inappropriate behaviors.” Cognitive testing on April 4, 2012, determined that minor possessed an average IQ. He did not meet the criteria for Specific Learning Disability, because although he haddeficits in his academic skills, they were attributable to “significantlife factors and lack of adequate exposure to school curriculum.” Minor waseligible for special education under Emotional Disturbance, and under Other Health Impairment due to his ADHD. The delinquency court found minor incompetentto standtrial at a competency hearing held on March 19, 2013. Probation and the Department of Mental Health (DMH) were ordered to evaluate minor and submit a report by April 10, 2013, with recommendationsfor treatment, and an assessment of whether minor waslikely to gain competence in the foreseeable future. Minor remained detained. Probation reported on April 10, 2013, that Probation and DMHwere unable to collaborate on appropriate treatment or services for minor because there was no protocol or procedure for completing the report the court had ordered. Probation recommended minor’s referral to the Regional Center for evaluation. The report also stated that according to minor’s mother and maternal aunt, “minor has not been forthcoming with providing accurate information during his psychological assessments. Further, both mother and maternal aunt have advisedthis officer that they feel the minor may have ee been misleading the psychologists; so that his charges would be ‘dropped.’” The competency planning hearing was continued to April 17, 2013. Probation and DMHwereagain directed to evaluate minor and submit a joint report to the court with their recommendations for his treatment. Probation was ordered to prepare an Incompetent to Stand Trial planning report and refer minor to the Regional Center if appropriate. Minor remained detained, over the objection of his counsel, who argued that the least restrictive setting was in the home. Probation filed a report on April 17, 2013, stating that minor would bereferred to Creative Support US Services (Creative Support) for 20 hours of competencytraining, to occur once a week while minor wasdetained. Creative Support would administer an assessmenttest onits first visit, and submit a written report after training was completed. The probation report recommendedthat the hearing be continued to June 1, 2013, to assess the status of minor’s competency attainmentservices. The court granted Probation’s request to transfer minor from Sylmar Juvenile Hall to Central Juvenile Hall, because competencyservices could not be provided at Sylmar. Accordingto a probation report filed on May 23, 2013, the probation officer had been in contact with Nicco Gipson of Creative Support in regards to minor’s competency training. Minor was to meet with Gipson weekly, for an hour and a half. Minor had completed two competencytraining sessions, but it was too soon to evaluate his progress. Probation recommendedthat the matter be continued for one month so that minor could continue with competencytraining. At the May 23, 2013 hearing, minor’s counsel renewed her objection to minor’s detention on the basis that, under the Protocol, the case should be dismissed if minor could not attain competency within 60 days. Counsel argued that minor had not been placed in theleastrestrictive setting, and that the training he was receiving was ineffective. The court reviewed the history of the case and determinedthat it was reasonable for minor to be detained while receiving competency services for another month in light of public safety concerns. Probation was directed to provide a continued assessment of whether minor could gain competencyin the foreseeable future and if a less restrictive setting would be appropriate while he receivedtraining. OnJune 20, 2013, Probation filed a report stating that Gipson planned to administer an assessmenttest to minor on June 19, 2013, to measure his progress. Gipson noted that minor had missed twotraining sessions, due to a dental appointment and a court appearance. Gipson would provide Probation with the test results. The June 20, 2013 hearing was continued for one monthfor receipt of Creative Support’s report regarding minor’s progress. A report from Creative Support was attached to a July 17, 2013 probation report. It advised that minor commenced competencytraining services on May 9, 2013. Minor wastested on thefirst day of training, and again, on June 19, 2013. The Competency Assessment Instrument used to assess minor contained 14 domains, scored from | to 4, with 1 equaling clearly incompetent, 2 equaling borderline incompetent, 3 equaling borderline competent, and 4 equaling clearly competent. Minor scored a 1 in all 14 domainson bothtests. According to the test standards he was incompetentto standtrial. Minor’s counsel renewed her objection to minor remaining in custody, and requested the reappointment of the competency expert to evaluate whether minor was making progress towardsattaining competency. The court denied the appointment motion as premature and ordered continuation of services and detention. On August 15, 2013, Probation filed a report attaching a Creative Support report. Minorhad beentested again on July 31, 2013, and received scores of | in all 14 domains of the Competency Assessment Instrument, meaning he was not competentto standtrial underthe standard. Probation recommended continuing the hearing for two months to evaluate minor’s progress. Attachedto a probation report filed on September 18, 2013, was a report from Creative Support which included scores from competency assessments administered to P minor on July 31, 2013, and on September 11, 2013. On both tests, minor scored a 1 ona « scale of 1 to 4 on each of the 14 domains, leading to a conclusion that minor was not é 10 competent to stand trial. The probation report indicated that the Department had advised there were community-based vendors who provided competency training. However, minor was not currently a Regional Center client, and would need a referral to determine his eligibility. At a hearing on September18, 2013, the delinquency court stated that it had read the latest probation report, which appeared to be requesting a continuance of the matter, and requested that minorbe referred to the Regional Center for a determination as to his eligibility for services. Deputy County Counsel Scolari, who appearedat the hearing, stated that minor’s social worker had already madea referral to the Regional Center and that the evaluation assessment could take up to 90 days. Competency training could continue through the Regional Center, provided that minor metthe criteria for the Regional Center. Minor’s counsel informed the court that she hadfiled a petition for writ of habeas corpus with this appellate court on September 10, 2013, seeking minor’s release from custody, based on a violation of the Protocol. Minor’s counsel representedthat after at least four tests, minor wasstill scoring all 1’s, which demonstrated that he was not progressing. Counsel argued that minor wasclearly incompetent, and that his continued detention wasillegal. She requested that the section 602 petitions be dismissed, based on a finding that minor wasnot substantially likely to obtain competency in the future. The prosecutor argued against minor’s release and against the dismissal of the petitions, noting that minor was facing serious charges, andthat it appeared the Department agreed that a level 14 placement wasbest for minor and the public. Minor’s counsel respondedthat detention in juvenile hall was not safe for minor, and requested he be placedin the least restrictive placement while receiving competencytraining. The delinquency court summarized in detail the proceedings up to that point, and continued the matter for another hearing on October 16, 2013. The court noted that it wasstill within the 12-month period for attaining competency that was referenced in Dr. Kambam’s original report. The continuance request was reasonable, as minor was 11 continuing to receive competencytraining. The court ordered Probation to provide information at that time as to the status of minor’s evaluation by the Regional Center, as well as progress towardstransferring minor to a closed level 14 placement. On October 16, 2013, Probation filed a report advising minor wastested by Creative Support on October 2, 2013, and scoredall 1’s in each ofthe 14 domains, leading to the conclusion that he was not competentto stand trial. At a hearing on October 16, 2013, the delinquency court expressed concern that the report from Creative Support containedessentially the sameinformation as the previous month’s report, and that the progress reports did not contain any description ofthe training being provided, or information that the testing was capableofpreventing malingering. The court was inclined to appoint an expert to evaluate minor’s competency. The prosecutor agreed with this suggestion, noting her concern that minor was “malingering and mayinfact actually be competent and completely aware of what’s going on.” Minor’s counsel stated that minor continuedto receivefailing test scores on his competency assessments, showingthatthere had been noprogress toward attainment of competency. The delinquency court suggestedthat the author of the Creative Support report, Amy Wilcox, be ordered to appear at the next hearing to answer questions about the tests and services being provided to minor. Minor’s counsel renewed her objection to minor’s custody, arguing that minor wasnotlikely to attain competencyin the foreseeable future and the petitions should be dismissed. Counsel also renewedher request to have Dr. Kambam appointed to reevaluate minor. The delinquency court denied the request to have Dr. Kambam reappointed, choosing instead to appoint the next expert on the list to evaluate minor. The court ordered Wilcox from Creative Support Services to appear at the next hearing on November12, 2013. ee = Sp e.12 s a e Testimony and Reports Leading to the Court’s Determination that Minor was Competent At the hearing on November 12, 2013, Wilcox, who scored minor’s tests for Creative Support, produced minor’s most recent test, showing that he answered, “I don’t know”to every question, which wasthebasis for his scores of 1. Wilcox verified that the Competency Assessment Instrumentcould not control for malingering. All Creative Support could do was “give the test, provide the training; and that would be the forensic psychiatrist that would determine that if there were any malingering.” Dr. Cory Knapke filed a report after evaluating minor, concluding that minor was incompetentto standtrial, basing the finding on minor’s lack of maturity and understanding of courtroom proceedings. The prosecutor expressed concern that minor was malingering, and the matter wasset for an attainment of competency hearing. An attainment of competency hearing washeld on February 4, 2014. Competencytrainer Gipson and Dr. Knapketestified. Gipson worked as a competencytrainer for Creative Support with seven years of experience. She trained minor for about eight months in weekly sessions of an hour and a half, following a competency manual, which contained 14 different domains of competency material. She and minor went over the materials in the manual and discussed the information, then administered mini-tests to assess minor’s understanding. His performance on the tests varied. He would appear to understand the information during one session, but the next week he might forget and they would needto review. Competency wasscored on a scale of 1-4, with | being the lowest score. A 3 or 4 in all domains was a passing score. Gipson knew minor had scored more than a | at some point but could not recall when, or how often. Minorhadattained a passing score on some domains, but then later failed the same domains. Gipson believed that minor may have scored as high as a 4 in some domains, but she could not be absolutely certain. Minorwasable to respond to questions and appeared to understand the conversation. 13 Gipson spoke to minor about topics unrelated to competencytraining. She had no issues communicating with minor, who wasfriendly and usually calm. The court questioned Gipson regarding minor’s test scores that had been provided to the court on November12, 2013, which showed scoresof | in all domains, and in which minor uniformly answered “I don’t know”to questions. Gipsontestified that minor had beentested since then in early January, although the test had not been officially scored. She had the test with her. The test result was admitted into evidence without objection. Gipsontestified that minor was able to answer many more questions now than in the past and was making good progress. The court asked if minor would receive a better score on the current test. Gipson replied, “Where you see the pluses on here it’s just as I went through the plus meansthat he will get a three or better, which meansthat it would be a pass on that particular question.” When asked by minor’s counsel, Gipson confirmed that minor would haveto passall 14 domains to be considered competent, and that he did not pass all 14 domains on the Januarytest. Dr. Knapke evaluated minor in November 2013, three months beforehetestified at the hearing. He determined that minor was not mentally retarded or developmentally disabled, and minor did not suffer from hallucinations or delusions. Minor did not exhibit any signs ofADHD. Minorwasnotentirely truthful during the interview, specifically with regard to frequency of drug and alcoholuse, gangaffiliation, and weapons possession. Dr. Knapke determined that minor wasableto rationally cooperate with his attorney, but he was concerned about minor’s understanding of basic courtroom proceedings based on minor’s poor school performance and grades. He elaborated: “As aresult other psychologists and psychiatrists have also evaluated him andfelt that he had problemswith his thinking with his ability to reiterate basic courtroom proceedings when asked about courtroom proceedings, and during my examination when I asked him similar questions he responded I don’t know to everything. He was unable to give me the namesof any pleas. He was unable to differentiate between the adversarial roles of the 14 district attorney verses [sic] a public defender. He was unableto explain what a judge does in the courtroom. He wasunable to basically explain anything about courtroom proceedings, and becauseof his lack of education primarily due to his disruptive behaviorsin the past, in other words being truant from school, being constantly absent from classes, being extremely disruptive in his classroomsand being aggressivein his classroom settings, he was unable to learn appropriately and his academicskills and understanding completely fell behind his peers. However, his IQ has been determined to be normal. So in my opinion his lack of understanding of courtroom proceedings and his lack of individualskills, if you will, is not due to lack of potential; in other words, he’s not developmentally disabled but rather his problems with understanding,his lack of effort, and behavioral problemsthat have resultedin his inability to learn basic concepts.” Dr. Knapke could not rule out the possibility that minor was exaggerating his lack of understanding of courtroom proceedings. He would expect a juvenile of minor’s intelligence level to have attained competency or have been able to demonstrate a basic understanding of courtroom proceedingsafter eight to nine months of competency training. Whenasked if minor “should have attained competency by now,” Dr. Knapke said, “Yes. He’s not mentally retarded. He—he has normalintelligence. There’s no psychiatric reason from my point of view that he is unable to learn basic courtroom proceedings, especially after eight months of competencytraining.” Dr. Knapke considered eight months of competencytraining to be “a lot of competencytraining.” When Dr. Knapke asked minor why he wasin custody, minor avoided the question and spoke about abuse issues with his mother and grandmother. This was one of the reasons leading Dr. Knapketo opineat the time of his examination that minor was incompetentto stand trial, since minor was unable to state what he was charged with or to provide any information about courtroom proceedings. Minor seemed unsophisticated and “child-like” during the interview, but Dr. Knapke could notrule outthe possibility that he was exaggerating his lack of understanding of basic concepts, including spelling and other questions addressing cognitive functions. 15 During cross-examination by minor’s counsel, Dr. Knapketestified that “. . . I’ve been observing yourclient through the—through the day today, he’s been appropriate in terms of courtroom, of—in terms of his courtroom demeanorhe’s been whispering to you as he’s been listening to witnesses,listening attentively to witnesses. So he’s been assisting you with—with his defense... .” Minor’s counsel asked Dr. Knapke if he discussed possible scenarios involving plea bargains. Dr. Knapke responded,“No, because once I began asking him about courtroom proceedings his response to almost every single question was I don’t know. It wasclear to me that he was not going to explain in any detail whatsoever any further information about courtroom proceedings. And keep in mind I wassufficiently concerned abouthis lack of understanding of courtroom proceedingsat the time of my evaluation to opine in my report that I did not believe that he was competent, and I believed it was reasonableat that point in time that he continue with competencytraining. However, it was only based on his lack of understanding of courtroom proceedings,orat least that was my objective observations, I could not rule out the possibility, however, that he might have been exaggerating some lack of understanding regarding that.” Dr. Knapke wentontotestify that, “Based on whatI heard today from the Creative Support person I think that there is a very highlikelihood that he not only can attain competency,but I think it’s pretty probably likely that he does understand basic courtroom proceedings.” In order to provide a “very definitive” opinion as to minor’s present competency, he would need to reexamine minor. He noted “that there is substantial likelihood that he indeed has a basic understanding of courtroom proceedings at this point.” The delinquency court made a detailed ruling on the record: “In considering the information that the court has received thus far, particularly there being no evidence of any mentalretardation, no evidence of any developmental disability, no evidence of mental illness, evidence that the minor possessing [sic] a normalIQ,that he has the probability of understanding, and it appears that if there has 16 been any expressed misunderstandingit’s been dueto lack ofeffort or those behaviors that have been exhibited by the minor that have been described both in Dr. Cambam’s [sic] report as well as Dr. Knapke’s report. And in considering those responses contained within the January 30, 2014, revised competency assessmentinstrument, whichI think the record should reflect is the sametest that was presented by Ms. Wilcox back in Novemberwhereall of the responses were I don’t know. I think it should also be stated for the record that the reason why Ms. Wilcox cameinto the court with the sametest with the repetitive responses of I don’t know wasbecauseofthe court’s concern of receiving prior to November2013 multiple reports from Creative Solutions[sic] indicating that the minor had scoredall ones and becauseofthat was incompetent. The court did not have information at that time as to what the scoring was based upon,nor did the court have any information with respect to the type of training probation had provided to the minor pursuantto the order the court made back in March of 2013. Ms. Wilcox did provide that information pursuantto the court’s request by showing the court a copy of the questionnaire which has now been marked as People’s 1, not the exact one questionnaire that Ms. Wilcox presented in November of 2013, but the same test format. The explanation at that time from Probation wasthat the minor had answered every question at that time with the response I don’t know, and becauseofthat that’s why reports have been submitted to the court that there was a consistent finding that the minor had not yet attained competency, had remained incompetent, and required further training. It was also at that time that the People raised concern based on information it had about malingering issues, and because of that Dr. Knapke was appointed to determine whether or not the issue of competency wasstill at issue and whether or not the minor was malingering, and I don’t believe that Dr. Knapke ever used the word malingering. I believe that Dr. Knapke’s word was exaggerated, that’s how he referencedit in the report that he prepared, and that’s what—that’s what hetestified to that he could not rule out the minor exaggerating his responses in order to delay these proceedings. 17 “Seeing no evidence in this court’s mind that would explain why the court—why the minor would repetitively state I don’t know to questions that it would appear to this court could be answered by the minor, particularly since there’s no evidence of mental retardation, there’s no evidence of developmental disability, there’s no evidence of mental illness, I do agree with Dr. Knapkethat there’s no reason why this minor has not yet attained competency. I did observe the minor during these proceedings and note that while I certainly could not hear what the minor was sayingto his attorney, there was[sic] several times whenhe did attemptto get his attorney’s attention and did converse with his attorney. He seemedto be engaged in hearing, he wasnotdistracted, his facial gestures appeared to respond within reason to someofthe testimony that was given both by Ms. Gipson and by Dr. Knapke. WhenI takeall of this evidence into consideration I find that there is overwhelming evidence to suggest that the minor has been exaggerating his responses, and that’s the only reason why he’s failed to give an accurate and forthright response to some of the questions that are contained within the questionnaire. “T find that the People have met their burden, I find that the minor hasattained competency and proceedingswill be reinstated effective today.”” Standard ofReview and Legal Principles Relating to Competency The federal and state constitutional rights to due process prohibit persons who are incompetent to standtrial to be subjected to a criminaltrial or a juvenile delinquency proceeding. (Jn re Christopher F. (2011) 194 Cal.App.4th 462, 468, disapproved on other grounds in R.V., supra, 61 Cal.4th at p. 199.) Pursuant to section 709, subdivision (a), a minor is incompetent“if he or she lacks sufficient present ability to consult with counsel andassist in preparing his or her defense with a reasonable degree of rational 7 The court’s ruling was madeprior to our Supreme Court’s decision holding that a minor claiming incompetencyhas the burden of proof. Un re R.V. (2015) 61 Cal.4th = 181, 193 (R.V.).) : 18 understanding, or lacks a rational as well as factual understanding,of the nature of the charges or proceedings against him orher.” The languagein section 709 is consistent with the standard adopted in Dusky v. United States (1960) 362 U.S. 402, 402 (Dusky). (See R.V., supra, at p. 188, quoting Dusky, supra, at p. 402 [the inquiry into a defendant’s competency . . . focuses on whether the defendant ‘““has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding— and... a rational as well as factual understanding of the proceedings against him”’”].) Although adults may be declared incompetent on the basis of mental disorder or developmental disability only, juvenile incompetence also encompasses developmental immaturity, in light of the fact that minors’ brainsare still developing. (Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 860-862.) “Thus, unlike an adult, a minor does not need to showthat his or her inability to understandorassist arises ‘as a result of mental disorder or developmental disability.’” (Bryan E. v. Superior Court (2014) 231 Cal.App.4th 385, 391 (Bryan E.), citing In re John Z. (2014) 223 Cal.App.4th 1046, 1053.) Our Supreme Court has recently interpreted section 709 to include a presumption of competency, and the party claiming incompetency bears the burden of proof by a preponderanceofthe evidence. (R.V., supra, 61 Cal.4th at p. 193.) In reviewing a finding of competency, we view the record in the light most favorable to the verdict and uphold the verdict if it is supported by substantial evidence. (/d. at pp. 198-200.) “A juvenile court’s determination regarding competency. . . involve[s] an ‘individual- specific decision’that is ‘unlikely to have precedential value.’ [Citation.] Guided by the ... well-settled legal definition of competency, .. . the juvenile court .. . draw[s] [its] Se S H A R C conclusions based on an appraisal of the particular expert testimony by mental health professionals, courtroom observations, and other testimonial and documentary evidence then before the court in the case.” (/d. at pp. 199-200.) “[A] juvenile court’s determination regarding competency, even if made in the absence of an evidentiary 19 e t y a p r o n a e 3 hearing, may be informed by the court’s own observations of the minor’s conduct in the courtroom generally, a vantage point deserving of deference on appeal.” (Jd. at p. 199.) “Evenifthe prosecution presents no evidence of competency, a juvenile court can properly determine that the minor is competent by reasonably rejecting the expert’s opinion. This court has long observedthat ‘“[t]he chief value of an expert’s testimonyin this field, as in all other fields, rests upon the material from which his opinionis fashioned and the reasoning by whichhe progresses from his materialto his 3995conclusion.”’ [Citation.] In a case suchas this one, therefore, the inquiry on appealis whether the weight and character of the evidence of incompetency was such that the juvenile court could not reasonably reject it. [Citation.]” (R.V., supra, 61 Cal.4th at pp. 200-201.) Compliance with the Standards ofIncompetence to Stand Trial Minorarguesthe ruling of the delinquency court that minor attained competency to stand trial was improperfor three reasons. First, he argues the court erred in finding competency despite the report of Dr. Knapke that minor did not understandthe nature of the proceedings. Second, he contendsthe court did not comply with the standard required by Dusky, supra, 362 U.S. 402. Third, he argues the court held him to the standard of competence applicable to adults, rather than the broader standard applied to juveniles. We disagree with minor’s contentions. Asserted Rejection of Dr. Knapke’s Conclusions Wereject the argumentthat the court erred in finding minor competentafter Dr. Knapke expressed contrary opinionsin his written report and in his testimony. Minor overstates the situation. Dr. Knapke’s written report was prepared approximately three months before the hearing, at a time when he did not know that minor had given rote 20 : : ee cmzs answers of “I don’t know” to Gipson’s questions on courtroom procedures, despite minor having received monthsoftraining. Although Dr. Knapkeopined initially that minor was incompetent because he did not understand the nature of the proceedings, by the end of the hearing he had concluded there wasa “substantial likelihood” that minor had a basic understanding of courtroom proceedings. A review ofthe entire record reveals that the court did not entirely reject the opinions expressed by Dr. Knapke; to the contrary, the court acceptedhis finding on minor’s lack of mental disease, the opinion that minor should have progressed toward competence with over eight monthsoftraining, and the doctor’s current belief based on his in-court observations that minor was capable of understanding the nature of the proceedings. Asour Supreme Court has madeclear, a trial court is not bound by an expert opinion that a minor is incompetentto stand trial. (R.V., supra, 61 Cal.4th at pp. 200- 201.) The delinquency court considered the basis for the expert’s opinion, whichin this case was underminedby the observations by both the doctor and the court of minor participating competently in court. Thetrial court could reasonably reject Dr. Knapke’s opinion on incompetence based on “the weight and character of the evidence of incompetency.” (R.V., supra, at p. 203.) Based on thetotality of the evidence before the court, the court fairly concluded there was overwhelming evidence that minor “exaggerated” his answers to his own benefit—a polite way ofstating he was feigning incompetence, just as minor’s mother and grandmother had suggested early in the proceedings. Compliance with the Dusky Standard The inquiry under Dusky focuses on two elements: (1) the present ability to consult with a lawyer with a reasonable degree of rational understanding; and (2) a rational and factual understanding of the proceedings against him. (Dusky, supra, 362 US.at p. 402; R.V., supra, 61 Cal.4th at p. 188.) The first Dusky elementis not in issue, 21 as Dr. Knapke’s testimony that minor wasable to rationally cooperate with counsel constitutes substantial evidence. The remaining issue is the second prong of competency—whether minor understood the nature of the proceedings. Our review ofthe delinquency court’s thorough and thoughtful analysis demonstrates that the court correctly applied the Dusky standard. The delinquency court noted in her ruling that there was no evidenceto explain why minor would repeatedly state, “I don’t know”to questions regarding courtroom procedures, “particularly since there’s no evidence of mental retardation, there’s no evidence of developmental disability, there’s no evidence of mental illness ....” The court accepted Dr. Knapke’s testimony that there was no reason whythis minorhas not yet attained competency. Most importantly on this issue, both the court and Dr. Knapke observed that minor was engagedin the proceedings, andthere is no hint in the record that he did not understand what wastaking place at the attainment of competency hearing. The court pointed out that minor several times during the hearing attemptedto get the attention of his counsel and conversed with his attorney. The court described minor as “engaged” and pointed out that he was not distracted and madefacial gestures that appeared to respond within reason to portions of the testimony by Gipson and Dr. Knapke. In the end, the court concluded, “[T]here is overwhelming evidenceto suggest that the minor has been exaggerating his responses, and that’s the only reason whyhe’s failed to give an accurate and forthright response to some of the questions that are contained within the questionnaire.” In other words, the court concluded that minor, with an average IQ and no mental disease or defect, did understand courtroom procedures and had feigned incompetence to manipulate the system to his own benefit. (See R.V., supra, 61 Cal.4th at p. 199 [juvenile court may rely on its own observations in finding competency, even in the absence of an evidentiary hearing].) The court’s conclusionis consistent with Dr. Knapke’s testimonythat, after hearing the testimony from Gipson, “I 22 think that there is a very high likelihoodthat he not only can attain competency, but I think it’s pretty probably likely that he does understand basic courtroom proceedings,” and “that there is substantial likelihood that he indeed has a basic understanding of courtroom proceedingsat this point.” Misapplication of the Adult Standard of Competence Minorcontendsthat the court held him to an adult competencystandard, disregarding his developmental immaturity as a legal cause of incompetence. He primarily relies on the court’s statements that minor had no mental disorder or developmental disability that would prevent him from attaining competency. His interpretation of the court’s statementis too limited. Mental disorder and developmental disability are two of the bases for juvenile incompetency. The court understandably ruled out these basesas part of its decision. The court did not stop there, however, or state that those were the only bases for minor’s incompetency. The court noted evidencethat minor possessed “a normalIQ,that he has the probability of understanding,” and observed that “[minor] seemed to be engaged in hearing, he was not distracted, his facial gestures appeared to respond within reason to someofthe testimony that was given... .” The court concludedthat “[s]eeing no evidencein this court’s mind that would explain why . . . the minor would repetitively state I don’t know to questions that it would appear to this court could be answered by the minor. . . I do agree with Dr. Knapkethat there’s no reason why this minor hasnot yet attained competency.” The court did not limit the possible causes of incompetency to mental disorder and developmental disability. The court applied the correct standard for assessing juvenile competency to determine that minor possessed the necessary mentalability to standtrial. 23 Ee ame ap y Due Process Violation Based on Prolonged Detention Minorcontendsthat his detention for 294 days while receiving servicesto attain competencyviolated his right to due process of law. His due process claim has two elements. First, minor argues the length of his detention did not comply with the standards for due process set forth by the United States Supreme Court in Jacksonv. Indiana (1972) 406 U.S. 715, 738-739 (Jackson) and the California Supreme Court in Jn re Davis (1973) 8 Cal.3d 798, 801 (Davis). Second, he argues that detention beyond 120 days presumptively violated due process based on the Protocol issued by the Presiding Judge of the Juvenile Court in Los Angeles. (See /n re Jesus G. (2013) 218 Cal.App.4th 157 Jesus G.).) Both argumentsfail. Compliance with Jackson and Davis The defendant in Jackson was“a mentally defective deaf mute with a mental level of a pre-school child” who was charged with two robberies, involving items totaling $5 or less in value. (Jackson, supra, 406 U.S. at p. 717.) Two psychiatrists opined that Jackson was incompetentto standtrial and there was an extremely low possibility of Jackson regaining competency. Onepsychiatrist stated that it was unlikely Jackson could learn to read or write, and questioned whether he was even able to communicate with the interpreter in sign language. The otherstated that Jackson would be incompetent even if he were not deaf and mute. (/d. at pp. 718-719.) He washeld in a state mental facility pending a determination as to whether he was “sane.” (/d. at p. 719.) The State of Indiana did not havefacilities that could assist Jackson in attaining competenceand there was no evidence that Jackson could not receive adequate care at homeor that he otherwise required custodial care. (/d. at p. 728.) Indiana law did not provide for & periodic review of the defendant’s condition by the court or mental health authorities, nor 24 5 did it accord the defendantanyright to counsel at the competency hearing. (Jd. at pp. 720-721.) The Supreme Court held that “a person charged by a State with a criminal offense who is committed solely on accountofhis incapacity to proceedto trial cannot be held more than the reasonable period of time necessary to determine whetherthereis a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State musteither institute the customarycivil commitment proceeding that would be required to commit indefinitely any othercitizen, or release the defendant. Furthermore, evenifit is determined that the defendant probably soon will be able to standtrial, his continued commitment must be justified by progress toward that goal.” (Jackson, supra, 406 U.S.at p. 738, fn. omitted.) The Supreme Court declined to quantify a reasonable period oftime, “[i]n light of differing state facilities and procedures and a lack of evidence in this record, we do not think it appropriate for us to attempt to prescribe arbitrary time limits.” (/bid.) It noted that “Jackson [had] been confined for three and one-half years on a record that sufficiently establishe[d] the lack of a substantial probability that he w[ould] ever be able to participate fully in a trial.” Ud. at pp. 738-739.) In Davis, three accused misdemeanants were found incompetentto standtrial. (Davis, supra, 8 Cal.3d at pp. 802-803.) They petitioned for habeas corpusrelief after they had been held in a state hospital for several months without a determination as to whether they werelikely to regain their competence. (/d. at p. 806.) The Davis court complied with the rule in Jackson by holding that “no person charged with a criminal offense and committed to a state hospital solely on accountof his incapacity to proceed to trial may be so confined more than a reasonable period of time necessary to determine whetherthere is a substantial likelihood that he will recover that capacity in the foreseeable future. Unless such a showing of probable recovery is made within this period, defendant musteither be released or recommitted under alternative commitment procedures.” (/d. at p. 801.) 25 S S R The Davis court stated that “[w]ith respect to future commitments, we think that in order to comply with Jackson’s demandsthe trial courts should henceforth direct the appropriate state hospital authorities to commence an immediate examination of the person committed and, within a reasonable time, report to the court the result of that examination and estimate the additional time probably necessaryto restore the person to competence. Should the person committed desire to challenge the report’s conclusions, reasonable opportunity should be provided him to do so.” (Davis, supra, 8 Cal.3d at p. 806, fns. omitted.) The three Davis petitioners had neither established that they were competentto standtrial nor that they were likely to be, and there was nothing in the record to support the conclusion that they were unlikely to respond to treatment. (/bid.) Instead of ordering the petitioners released, the Davis court ordered hospital authorities to report without delay on whetherpetitioners were likely to attain competency in the foreseeable future. (/bid.) Minorhasnot established a due process violation under Jackson and Davis. Unlike the defendant in Jackson, who suffered from multiple disabilities and was unlikely to ever attain competence, minor’s incompetence was founded on emotional immaturity, which according to Dr. Kambam,could be remedied within 12 months. In this respect, minor’s circumstances are in no way comparable to the defendantin Jackson, considering that Dr. Kambam expressed the opinion that minor had no mental illness, disease, or developmental disability. Minor had no insurmountable mental issues, he had an average IQ, had passing grades whenhe attended school on a regular basis, and incompetence was based on emotional immaturity. Under these circumstances, we hold that 12 months to attain competency was constitutionally reasonable. It bears emphasis that minor wasassisted by counsel throughout the proceedings. The delinquency and dependency courts worked together to place minor outside of juvenile hall in a less restrictive facility, but were unsuccessful due to minor’s level of criminality and antisocial behavioras reflected in his numerousrule violations. Again, these circumstancesare not in any way comparable to what occurred in Jackson. 26 In compliance with Davis, once minor was declared incompetent, the delinquency court ordered servicesto assist minorin attaining competence. The court monitored the services and minor’s progress on a regular basis with reports. Creative Support essentially reported raw data; minor’s answersto the questions presented were accepted without consideration of whether he was making an honest effort or malingering. Because the nature of the reports did not assist the court in determining whether minor was making progress, or if not, what was causing the delay, the court appointed Dr. Knapke to update minor’s progress and current status, and scheduled a hearing to complete the record. Asit turned out, the reason minor remained detained for 294 days while receiving services was minor’s manipulation of the system. The circumstances of this case do not amount to a due processviolation. The length of detention in this case was the product of minor’s determination to avoid a finding of competency, as evidenced by his repeated answerof “I don’t know”to basic questions despite monthsoftraining, an average IQ, and no mental disease or defect. Violation of the Protocol Minorarguesthat his detention in juvenile hall beyond 120 days violated due process based on the Protocol, as interpreted in Jesus G., supra, 218 Cal.App.4th 157. Wereject the arguments for three reasons. First, the 120-day limit on detention in the Protocol lacks the force of law andit therefore does not define due process. Second, to the extent the Protocol purports to fix the maximum period of confinementat 120 days - while proceedings are suspended,it conflicts with the holding in Jackson and section e 709, both of which provide for a reasonable period of time, not a fixed numberof days, to 7 attain competence. Third, assuming there wasa violation of the Protocol or section 709, the error is harmless because, as we havealready concluded,the trial court provided minor with services to attain competency and the court’s ultimate conclusion that minor was competent is supported by substantial evidence. 27 The Protocol was drafted by the Presiding Judge of the Juvenile Court in Los Angeles. It sets forth a timeline for processing cases in which proceedings are suspended because of a minor’s incompetenceto stand trial, including the following: “‘The minor may not be held in ajuvenile hall to participate in attainmentservicesfor more than one hundred and twenty days.’” (Jesus G., supra, 218 Cal.App.4th at p. 162.) The Jesus G. court stated that the guidelines in the Protocol “are in line with the constitutional requirements of due processas set forth in Jackson and Davis inasmuchas they address the problem of an indefinite commitment and the necessity of making a prognosisas to the likelihood ofattaining competence.” (/d. at p. 171.) Without further discussion or explanation, the court concludedthat “[t]he Protocol complies with constitutional requirements. Asa result, a violation of the Protocol is presumptively a violation of constitutional rights.” (Ud. at p. 174.) Minorrelies on this final statement to support his argumentthat the court violated his due process rights by deviating from deadlines prescribed in the Protocol. Wehold that the Protocolis not entitled to the force of law, and the 120-day limit on detention does not define due process. The delinquency court in this case properly observed that the Protocol“is not law,” it is a set of guidelines, which a judgeis free to considerin his or her discretion. The Protocol is certainly a thoughtful andarticulate memorandum relating to the processing of delinquency cases involving competency issues, but it is not a local rule of court and was not issued pursuantto a legislative directive. (Compare § 241.1, subd. (e) [expressly directing the creation of a protocol by the juvenile court for dual jurisdiction delinquency/dependency minors].) A single judge, even a presiding judge, cannot determine how thelaw is to be applied by a co-equaltrial court, particularly on matters which necessarily require flexibility and the exercise of discretion. “One superior court judge has no powerto : require another to perform a judicial act... the presiding judge is merely one of equals who hasbeen given specific administrative powers, not including the right to administer the records of a coequal judge. [Citation.]” (Copley Press, Inc. v. Superior Court (1992) 28 S 6 Cal.App.4th 106, 116, fns. omitted.) “The immediate supervision and control of the activities of each trial court is clearly under the control ofthe judge of that court.” (Jbid., fn. omitted.) The Protocol’s limit of 120 days of detention while a minor receives services directed toward attaining competence provides a laudable goal, but this limit cannot be made binding on the co-equal membersofthe trial court. Flexibility is particularly necessary where the finding of incompetency is based on immaturity, rather than the existence of a mental disease defect, or developmental disability, because “[w]hat constitutes a reasonable length of time will vary with the context.” (/n re Mille (2010) 182 Cal.App.4th 635, 649; see Gilbert v. City ofSunnyvale (2005) 130 Cal.App.4th 1264, 1276, citing Morrissey v. Brewer (1972) 408 U.S. 471, 481 [“‘“due processis flexible and calls for such procedural protections based on the particular situation”””’].) Wedisagree with Jesus G.’s conclusion that a fixed 120-day limit on detention while receiving services executes the holdings in Jackson and Davis, and thatit establishes a presumptive due process violation. Jackson expressly declined to define a reasonable period oftime, recognizing that flexibility is necessary in this area. (Jackson, supra, 406 U.S. at p. 738.) The Protocol’s limit of 120 days of detention is also inconsistent with section 709, subdivision (c)’s commandthat “all proceedingsshall remain suspended for a period of time that is no longer than reasonably necessary to determine whetherthere is a substantial probability that the minorwill attain competency in the foreseeable future.” What period of time is reasonably necessary varies from case to case. Detention of more than 120 days while receiving services to attain competenceis not constitutionally unreasonable where(1) the minor has no mental disease or defect and has an average IQ, (2) an expert opines that the minor would be expected to regain competency within 12 months, (3) the minoris facing delinquencyallegations involving weapons and violence, and heis also a dependent child which makeslessrestrictive placementdifficult if not impossible, (4) the court carefully monitored minor’s progress, 29 S E H s o o n and (5) the possibility of malingering arose early in the proceedings based on statements by the minor’s mother and auntto the probation officer. Prejudice Assuming there was undue delay without evidence of progress towardattaining competency,or a violation of the Protocol or section 709, no structural error is involved. For the reasons that follow, any error was harmlessand reversal is therefore inappropriate. This appeal follows minor’s admissions to the section 602 petitions and the delinquency court’s disposition orders after proceedings werereinstituted. This procedural posture is important in establishing the standard of review. Errors “which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived ofa fair trial or otherwise suffered prejudice as a result of the error... . Theright to relief without any showingofprejudice will be limited to pretrial challenges of irregularities.” (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 (Pompa-Ortiz).) Pompa-Ortiz followed the approach taken in other contexts: “In People v. Wilson (1963) 60 Cal.2d 139, for example, we held that denial of defendant’s right to trial within a prescribed statutory time period wasnotreversible error on appeal in the absence of a showing of prejudice. If the issue is raised before trial, however, prejudice is presumed and the information is dismissed. (See also People v. Welch (1972) 8 Cal.3d 106, 113, and People v. Salas (1972) 7 Cal.3d 812, 818-819 [denial of motions to change venue]; also, People v. Chavez (1980) 26 Cal.3d 334, where error in refusing representation by attorney ofchoice, correctable onpretrial application (Harris v. Superior Court (1977) 19 Cal.3d 786), was held to compel reversal after judgment only upon a showing of prejudice).” (bid.) 30 o i g a g i i e R R A B E R The holding in Pompa-Ortiz is consistent with the Supreme Court’s view of the limited numberofstructural errors that are reversible per se. As recognized in People v. Anzalone(2013) 56 Cal.4th 545, 554-555, reversal for structural error has been limited to: “adjudication by a biased judge”; “the complete deprivation of counsel”; “the unlawful exclusion of grand jurors based on race”; “the infringementon therightto self- representation”; “the denial of a public trial”; “and the giving of a constitutionally deficient instruction on the reasonable doubt standard.” Trial error, which doesnotresult in a miscarriage ofjustice underarticle VI, section 13 of the California Constitution, does not merit reversal. (/d. at pp. 553-554.) The decision in People v. Leonard (2007) 40 Cal.4th 1370, 1387-1391 (Leonard) is particularly instructive. In Leonard,the trial court declared a doubt as to the defendant’s competenceto standtrial and appointed two psychiatrists to evaluate him. The court knew the defendant suffered from epilepsy, but did not appointthe director of the regional center for the developmentally disabled to examine defendant, as required by Penal Code section 1369, subdivision (a). This waserror, but not error of a jurisdictional nature “that necessarily requires reversal of any ensuing conviction.” (/d. at p. 1389.) The psychiatrists who did evaluate the defendant in Leonard were familiar with his developmental disability and consideredit in evaluating his competence, eliminating any prejudice that would otherwise result from a failure to refer the defendantto the regional center. In addition, the error did not implicate the defendant’s right to due process of law, because the “defendant’s competencytrial protected his right not to be tried or convicted while incompetent.” (/d. at p. 1391; see also People v. Stewart (2004) 33 Cal.4th 425, 461-462 [any prosecutorial misconductresulting from delayed discovery of é evidence during the preliminary hearing deemed non-prejudicial on appeal following conviction]; People v. Dunkle (2005) 36 Cal.4th 861, 907-910 [error in denial of the B B s defendant’s right to self-representation for a year during pretrial proceedings was cured = when the defendant subsequently waivedthis right and proceededto trial with counsel], : = disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; q : 31 e e e , People v. Wilson (1963) 60 Cal.2d 139, 150-154 [defendant must show prejudice from denial of speedytrial]; People v. Anderson (2015) 234 Cal.App.4th 1411, 1420-1421 [constitutionally ineffective assistance of counselat the preliminary hearing held non- prejudicial after trial with competent counsel]; Jn re Christopher F., supra, 194 Cal.App.4th at pp. 470-471, [failure to refer incompetent minorto the regionalcenteris not reversible error where the doctor performing the evaluation wasskilled in the diagnosis of developmental disabilities]; People v. Becerra (2008) 165 Cal.App.4th 1064, 1070-1071 [grand jury indictment obtained with perjured testimony held non-prejudicial whereprosecution at trial produced evidence from the witness admitting he hadlied to the grand jury and there was vigorous cross examination on the perjured testimony]; People v. Tena (2007) 156 Cal.App.4th 598, 612-615 [erroneous denial of defendant’s Faretta v. California (1975) 422 U.S. 806 requestat the preliminary hearing deemed harmless where defendant waivedthe right at trial and proceeded with counsel].) Minor has not made any showing ofactual prejudice due to the length of his detention in regard to his admissionto the petitions and the suitable placement disposition. Because the finding of competence is supported by substantial evidence, and minorcan pointto no actual prejudice resulting from the length of his detention, any error did not result in prejudice within the meaning of Article VI, section 13, of the California Constitution. Equal Protection Minorarguesthat the delinquency court violated his right to equal protection of the law by detaining him for more than 120 days pursuantto section 709 without the procedural protections that would be required for a civil commitment under the Lanterman-Petris-Short Act (LPS). (§ 5000 et seq.) We disagree. Minoris not similarly a situated to persons whofall under the LPS Act. 32 3 “A prerequisite to a meritorious [equal protection] claim is that individuals ‘similarly situated with respect to the legitimate purposeof the law receive like treatment.’ (Gary W. [(1971)] 25 Cal.3d 296, 303; accord, In re Lemanuel C. (2007) 41 Cal.4th 33, 47; Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [(Cooley)].) Where two or more groupsare properly distinguishable for purposes of the challenged law,it is immaterial if they are indistinguishable in other respects. (Cooley, supra, at p. 253.) Nor, absent this threshold requirement, is an equal protection inquiry into the justification for any legislative distinction necessary. (See Gary W.,[supra,] at pp. 304, 306.)” (People v. Barrett (2012) 54 Cal.4th 1081, 1107 (Barrett).) The LPS Act applies to persons with a “mental disorder” (§ 5200), “mental health disorder or impairment by chronic alcoholism”(§ 5250), or those who are “gravely disabled as a result of a mental health disorder or impairment by chronic alcoholism”(§ 5350). Under section 709, subdivision (b), a minor may be incompetentto standtrial if the minor “suffers from a mental disorder, developmentaldisability, developmental immaturity, or other condition.” (Italics added.) While minors in delinquency proceedings may be subject to both section 709 and the LPS Act in somecases, the laws have different purposes and apply to different mental states. (See Barnett, supra, 54 Cal.4th at p. 1109 [ the “mental conditions that create eligibility for an extended 180-day LPS Act commitment, though they include imminent dangerousness, do not necessarily imply incompetenceor a reducedability to understand, and make decisions about, the conduct of the proceedings”].) Here, minorcites to no basis for civil commitment proceedings against him. It is undisputed that he has no mental health disorder, he does not suffer from chronic alcoholism, nor is he gravelly disabled. Instead, minor was diagnosed with attention deficit issues and developmental immaturity. As an individual devoid of mental and developmental abnormalities that cause him to be dangerousto himself or others, minor is subject only to section 709, not to the LPS Act. His equal protection argument 33 R O e R ? > necessarily fails, because minoris not similarly situated to persons who fall under the LPS Act. Contrary to minor’s argument, Jackson, supra, 406 U.S. at page 721, does not require a different result. The equal protection violation in Jackson was the product of the defendant’s indefinite detention while facing a criminal charge with no provision for periodic review, no right to counsel at the competency hearing, and norealistic possibility that Jackson would ever attain competency. Jackson was subject to “a more lenient commitmentstandard and to a morestringent standard of release than those generally applicable to all others not charged with offenses ....” (Ud. at 730.) The Jackson court held that subjecting Jackson to indefinite confinement without any ofthe procedural protections that persons who have not been charged with crimes are afforded prior to being institutionalized wasa violation of his right to equal protection of the laws. (Ud. at pp. 728-730.) The differences between Jackson and minor’s situation are apparent. Unlike the defendant in Jackson, minor had no mental disease or defect, he was expectedto attain competency within 12 months, and he wasprovided counsel and regular reviewsofhis progress. The suspension of proceedings under section 709 waslimited to the time reasonably necessary to attain competency. Moreover, minor was a dependentchild under section 300, already under the jurisdiction of the juvenile court, and judicial officers made diligent but unsuccessful attempts to place minor outside ofjuvenile hall. Here, minor wasnotsimilarly situated to persons whofall under the LPS Act, and was also afforded procedural protections not present in Jackson. His equal protection rights were not violated. Right to Confront Witnesses Minor next arguesthat the court violated his constitutional right to confront witnesses by considering the hearsay statements of a Deputy County Counsel Scolari on 34 behalf the Department, a non-party, at his attainment of competency hearing. Weset forth the backgroundfor this contention below. In a hearing on October 16, 2013, the court expressed concern that minor was consistently scoring 1’s in all 14 domains of every test administered by Creative Services. Thecourt stated,“At this time I have no way of knowing whetheror notthese tests are capable of preventing any malingering issues on the part of any minorthatthesetests are administered to . . . the court is inclined to appoint the next expert in line . . . for re- evaluation of the minor’s competency.” The prosecutor agreed that appointmentof an expert for reevaluation would be useful, stating that she was also concerned that minor wasnot showing progress in his competency training due to malingering. Later in the ! hearing, minor’s counsel inquired regarding the source of the prosecutor’s belief that | minor was malingering. The prosecutor identified Deputy County Counsel Scolari as the li source of the information. With respect to his suspicions that minor was malingering, Scolari explained, “I believe that a couple transcripts have been ordered from two different dependency hearings where [minor] and [the dependency court judge] had discussions that some believe would showthis court that he’s very aware of what’s happening.” The delinquency court thanked Scolari and asked him to provide copies of those transcripts to the court and counsel, as well as the expert who would be appointed to evaluate minor. Minor’s counsel made no objection at that time. The record does not indicate that the transcripts were lodged. The court appointed an expert to reevaluate minor’s competency. At a hearing on January 13, 2014, Scolari stated his opinion that minorfully understood the dependency proceedings, informing the court that he believed minor - “knows more than I think he’s letting on. I know in my conversations with the supervisor and the social worker on this case who had frequent phonecontact with [minor] they have never had any indication whatsoever that he wasn’t completely aware of what’s going on in his dependencycase as well as his delinquency case.” The court later asked Scolari whether it was the Department’s position that minor was malingering. Scolari 35 responded, “Again, talking to the supervisor and the social worker, we’ve had numerous conversations over the past year with [minor], and they have—andI have alsotalked to the county counsel ... in his dependencycase . . . and all three of them believe that [minor] clearly understands what is happening in both courtrooms. He .. . discusses the issues with the dependency judgeat length and in the conversationsthat they have had with him he also seemsto be on top of what’s going on. He knowsexactly what his situation is and they think he’s—theythink [minor]is intelligent and they think he understands whathe’s doing.” The court responded, “Andyou stated this position several times overasthis is not the first appearance that you have made on behalfof [the Department]; is that correct?” Scolari replied: “True. It’s always been their opinion that [minor] knows exactly what’s happening.” Minor’s counsel objected to Scolari’s participation, because he wasnot a party to the delinquency proceedings, and also objected to Scolari receiving a copy of Dr. Knapke’s report regarding minor’s competency. The court invited the parties to submit points and authorities on the issue of whether the Department should be joined in the delinquency proceedings. Minor’s counsel filed a Memorandum of Points and Authorities. The record does not contain a memorandum from county counselor a ruling by the delinquency court. Wereject minor’s contention that that consideration of Scolari’s statements violated the Confrontation Clause. First, minor made no confrontation clause objection in the court below. Theissue is therefore forfeited. (People v. Redd (2010) 48 Cal.4th 691, 730.) A timely objection would have allowed the court to easily cure any purported violation of the right to confrontation bythe calling of witnesses.® Second, the contention fails on the merits. The right to confrontationisa trial right. (People v. Miranda (2000) 23 Cal.4th 340, 350, citing Whitman v. Superior Court 8 Wealsoreject minor’s contentionthat the court committed judicial misconduct by allowing Scolari to participate in the proceeding. No objection was madeonthis e ground below, nor do we see any merit to the contention. (People v. McWhorter (2009) e 47 Cal.4th 318, 373; People v. Snow (2003) 30 Cal.4th 43, 77-78.) a 36 5 (1991) 54 Cal.3d 1063, 1079.) Consideration, if any, by the delinquency court of a statement by counsel for the Department does not implicate the right to confrontation. Third, minor did notsuffer any prejudice as a result of the statements in dispute. The delinquency court fully explained on the record the basis for its finding that minor was competentto stand trial. The ruling makes no mention ofthe statements of Scolari, and it is clear that the court ruled based on the testimony presented andits own observations of minorat the attainment of competency hearing. Error in allowing Scolari to state the Department’s position, if any, did not result in prejudice to minor. Other Contentions Minorarguesthat the delinquency court lacked jurisdiction to order a new competency evaluation and hold an attainment of competency hearing while proceedings were suspended. According to the contention, neither section 709 nor the Protocollists the authority to make such orders amongthe actions the court may take while proceedings are suspended. Wedisagree, as the procedures followed wereentirely appropriate and necessary in order to determine if minor had attained competency. It is unclear how minor would suggest that the delinquency court determine whether competencyhas been attained other than through a new competencyevaluation and a hearing on the subject. If the delinquency court lacks the powerto engagein these acts, there will be no meansto effectively reinstate proceedings once competencyis attained. Both the Protocol and section 709, subdivision (c) provide that while proceedings are suspended, “the court may make orders that it deems appropriate for services . . . that ee may assist the minorin attaining competency. Further, the court may rule on motions that do not require the participation of the minor in the preparation of the motions.” While the Protocol is not a statement of law, to the extent minorrelies upon it we note that it specifically provides that “[m]inor’s counselor the district attorney may request a 37 further [Juvenile Competencyto StandTrial Panel} evaluation or a full evidentiary hearing.” Here, minor’s counsel requested a new evaluation several times, and the prosecutor requested an evidentiary hearing. The purposeof section 709 is to ensure that mentally incompetent minors are not subjected to juvenile delinquency proceedings, and to restore minors to competencyas quickly as possible. With that objective in mind, “section 709 clearly intend[s] . . . the reports and/or testimony of experts who have evaluated the defendant for legal competency”to be the center of such a determination. (dn re John Z., supra, 223 Cal.App.4th at p. 1058.) It is unreasonable to interpret section 709 as precluding the appointmentof experts to determine current competency, whenthe task of the court is to minimize the length of time proceedings are suspended. Reconsideration of minor’s competency was not error, and certainly was noterror that can be describedas structural. Minoralso argues the court acted in excess ofjurisdiction because his detention was prolonged without evidence of progress toward attaining competency. We have previously rejected this contention in discussing minor’s due process claims. Ourearlier discussion disposesof this issue. Probation Conditions Probation condition No. 9 provides: “You must go to school each day. You must be on time to each class. You must have good behavior at school. You must receive satisfactory grades.” Minor contendsthat he is incapable of complying with condition No. 9 due to his educational deficiencies, and that the terms “satisfactory grades” and “good behavior at school” are unconstitutionally vague. 38 Relevant Law A delinquency court “may impose and require any andall reasonable conditions that it may determinefitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” (§ 730, subd. (b).) “A [delinquency] court enjoys broad discretion to fashion conditions of probation for the purpose ofrehabilitation and may even imposea condition of probation that would be unconstitutional or otherwise improperso longasit is tailored to specifically meet the needs of the juvenile. [Citation.] That discretion will not be disturbed in the absence of manifest abuse. [Citation.]” (re Josh W. (1997) 55 Cal.App.4th 1, 5.) Minorfailed to present his claim that the probation condition is invalid because he lacks the capability to comply to the delinquency court, and he has notpresentedthis court with a factual record. However,his challenge to condition No. 9 on vagueness grounds may be addressed on appeal becauseit presents a “‘pure question[] of law that can be resolved without reference to the particular sentencing record developedin the trial court.’” (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) “A probation condition ‘must be sufficiently precise for the probationer to know whatis required of him, and for the court to determine whetherthe condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. (People v. Reinertson (1986) 178 Cal.App.3d [320,] 324-325.)” (Sheena K., supra, 40 Cal.4th at p. 890.) “*“It is an essential componentof due processthat individuals be given fair notice of those acts which maylead to loss of liberty. [Citations.] This is true whether the loss ofliberty arises from a criminal conviction or the revocation of probation. [Citations.] [§]] ‘Fair notice” requires only that a violation be described with a 999‘reasonable degree of certainty’” . . . so that “ordinary people can understand what conductis prohibited.” ....’” [Citation.]’ (nm re Angel J. (1992) 9 Cal.App.4th 1096, 1101-1102 [(Angel J.)], quoting In re Robert M. (1985) 163 Cal.App.3d 812, 816, quoting Burg v. Municipal Court (1983) 35 Cal.3d 257, 270-271.)” (In re Byron B. 39 (2004) 119 Cal.App.4th 1013, 1018.) Whether a probation condition is unconstitutionally vague is a question of law reviewed de novo. (Jn re Shaun R. (2010) 188 Cal.App.4th 1129, 1143; In re JH. (2007) 158 Cal.App.4th 174, 183.) The meaningof“satisfactory grades” was addressed in Angel J., supra, 9 Cal.App.4th 1096. We agree with the Angel J. analysis, and resolve any issue of vagueness by defining “satisfactory grades” as “passing grades in each graded subject,” i.e., “not failing, such as D or above in an A through F grading system.” (/d. at p. 1102 & fn. 7.) A similarly straightforward interpretation can be applied to the probation condition that minor maintain “good behaviorat school.” The reasonable meaning of such a condition is that minor must follow the rules of behavioral conduct set forth by school personnel. This definition gives minor fair notice of what is required of him and allows the court to determine if the condition has been violated. We modify probation condition No. 9 accordingly. 40 DISPOSITION Probation condition No. 9 is modified to provide as follows: “You mustgo to school each day. You must be on time to each class. You must follow the rules of behavioral conductset forth by school personnel. You mustreceive passing grades in each graded subject.” In all other respects, the judgmentis affirmed. KRIEGLER,J. We concur: MOSK,Acting P.J. KIRSCHNER,J.” * Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuantto article VI, section 6 of the California Constitution. 41 i e S e ) A C R E S R e PROOF OF SERVICE BY MAIL Re: Albert C, Court OfAppeal Case: B256480, Superior Court Case: MJ21492 I the undersigned, declare that I am employedin the County of Sonoma, California. I am overthe age of eighteen years and not a party to the within entitled cause. My business address is 1235 Eleanor Ave., Rohnert Park CA. On December 18, 2015, I served a copy of the attached Petition for Review (CA Supreme Court) on each of the parties in said cause by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in United States mailat Sonoma, California, addressed as follows: California Appellate Project Office of the Public Defender Los Angeles Office Franica Tawn 520 S. Grand Avenue 1040 West Avenue J, Suite 1100 4th Floor Lancaster,, CA 93534 Los Angeles, CA 90071 Alfred J. McCourtney Juvenile Justice Office of the District Attorney Center Hon. Denise McLaughlin Bennett 1110 West Avenue J 1040 W. Avenue J Lancaster, CA 93534 Lancaster, CA 93534 Albert Cavazos c/o 1187 Coast Village Road Suite 1-573 Santa Barbara, CA 93108 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 18th day of December, 2015. lenwtI sy Teresa C. Martinez C4 (NameofDeclarant) (Signature of“Declarant PROOF OF SERVICE BY ELECTRONIC SERVICE Re: Albert C, Court Of Appeal Case: B256480, Superior Court Case: MJ21492 I the undersigned, am over the age of eighteen years and not a party to the within entitled cause. Mybusiness address is 1235 Eleanor Ave., Rohnert Park CA. On December18, 2015 a PDF version of the Petition for Review (CA Supreme Court) described herein was transmitted to each of the following using the email address indicated and/or direct upload. The email address from which the intended recipients were notified is Service@GreenPathSoftware.com. Court of Appeal, 2nd District State of California Supreme Court Clerk of Court Supreme Court Los Angeles, CA 90013 San Francisco, CA 94102-4797 Office of the Attorney General Office of the Public Defender Los Angeles Franica Tawn Los Angeles, CA 90013-1230 Lancaster,, CA 93534 docketingLAawt@doj.ca.gov ftawn@pubdef.lacounty.gov I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed on this 18th day of December, 2015 at 16:16 Pacific Time hour. Teresa C. Martinez é Co (Nameof Declarant) (Signature of Declarant)