Existing law authorizes, during the pendency of any juvenile proceeding, the minors counsel or the court to express a doubt as to the minors competency. Existing law requires proceedings to be suspended if the court finds substantial evidence raises a doubt as to the minors competency. Upon suspension of proceedings, existing law requires the court to order that the question of the minors competence be determined at a hearing. Existing law requires the court to appoint an expert, as specified, to evaluate whether the minor suffers from a mental disorder, developmental disability, developmental immaturity, or other condition and, if so, whether the condition or conditions impair the minors competency.

This bill would revise and recast these provisions to, among other things, expand upon the duties imposed upon the expert during his or her evaluation of a minor whose competency is in doubt, as specified. The bill would authorize the district attorney or minors counsel to retain or seek the appointment of additional qualified experts with regard to determining competency, as specified. The bill would require the Judicial Council to adopt a rule of court relating to the qualifications of those experts, as specified. The bill would require the minors competency to be determined at an evidentiary hearing, except as specified, and establish a presumption of competency, unless it is proven by a preponderance of the evidence that he or she is incompetent. If the minor is found incompetent and the petition contains only misdemeanor offenses, the bill would require the petition to be dismissed. The bill would require the court, upon a finding of incompetency, to refer the minor to services designed to help the minor attain competency unless the court finds that competency cannot be achieved within the foreseeable future, would authorize the court to refer the minor to treatment services to assist in remediation, and would require the court to consider appropriate alternatives to juvenile hall confinement, as specified. The bill would require the presiding judge of a juvenile court, the probation department, the county mental health department, and other specified entities to develop a written protocol describing the competency process and a program to ensure that minors who are found incompetent receive appropriate remediation services. By imposing additional duties on local officials, this bill would impose a state-mandated local program.

This bill would also make conforming changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law authorizes, during the pendency of any juvenile proceeding, the minors counsel or the court to express a doubt as to the minors competency. Existing law requires proceedings to be suspended if the court finds substantial evidence raises a doubt as to the minors competency. Upon suspension of proceedings, existing law requires the court to order that the question of the minors competence be determined at a hearing. Existing law requires the court to appoint an expert, as specified, to evaluate whether the minor suffers from a mental disorder, developmental disability, developmental immaturity, or other condition and, if so, whether the condition or conditions impair the minors competency.

This bill would revise and recast these provisions to, among other things, expand upon the duties imposed upon the expert during his or her evaluation of a minor whose competency is in doubt, as specified. The bill would authorize the district attorney or minors counsel to retain or seek the appointment of additional qualified experts with regard to determining competency, as specified. The bill would require the Judicial Council to adopt a rule of court relating to the qualifications of those experts, as specified. The bill would require the minors competency to be determined at an evidentiary hearing, except as specified, and establish a presumption of competency, unless it is proven by a preponderance of the evidence that he or she is incompetent. If the minor is found incompetent and the petition contains only misdemeanor offenses, the bill would require the petition to be dismissed. The bill would require the court, upon a finding of incompetency, to refer the minor to services designed to help the minor attain competency unless the court finds that competency cannot be achieved within the foreseeable future, would authorize the court to refer the minor to treatment services to assist in remediation, and would require the court to consider appropriate alternatives to juvenile hall confinement, as specified. The bill would require the presiding judge of a juvenile court, the probation department, the county mental health department, and other specified entities to develop a written protocol describing the competency process and a program to ensure that minors who are found incompetent receive appropriate remediation services. By imposing additional duties on local officials, this bill would impose a state-mandated local program.

This bill would also make conforming changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law authorizes, during the pendency of any juvenile proceeding, the minors counsel or the court to express a doubt as to the minors competency. Existing law requires proceedings to be suspended if the court finds substantial evidence raises a doubt as to the minors competency. Upon suspension of proceedings, existing law requires the court to order that the question of the minors competence be determined at a hearing. Existing law requires the court to appoint an expert, as specified, to evaluate whether the minor suffers from a mental disorder, developmental disability, developmental immaturity, or other condition and, if so, whether the condition or conditions impair the minors competency.

This bill would revise and recast these provisions to, among other things, expand upon the duties imposed upon the expert during his or her evaluation of a minor whose competency is in doubt, as specified. The bill would authorize the district attorney or minors counsel to retain or seek the appointment of additional qualified experts with regard to determining competency, as specified. The bill would require the Judicial Council to adopt a rule of court relating to the qualifications of those experts, as specified. The bill would require the minors competency to be determined at an evidentiary hearing, except as specified, and establish a presumption of competency, unless it is proven by a preponderance of the evidence that he or she is incompetent. If the minor is found incompetent and the petition contains only misdemeanor offenses, the bill would require the petition to be dismissed. The bill would require the court, upon a finding of incompetency, to refer the minor to services designed to help the minor attain competency unless the court finds that competency cannot be achieved within the foreseeable future, would authorize the court to refer the minor to treatment services to assist in remediation, and would require the court to consider appropriate alternatives to juvenile hall confinement, as specified. The bill would require the presiding judge of a juvenile court, the probation department, the county mental health department, and other specified entities to develop a written protocol describing the competency process and a program to ensure that minors who are found incompetent receive appropriate remediation services. By imposing additional duties on local officials, this bill would impose a state-mandated local program.

This bill would also make conforming changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law authorizes, during the pendency of any juvenile proceeding, the minors counsel or the court to express a doubt as to the minors competency. Existing law requires proceedings to be suspended if the court finds substantial evidence raises a doubt as to the minors competency. Upon suspension of proceedings, existing law requires the court to order that the question of the minors competence be determined at a hearing. Existing law requires the court to appoint an expert, as specified, to evaluate whether the minor suffers from a mental disorder, developmental disability, developmental immaturity, or other condition and, if so, whether the condition or conditions impair the minors competency.

This bill would revise and recast these provisions to, among other things, expand upon the duties imposed upon the expert during his or her evaluation of a minor whose competency is in doubt, as specified. The bill would authorize the district attorney or minors counsel to retain or seek the appointment of additional qualified experts with regard to determining competency, as specified. The bill would require the Judicial Council to adopt a rule of court relating to the qualifications of those experts, as specified. The bill would require the minors competency to be determined at an evidentiary hearing, except as specified, and establish a presumption of competency, unless it is proven by a preponderance of the evidence that he or she is incompetent. If the minor is found incompetent and the petition contains only misdemeanor offenses, the bill would require the petition to be dismissed. The bill would require the court, upon a finding of incompetency, to refer the minor to services designed to help the minor attain competency and to unless the court finds that competency cannot be achieved within the foreseeable future, would authorize the court to refer the minor to treatment services to assist in remediation, and would require the court to consider appropriate alternatives to juvenile hall confinement, as specified. The bill would require the presiding judge of a juvenile court, the probation department, the county mental health department, and other specified entities to develop a written protocol describing the competency process and a program to ensure that minors who are found incompetent receive appropriate remediation services. By imposing additional duties on local officials, this bill would impose a state-mandated local program.

This bill would also make conforming changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law governs the obligations of tenants and landlords under a lease or tenancy. Existing law authorizes a tenant who has made a payment to a public utility or publicly owned utility, or a district under any of certain statutes to deduct the amount of the payment from the rent when due.

This bill would make a nonsubstantive change to that provision.

CONCURRENCE IN SENATE AMENDMENTS

CSA2 Bill Id:AB 1214

Author:(Mark Stone)

As Amended Ver:August 17, 2018

Majority vote

(vote not relevant)

(Pub. S.)

Original Committee Reference: PUB. S.

SUMMARY: Revises the procedure to determine the mental competence of a juvenile charged with a crime.

The Senate amendments:

1. Delete the Assembly version of this bill.
2. State that if the court has a doubt that a minor who is subject to any juvenile proceedings is mentally competent, the court shall suspend all proceedings and make a determination of competence.
3. State that a minor is incompetent if he or she lacks sufficient present ability to consult with counsel and assist in preparing his or her defense with a reasonable degree of rational understanding, or lacks a rational as well as factual understanding of the nature of the charges or proceedings against him or her.
4. State that incompetency may result from the presence of any condition or conditions, including, but not limited to, mental illness, mental disorder, developmental disability, or developmental immaturity.
5. Allow the court to receive information from any source regarding the minor's ability to understand the proceedings.
6. Provide that if the court finds substantial evidence that raises a doubt as to the minor's competency, the proceedings shall be suspended.
7. State that unless the parties stipulate to a finding that the minor lacks competency, or the parties are willing to submit on the issue of the minor's lack of competency, the court shall appoint an expert to evaluate the minor to determine if the minor is competent.
8. Require the expert to have expertise in child and adolescent development and forensic evaluation of juveniles for purposes of adjudicating competency, to be familiar with competency standards and accepted criteria used in evaluating juvenile competency, to have received training in conducting juvenile competency evaluations, and to be familiar with competency remediation for the conditions affecting competence in the particular case.
9. Require the expert to personally interview the minor and review all of the available records provided, including, but not limited to, medical, education, special education, probation, child welfare, mental health, regional center, and court records, and any other relevant information that is available.
10. Require the expert to consult with the minor's counsel and any other person who has provided information to the court regarding the minor's lack of competency, to gather a developmental history of the minor, to administer age-appropriate testing specific to the issue of competency, unless the facts of the particular case render testing unnecessary or inappropriate.
11. Specify that in a written report, the expert shall opine whether the minor has the sufficient present ability to consult with his or her counsel with a reasonable degree of rational understanding and whether he or she has a rational and factual understanding of the proceedings against him or her.
12. Specify that if the expert concludes that the minor lacks competency, the expert shall give his or her opinion on whether the minor is likely to attain competency in the foreseeable future, and if so, make recommendations regarding the type of services that would be effective in assisting the minor in attaining competency.
13. Require the Judicial Council, in conjunction with specified groups or individuals, to adopt a rule of court identifying the training and experience needed for an expert to be competent in forensic evaluations of juveniles, and shall develop and adopt rules for the implementation of the other requirements in this bill.
14. Specify that statements made to the appointed expert during the minor's competency evaluation, statements made by the minor to mental health professionals during the remediation proceedings, and any fruits of those statements shall not be used in any other hearing against the minor in either juvenile or adult court.
15. Allow the district attorney or minor's counsel to retain or seek the appointment of additional qualified experts who may testify during the competency hearing.
16. Require an expert's report and qualifications to be disclosed to the opposing party within a reasonable time before, but no later than five court days before, the hearing, or sanctions may be imposed.
17. State that an expert's opinion that a minor is developmentally disabled does not supersede an independent determination by the regional center whether the minor is eligible for specified services.
18. State that the question of the minor's competency shall be determined at an evidentiary hearing unless there is a stipulation or submission by the parties on the findings of the expert.
19. Specify that it shall be presumed that the minor is mentally competent, unless it is proven by a preponderance of the evidence that the minor is mentally incompetent.
20. Specify that if the minor is under 14 years old at the time of the commission of the alleged offense the court shall make a determination as to the minor's capacity prior to deciding the issue of competency.
21. Provide that if the court finds, by a preponderance of evidence, that the minor is incompetent, all proceedings shall remain suspended for a period of time that is no longer than reasonably necessary to determine whether there is a substantial probability that the minor will attain competency in the foreseeable future, or the court no longer retains jurisdiction and the case must be dismissed.
22. State that while the minor is deemed incompetent, court may rule on motions that do not require the participation of the minor in the preparation of the motions. These motions include, but are not limited to, all of the following:
    1. Motions to dismiss;
    2. Motions regarding a change in the placement of the minor;
    3. Detention hearings; and
    4. Demurrers.
23. State that if the minor is found to be incompetent and the petition contains only misdemeanor offenses, the petition shall be dismissed.
24. Provide that if the court finds the minor to be competent, the court shall reinstate proceedings.
25. Require the court upon a finding of incompetency, to refer the minor to services designed to help the minor attain competency, unless the court finds that competency cannot be achieved within the foreseeable future.
26. State that a finding of incompetency alone shall not be the basis for secure confinement.
27. Require the minor to be returned to court at the earliest possible date. The court shall review remediation services at least every 30 calendar days for minors in custody and every 45 calendar days for minors out of custody prior to the expiration of the total allowable remediation period.
28. Specify that if the minor is in custody, the county mental health department shall provide the court with suitable alternatives for the continued delivery of remediation services upon release from custody as part of the court's review of remediation services.
29. Require the court to consider appropriate alternatives to juvenile hall confinement.
30. State that within six months of the initial receipt of a recommendation by the designated person or entity, the court shall hold an evidentiary hearing on whether the minor is remediated or is able to be remediated unless the parties stipulate to, or agree to the recommendation of, the remediation program.
31. Specify that if the recommendation is that the minor has attained competency, and if the minor disputes that recommendation, the burden is on the minor to prove by a preponderance of evidence that he or she remains incompetent.
32. Specify that if the recommendation is that the minor is unable to be remediated and if the prosecutor disputes that recommendation, the burden is on the prosecutor to prove by a preponderance of evidence that the minor is remediable.
33. Specify that the court finds that the minor has been remediated, the court shall reinstate the proceedings.
34. State that if the court finds that the minor has not yet been remediated, but is likely to be remediated within six months, the court shall order the minor to return to the remediation program. However, the total remediation period shall not exceed one year from the finding of incompetency and secure confinement shall not exceed specified limits.
35. State that if the court finds that the minor will not achieve competency within six months, the court shall dismiss the petition.
36. State that if appropriate, the court shall refer the minor for specified mental health evaluations.
37. Provide that secure confinement shall not extend beyond six months from the finding of incompetence, unless otherwise excepted by the provisions of this bill.
38. Specify factors for the court to consider when deciding whether a minor that has been found to be incompetent should be placed in secure confinement.
39. State that only in cases where the minor has been charged with specified serious or violent charges may the court consider whether it is necessary and in the best interests of the minor and the public's safety to order secure confinement of a minor for up to an additional year, not to exceed 18 months from the finding of incompetence.
40. Require the presiding judge of the juvenile court, the probation department, the county mental health department, the public defender and any other entity that provides representation for minors, the district attorney, the regional center, if appropriate, and any other participants that the presiding judge shall designate, to develop a written protocol describing the competency process and a program to ensure that minors who are found incompetent receive appropriate remediation services.

EXISTING LAW:

1. States that during any juvenile proceeding, the minor's counsel or the court may express a doubt as to the minor's competency.
2. Specifies that a minor is incompetent to proceed if he or she lacks sufficient present ability to consult with counsel and assist in preparing his or her defense with a reasonable degree of rational understanding, or lacks a rational as well as factual understanding, of the nature of the charges or proceedings against him or her.
3. If the court finds substantial evidence raises a doubt as to the minor's competency, the proceedings shall be suspended.
4. States that upon suspension of proceedings, the court shall order that the question of the minor's competence be determined at a hearing.
5. Requires the court to appoint an expert to evaluate whether the minor suffers from a mental disorder, developmental disability, developmental immaturity, or other condition and, if so, whether the condition or conditions impair the minor's competency.
6. Requires the expert to have expertise in child and adolescent development, and training in the forensic evaluation of juveniles, and shall be familiar with competency standards and accepted criteria used in evaluating competence.
7. States that the Judicial Council shall develop and adopt rules for the implementation of these requirements.
8. Specifies that if the minor is found to be incompetent by a preponderance of the evidence, all proceedings shall remain suspended for a period of time that is no longer than reasonably necessary to determine whether there is a substantial probability that the minor will attain competency in the foreseeable future, or the court no longer retains jurisdiction.
9. Provides that during the time proceedings are suspended, the court may make orders that it deems appropriate for services that may assist the minor in attaining competency. Further, the court may rule on motions that do not require the participation of the minor in the preparation of specified motions
10. States that if the minor is found to be competent, the court may proceed commensurate with the court's jurisdiction.
11. Specifies that if the expert believes the minor is developmentally disabled, the court shall appoint the director of a regional center for developmentally disabled individuals, as specified, to evaluate the minor.
12. Specifies that the director of the regional center, or his or her designee, shall determine whether the minor is eligible for services under the Lanterman Developmental Disabilities Services Act, and shall provide the court with a written report informing the court of his or her determination.
13. States that an expert's opinion that a minor is developmentally disabled does not supersede an independent determination by the regional center whether the minor is eligible for services under the Lanterman Developmental Disabilities Services Act.
14. Specifies that if a doubt arises in the mind of the judge as to the mental competence of an adult defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent.
15. Provides that if counsel informs the court that he or she believes the adult defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing.
16. In any case where the adult defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof;
17. Allows one of the psychiatrists or licensed psychologists to be named by the defense and one to be named by the prosecution, when two experts are appointed.
18. States a presumption that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.
19. States that at the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment, as specified, whichever is shorter, but no later than 90 days prior to the expiration of the defendant's term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court.
20. States that if, at the end of one year from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the misdemeanor complaint, whichever is shorter, the defendant has not recovered mental competence, the defendant shall be returned to the committing court.

FISCAL EFFECT: According to the Senate Appropriations Committee:

1. Remediation services: Unknown, potentially-significant costs in the hundreds of thousands of dollars to county mental health departments to provide, or contract out for, new or a higher level of remediation services to minors as specified in this bill. If, in any given year, county mental health departments are providing, or contracting for, remediation services to 500 minors for one month with a cost of $1,900 per child, the costs of this bill would be $950,000. To the extent that the Commission on State Mandates determines that this bill imposes a new or higher level of service required of local agencies, the state would be required to reimburse those costs from the General Fund. (Local funds/General Fund)
2. Court: Minor and absorbable costs (General Fund*) to the court to determine a minor's competency under the revised procedures. Minor and absorbable costs to the Judicial Council to establish a new Rule of Court.

*Trial Court Trust Fund

COMMENTS: According to the Author, "AB 1214 would establish timelines and processes relating to the determination of competency in court proceedings and the evaluation and delivery of remediation services. While existing law establishes juvenile competency and sets forth guidelines for these proceedings, there remain some operational ambiguities among practitioners relative to the types of remediation services to be delivered, who is the appropriate entity to deliver them, and where a youth will receive those services and for how long. This bill seeks to provide additional guidance around these questions.

"The practical impact is that there are times in which juveniles are remaining in the hall without clear timelines governing the length of remediation services. It is important that not only do these vulnerable kids receive appropriate services, but that they do so within a reasonable time frame in order to get them out of the hall and in proper placement and care going forward."

This bill was substantially amended in the Senate and the Assembly-approved version of this bill was deleted. This bill, as amended in the Senate, is inconsistent with Assembly actions and the provisions of this bill, as amended in the Senate, have not been heard in an Assembly policy committee.

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0005049

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1214

Author:(Mark Stone)

As Amended Ver:August 17, 2018

Majority vote

(vote not relevant)

Original Committee Reference: JUD

SUMMARY: Revises the procedure to determine the mental competence of a juvenile charged with a crime.

The Senate amendments:

1. Delete the Assembly version of this bill.
2. State that if the court has a doubt that a minor who is subject to any juvenile proceedings is mentally competent, the court shall suspend all proceedings and make a determination of competence.
3. State that a minor is incompetent if he or she lacks sufficient present ability to consult with counsel and assist in preparing his or her defense with a reasonable degree of rational understanding, or lacks a rational as well as factual understanding of the nature of the charges or proceedings against him or her.
4. State that incompetency may result from the presence of any condition or conditions, including, but not limited to, mental illness, mental disorder, developmental disability, or developmental immaturity.
5. Allow the court to receive information from any source regarding the minor's ability to understand the proceedings.
6. Provide that if the court finds substantial evidence that raises a doubt as to the minor's competency, the proceedings shall be suspended.
7. State that unless the parties stipulate to a finding that the minor lacks competency, or the parties are willing to submit on the issue of the minor's lack of competency, the court shall appoint an expert to evaluate the minor to determine if the minor is competent.
8. Require the expert to have expertise in child and adolescent development and forensic evaluation of juveniles for purposes of adjudicating competency, to be familiar with competency standards and accepted criteria used in evaluating juvenile competency, to have received training in conducting juvenile competency evaluations, and to be familiar with competency remediation for the conditions affecting competence in the particular case.
9. Require the expert to personally interview the minor and review all of the available records provided, including, but not limited to, medical, education, special education, probation, child welfare, mental health, regional center, and court records, and any other relevant information that is available.
10. Require the expert to consult with the minor's counsel and any other person who has provided information to the court regarding the minor's lack of competency, to gather a developmental history of the minor, to administer age-appropriate testing specific to the issue of competency, unless the facts of the particular case render testing unnecessary or inappropriate.
11. Specify that in a written report, the expert shall opine whether the minor has the sufficient present ability to consult with his or her counsel with a reasonable degree of rational understanding and whether he or she has a rational and factual understanding of the proceedings against him or her.
12. Specify that if the expert concludes that the minor lacks competency, the expert shall give his or her opinion on whether the minor is likely to attain competency in the foreseeable future, and if so, make recommendations regarding the type of services that would be effective in assisting the minor in attaining competency.
13. Require the Judicial Council, in conjunction with specified groups or individuals, to adopt a rule of court identifying the training and experience needed for an expert to be competent in forensic evaluations of juveniles, and shall develop and adopt rules for the implementation of the other requirements in this bill.
14. Specify that statements made to the appointed expert during the minor's competency evaluation, statements made by the minor to mental health professionals during the remediation proceedings, and any fruits of those statements shall not be used in any other hearing against the minor in either juvenile or adult court.
15. Allow the district attorney or minor's counsel to retain or seek the appointment of additional qualified experts who may testify during the competency hearing.
16. Require an expert's report and qualifications to be disclosed to the opposing party within a reasonable time before, but no later than five court days before, the hearing, or sanctions may be imposed.
17. State that an expert's opinion that a minor is developmentally disabled does not supersede an independent determination by the regional center whether the minor is eligible for specified services.
18. State that the question of the minor's competency shall be determined at an evidentiary hearing unless there is a stipulation or submission by the parties on the findings of the expert.
19. Specify that it shall be presumed that the minor is mentally competent, unless it is proven by a preponderance of the evidence that the minor is mentally incompetent.
20. Specify that if the minor is under 14 years old at the time of the commission of the alleged offense the court shall make a determination as to the minor's capacity prior to deciding the issue of competency.
21. Provide that if the court finds, by a preponderance of evidence, that the minor is incompetent, all proceedings shall remain suspended for a period of time that is no longer than reasonably necessary to determine whether there is a substantial probability that the minor will attain competency in the foreseeable future, or the court no longer retains jurisdiction and the case must be dismissed. 
22. State that while the minor is deemed incompetent, court may rule on motions that do not require the participation of the minor in the preparation of the motions. These motions include, but are not limited to, all of the following:
    1. Motions to dismiss;
    2. Motions regarding a change in the placement of the minor;
    3. Detention hearings; and
    4. Demurrers.
23. State that if the minor is found to be incompetent and the petition contains only misdemeanor offenses, the petition shall be dismissed.
24. Provide that if the court finds the minor to be competent, the court shall reinstate proceedings.
25. Require the court upon a finding of incompetency, to refer the minor to services designed to help the minor attain competency, unless the court finds that competency cannot be achieved within the foreseeable future.
26. State that a finding of incompetency alone shall not be the basis for secure confinement.
27. Require the minor to be returned to court at the earliest possible date. The court shall review remediation services at least every 30 calendar days for minors in custody and every 45 calendar days for minors out of custody prior to the expiration of the total allowable remediation period.
28. Specify that if the minor is in custody, the county mental health department shall provide the court with suitable alternatives for the continued delivery of remediation services upon release from custody as part of the court's review of remediation services.
29. Require the court to consider appropriate alternatives to juvenile hall confinement.
30. State that within six months of the initial receipt of a recommendation by the designated person or entity, the court shall hold an evidentiary hearing on whether the minor is remediated or is able to be remediated unless the parties stipulate to, or agree to the recommendation of, the remediation program.
31. Specify that if the recommendation is that the minor has attained competency, and if the minor disputes that recommendation, the burden is on the minor to prove by a preponderance of evidence that he or she remains incompetent.
32. Specify that if the recommendation is that the minor is unable to be remediated and if the prosecutor disputes that recommendation, the burden is on the prosecutor to prove by a preponderance of evidence that the minor is remediable.
33. Specify that the court finds that the minor has been remediated, the court shall reinstate the proceedings.
34. State that if the court finds that the minor has not yet been remediated, but is likely to be remediated within six months, the court shall order the minor to return to the remediation program. However, the total remediation period shall not exceed one year from the finding of incompetency and secure confinement shall not exceed specified limits.
35. State that if the court finds that the minor will not achieve competency within six months, the court shall dismiss the petition.
36. State that if appropriate, the court shall refer the minor for specified mental health evaluations.
37. Provide that secure confinement shall not extend beyond six months from the finding of incompetence, unless otherwise excepted by the provisions of this bill.
38. Specify factors for the court to consider when deciding whether a minor that has been found to be incompetent should be placed in secure confinement.
39. State that only in cases where the minor has been charged with specified serious or violent charges may the court consider whether it is necessary and in the best interests of the minor and the public's safety to order secure confinement of a minor for up to an additional year, not to exceed 18 months from the finding of incompetence.
40. Require the presiding judge of the juvenile court, the probation department, the county mental health department, the public defender and any other entity that provides representation for minors, the district attorney, the regional center, if appropriate, and any other participants that the presiding judge shall designate, to develop a written protocol describing the competency process and a program to ensure that minors who are found incompetent receive appropriate remediation services.

EXISTING LAW:

1. States that during any juvenile proceeding, the minor's counsel or the court may express a doubt as to the minor's competency.
2. Specifies that a minor is incompetent to proceed if he or she lacks sufficient present ability to consult with counsel and assist in preparing his or her defense with a reasonable degree of rational understanding, or lacks a rational as well as factual understanding, of the nature of the charges or proceedings against him or her.
3. If the court finds substantial evidence raises a doubt as to the minor's competency, the proceedings shall be suspended.
4. States that upon suspension of proceedings, the court shall order that the question of the minor's competence be determined at a hearing.
5. Requires the court to appoint an expert to evaluate whether the minor suffers from a mental disorder, developmental disability, developmental immaturity, or other condition and, if so, whether the condition or conditions impair the minor's competency.
6. Requires the expert to have expertise in child and adolescent development, and training in the forensic evaluation of juveniles, and shall be familiar with competency standards and accepted criteria used in evaluating competence.
7. States that the Judicial Council shall develop and adopt rules for the implementation of these requirements.
8. Specifies that if the minor is found to be incompetent by a preponderance of the evidence, all proceedings shall remain suspended for a period of time that is no longer than reasonably necessary to determine whether there is a substantial probability that the minor will attain competency in the foreseeable future, or the court no longer retains jurisdiction.
9. Provides that during the time proceedings are suspended, the court may make orders that it deems appropriate for services that may assist the minor in attaining competency. Further, the court may rule on motions that do not require the participation of the minor in the preparation of specified motions
10. States that if the minor is found to be competent, the court may proceed commensurate with the court's jurisdiction.
11. Specifies that if the expert believes the minor is developmentally disabled, the court shall appoint the director of a regional center for developmentally disabled individuals, as specified, to evaluate the minor.
12. Specifies that the director of the regional center, or his or her designee, shall determine whether the minor is eligible for services under the Lanterman Developmental Disabilities Services Act, and shall provide the court with a written report informing the court of his or her determination.
13. States that an expert's opinion that a minor is developmentally disabled does not supersede an independent determination by the regional center whether the minor is eligible for services under the Lanterman Developmental Disabilities Services Act.
14. Specifies that if a doubt arises in the mind of the judge as to the mental competence of an adult defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent.
15. Provides that if counsel informs the court that he or she believes the adult defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing.
16. In any case where the adult defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof;
17. Allows one of the psychiatrists or licensed psychologists to be named by the defense and one to be named by the prosecution, when two experts are appointed.
18. States a presumption that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.
19. States that at the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment, as specified, whichever is shorter, but no later than 90 days prior to the expiration of the defendant's term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court.
20. States that if, at the end of one year from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the misdemeanor complaint, whichever is shorter, the defendant has not recovered mental competence, the defendant shall be returned to the committing court.

FISCAL EFFECT: According to the Senate Appropriations Committee:

1. Remediation services: Unknown, potentially-significant costs in the hundreds of thousands of dollars to county mental health departments to provide, or contract out for, new or a higher level of remediation services to minors as specified in this bill. If, in any given year, county mental health departments are providing, or contracting for, remediation services to 500 minors for one month with a cost of $1,900 per child, the costs of this bill would be $950,000. To the extent that the Commission on State Mandates determines that this bill imposes a new or higher level of service required of local agencies, the state would be required to reimburse those costs from the General Fund. (Local funds/General Fund)
2. Court: Minor and absorbable costs (General Fund*) to the court to determine a minor's competency under the revised procedures. Minor and absorbable costs to the Judicial Council to establish a new Rule of Court.

*Trial Court Trust Fund

COMMENTS: According to the Author, "AB 1214 would establish timelines and processes relating to the determination of competency in court proceedings and the evaluation and delivery of remediation services. While existing law establishes juvenile competency and sets forth guidelines for these proceedings, there remain some operational ambiguities among practitioners relative to the types of remediation services to be delivered, who is the appropriate entity to deliver them, and where a youth will receive those services and for how long. This bill seeks to provide additional guidance around these questions.

"The practical impact is that there are times in which juveniles are remaining in the hall without clear timelines governing the length of remediation services. It is important that not only do these vulnerable kids receive appropriate services, but that they do so within a reasonable time frame in order to get them out of the hall and in proper placement and care going forward."

This bill was substantially amended in the Senate and the Assembly-approved version of this bill was deleted. This bill, as amended in the Senate, is inconsistent with Assembly actions and the provisions of this bill, as amended in the Senate, have not been heard in an Assembly policy committee.

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0004931

 THIRD READING  

Bill No: AB 1214

Author:

Amended: 8/17/18 in Senate

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 6-0, 6/26/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Wiener

NO VOTE RECORDED: Stone

SENATE APPROPRIATIONS COMMITTEE: 6-1, 8/16/18

AYES: Portantino, Beall, Bradford, Hill, Nielsen, Wiener

NOES: Bates

ASSEMBLY FLOOR: 77-0, 5/8/17 (Consent) - See last page for vote

SUBJECT:

SOURCE: Chief Probation Officers of California

DIGEST:

This bill revises the procedure used to determine the mental competence of a juvenile charged with a crime.

ANALYSIS:

Existing law:

1. Provides that during any juvenile proceeding, the minor’s counsel or the court may express a doubt as to the minor’s competency. (Welf. & Inst. Code, § 709, subd. (a).)
   
2. Specifies that a minor is incompetent to proceed if he or she lacks sufficient present ability to consult with counsel and assist in preparing his or her defense with a reasonable degree of rational understanding, or lacks a rational as well as factual understanding, of the nature of the charges or proceedings against him or her. If the court finds substantial evidence that raises a doubt as to the minor’s competency, the proceedings shall be suspended. (Welf. & Inst. Code, § 709, subd. (a).)
   
3. Provides that upon suspension of proceedings, the court shall order that the question of the minor’s competence be determined at a hearing. (Welf. & Inst. Code, § 709, subd. (b).)
4. Requires the court to appoint an expert to evaluate whether the minor suffers from a mental disorder, developmental disability, developmental immaturity, or other condition and, if so, whether the condition or conditions impair the minor’s competency. Requires the expert to have expertise in child and adolescent development, and training in the forensic evaluation of juveniles, and to be familiar with competency standards and accepted criteria used in evaluating competence. Requires the Judicial Council to develop and adopt rules for the implementation of these requirements. (Welf. & Inst. Code, § 709, subd. (b).)
   
5. Requires that if the minor is found to be incompetent by a preponderance of the evidence, all proceedings are to remain suspended for a period of time that is no longer than reasonably necessary to determine whether there is a substantial probability that the minor will attain competency in the foreseeable future, or the court no longer retains jurisdiction. (Welf. & Inst. Code, § 709, subd. (c).)
   
6. Provides that during the time proceedings are suspended, the court may make orders that it deems appropriate for services that may assist the minor in attaining competency. Permits the court to rule on motions that do not require the participation of the minor in the preparation of specified motions. (Welf. & Inst. Code, § 709, subd. (c).)
   
7. Provides that if the minor is found to be competent, the court may proceed commensurate with the court’s jurisdiction. (Welf. & Inst. Code, § 709, subd. (d).)
   
8. Requires the court to appoint the director of a regional center for developmentally disabled individuals to evaluate the minor if the expert believes the minor is developmentally disabled. Requires the director of the regional center to determine whether the minor is eligible for services under the Lanterman Developmental Disabilities Services Act, and to provide the court with a written report informing the court of his or her determination. (Welf. & Inst. Code, § 709, subd. (f).)
   
9. States that an expert’s opinion that a minor is developmentally disabled does not supersede an independent determination by the regional center whether the minor is eligible for services under the Lanterman Developmental Disabilities Services Act. (Welf. & Inst. Code, § 709, subd. (g).)

This bill:

1. Requires the court to suspend all proceedings and make a determination of competence whenever the court has a doubt that a minor who is subject to any juvenile proceedings is mentally competent.
   
2. Provides that a minor is mentally incompetent if he or she lacks sufficient present ability to consult with counsel and assist in preparing his or her defense with a reasonable degree of rational understanding, or lacks a rational as well as factual understanding of the nature of the charges or proceedings against him or her. Specifies that incompetency may result from the presence of any condition or conditions, including, but not limited to, mental illness, mental disorder, developmental disability, or developmental immaturity. Provides that the juvenile competency statute applies to a minor who is alleged to come within the jurisdiction of the court pursuant to Welfare and Institutions Code Section 601 or 602.
3. Allows the court to receive information from any source regarding the minor’s ability to understand the proceedings. Permits the minor’s counsel or the court to express a doubt as to the minor’s competency.
4. Requires the proceedings to be suspended if the court finds substantial evidence raises a doubt as to the minor’s competency.
5. Requires the court, except as specified, to appoint an expert to evaluate the minor and determine if the minor is incompetent, as defined.
6. Requires the expert to have expertise in child and adolescent development and forensic evaluation of juveniles for purposes of adjudicating competency, to be familiar with competency standards and accepted criteria used in evaluating juvenile competency, and to be familiar with competency remediation for the condition or conditions affecting competency in the particular case.
7. Requires the expert to personally interview the minor and review all of the available records provided, as specified. Requires the expert to consult with the minor’s counsel and any other person who has provided information to the court regarding the minor’s lack of competency, to gather a developmental history of the minor, to administer age-appropriate testing specific to the issue of competency, unless the facts of the particular case render testing unnecessary or inappropriate. Requires the expert to be proficient in the language preferred by the minor, or, if that is not feasible, the expert must employ the services of a certified interpreter and use assessment tools that are linguistically and culturally appropriate for the minor.
   
8. Requires the expert to submit a written report that provides an opinion on whether the minor has the sufficient present ability to consult with his or her counsel with a reasonable degree of rational understanding and whether he or she has a rational and factual understanding of the proceedings against him or her. Requires the expert to state the basis for these conclusions.
   
9. Provides that if the expert concludes that the minor lacks competency, the expert is required to give his or her opinion on whether the minor is likely to attain competency in the foreseeable future, and if so, make recommendations regarding the type of services that would be effective in assisting the minor in attaining competency.
   
10. Requires the Judicial Council, in conjunction with specified stakeholders, to adopt a rule of court identifying the training and experience needed for an expert to be competent in forensic evaluations of juveniles. Requires the Judicial Council to develop and adopt rules for the implementation of the other requirements involving the minor’s competency.
    
11. Prohibits the use of statements made to the appointed expert during the minor’s competency evaluation and statements made by the minor to mental health professionals during the remediation proceedings, and any fruits of these statements, in any other hearing against the minor in either juvenile or adult court.
    
12. Allows the district attorney or minor’s counsel to retain or seek the appointment of additional qualified experts who may testify during the competency hearing. Requires the expert’s report and qualifications to be disclosed to the opposing party within a reasonable time before, but no later than five court days before, the hearing, or sanctions may be imposed.
13. Provides that if, after disclosure of the report, the opposing party requests a continuance in order to further prepare for the hearing and shows good cause for the continuance, the court shall grant a continuance for a reasonable period of time. Provides that nothing in this subsection allows a privately retained or appointed district attorney qualified expert to perform a competency evaluation on a minor without an order from the juvenile court after petitioning the court for such purpose in accord with the Civil Discovery Act.
14. Requires the court to appoint the director of a regional center for developmentally disabled individuals, as described, or his or her designee, to evaluate the minor if the expert believes the minor is developmentally disabled. The director of the regional center, or his or her designee, is required to determine whether the minor is eligible for services under the Lanterman Developmental Disabilities Services Act, and to provide the court with a written report informing the court of his or her determination. The court’s appointment of the director of the regional center for determination of eligibility for services shall not delay the court’s proceedings for determination of competency.
15. Provides that an expert’s opinion that a minor is developmentally disabled does not supersede an independent determination by the regional center whether the minor is eligible for services under the Lanterman Developmental Disabilities Services Act.
16. Provides that this section shall not be interpreted to authorize or require either of the following:
17. The placement of a minor who is incompetent in a developmental center or community facility operated by the State Department of Developmental Services without a determination by a regional center director, or his or her designee, that the minor has a developmental disability and is eligible for services under the Lanterman Developmental Disabilities Services Act.
18. Determinations regarding the competency of a minor by the director of the regional center or his or her designee.
19. Requires that the question of the minor’s competency be determined at an evidentiary hearing unless there is a stipulation or submission by the parties on the findings of the expert the minor is incompetent. Requires that it is presumed that the minor is mentally competent, unless it is proven by a preponderance of the evidence that the minor is mentally incompetent. If the minor is under 14 years of age at the time of the commission of the alleged offense, the court shall make a determination as to the minor’s capacity prior to deciding the issue of competency.
20. Requires the court to reinstate proceedings and proceed commensurate with the court’s jurisdiction if the court finds the minor to be competent.
21. Provides that if the court finds, by a preponderance of evidence, that the minor is incompetent, all proceedings are to remain suspended for a period of time that is no longer than reasonably necessary to determine whether there is a substantial probability that the minor will attain competency in the foreseeable future, or the court no longer has jurisdiction and the case must be dismissed.
    
22. Provides that if the minor is found to be incompetent and the petition contains only misdemeanor offenses, the petition shall be dismissed.
    
23. Requires the court, upon a finding of incompetency, to refer the minor to services designed to help the minor attain competency unless the court finds that competency cannot be achieved within the foreseeable future. Authorizes the court to refer the minor to treatment services to assist in remediation which may include, but are not limited to, mental health services, treatment for trauma, medically supervised medication, behavioral counseling, curriculum-based legal education, or training in socialization skills, consistent with any laws requiring consent. Requires that service providers and evaluators adhere to the standards stated in this section and the California Rules of Court. Requires that services be provided in the least restrictive environment consistent with public safety, as determined by the court.
24. Provides that a finding of incompetency alone shall not be the basis for secure confinement.
25. Requires that the minor be returned to court at the earliest possible date. Requires the court to review remediation services at least every 30 calendar days for minors in custody and every 45 calendar days for minors out of custody prior to the expiration of the total remediation period, as specified.
26. Provides that if the minor is in custody, the county mental health department must provide the court with suitable alternatives for the continued delivery of remediation services upon release from custody as part of the court’s review of remediation services. Requires the court to consider appropriate alternatives to juvenile hall confinement, including, but not limited to, all of the following:
27. Developmental centers.
28. Placement through regional centers.
29. Short-term residential therapeutic programs.
30. Crisis residential programs.
31. Civil commitment.
32. Foster care, relative placement, or other nonsecure placement.
33. Other residential treatment programs.
34. Provides that the court may make any orders necessary to assist with the delivery of remediation services in an alternative setting to secure confinement.
    
35. Requires the court, upon receipt of the recommendation by the designated person or entity, to hold a 6-month evidentiary hearing on whether the minor is remediated or is able to be remediated unless the parties stipulate to, or agree to the recommendation of, the remediation program.
    
36. Provides that if the recommendation is that the minor has attained competency, and if the minor disputes that recommendation, the burden is on the minor to prove by a preponderance of evidence that he or she remains incompetent.
    
37. Provides that if the recommendation is that the minor is unable to be remediated and if the prosecutor disputes that recommendation, the burden is on the prosecutor to prove by a preponderance of evidence that the minor is remediable. Provides that if the prosecution contests the evaluation of continued incompetence, the minor shall be presumed incompetent and the prosecution shall have the burden to prove by a preponderance of evidence that the minor is competent.
    
38. Provides that if the court finds that the minor has been remediated, the court shall reinstate the proceedings.
    
39. Specifies that if the court finds that the minor has not yet been remediated, but is likely to be remediated within six months, the court shall order the minor to return to the remediation program. The total remediation period shall not exceed one year from the finding of incompetency. Provides that secure confinement shall not exceed the limit specified below.
    
40. States that if the court finds that the minor will not achieve competency within six months, the court shall dismiss the petition. Permits the court to invite persons and agencies with information about the minor to the dismissal hearing to discuss any services that may be available to the minor after jurisdiction is terminated. Requires the court refer the minor for evaluation as an imminently dangerous person or person with other mental health disorder, if appropriate.
    
41. Prohibits secure confinement beyond six months from the finding of incompetence, except as provided below. Requires the court to consider all of the following in making the determination:
42. Where the minor will have the best chance of obtaining competence.
43. Whether the placement is the least restrictive setting appropriate for the minor.
44. Whether alternatives to secure confinement have been identified and pursued and why alternatives are not available or appropriate.
45. Whether the placement is necessary for the safety of the minor or others.
    
46. Requires the court, if the court determines, upon consideration of these factors, that it is in the best interests of the minor and the public’s safety for the minor to remain in secure confinement, to state the reasons on the record.
47. Authorizes the court to consider whether it is necessary and in the best interests of the minor and the public’s safety to order secure confinement of a minor for up to an additional year, not to exceed 18 months from the finding of incompetence, only in cases where the petition involves an offense listed in Section 707 (b).
48. Provides that the presiding judge of the juvenile court, the probation department, the county mental health department, the public defender and other entity that provides representation for minors, the district attorney, the regional center, if appropriate, and any other participants that the presiding judge shall designate, shall develop a written protocol describing the competency process and a program to ensure that minors who are found incompetent receive appropriate remediation services.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• Remediation services: Unknown, potentially-significant costs in the hundreds of thousands of dollars to county mental health departments to provide, or contract out for, new or a higher level of remediation services to minors as specified in this bill. If, in any given year, county mental health departments are providing, or contracting for, remediation services to 500 minors for one month with a cost of $1,900 per child, the costs of this bill would be $950,000. To the extent that the Commission on State Mandates determines that this bill imposes a new or higher level of service required of local agencies, the state would be required to reimburse those costs from the General Fund. (Local funds/General Fund)
• Court: Minor and absorbable costs (General Fund*) to the court to determine a minor’s competency under the revised procedures. Minor and absorbable costs to the Judicial Council to establish a new Rule of Court.

*Trial Court Trust Fund

SUPPORT: (Verified 8/16/18)

Chief Probation Officers of California (source)

California Probation, Parole and Correctional Association

California Public Defenders Association

OPPOSITION: (Verified 8/16/18)

California District Attorneys Association

Los Angeles County District Attorney’s Office

ASSEMBLY FLOOR: 77-0, 5/8/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Medina, Patterson, Ting

Prepared by:

8/19/18 13:47:18

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 1214 (Mark Stone) - Juvenile proceedings: competency

Bill Summary:

AB 1214 would revise the procedures related to mental competency determination and remediation with respect to minors who are charged with a crime.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 16, 2018

Fiscal Impact:

• Remediation services: Unknown, potentially-significant costs in the hundreds of thousands of dollars to county mental health departments to provide, or contract out for, new or a higher level of remediation services to minors as specified in this bill. If, in any given year, county mental health departments are providing, or contracting for, remediation services to 500 minors for one month with a cost of $1,900 per child, the costs of this bill would be $950,000. To the extent that the Commission on State Mandates determines that this bill imposes a new or higher level of service required of local agencies, the state would be required to reimburse those costs from the General Fund. (Local funds/General Fund)
• Court: Minor and absorbable costs (General Fund*) to the court to determine a minor’s competency under the revised procedures. Minor and absorbable costs to the Judicial Council to establish a new Rule of Court.

*Trial Court Trust Fund

Author Amendments:

Specify the requirement of the court to hold an evidentiary hearing on if the minor is remediated or able to remediate within six months of only the initial receipt of a recommendation, as specified.

-- END --

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 1214 (Mark Stone) - Juvenile proceedings: competency

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 1214 would revise the procedures related to mental competency determination and remediation with respect to minors who are charged with a crime.

Fiscal Impact:

• Remediation services: Unknown, potentially-significant costs in the hundreds of thousands of dollars to county mental health departments to provide, or contract out for, new or a higher level of remediation services to minors as specified in this bill. If, in any given year, county mental health departments are providing, or contracting for, remediation services to 500 minors for one month with a cost of $1,900 per child, the costs of this bill would be $950,000. To the extent that the Commission on State Mandates determines that this bill imposes a new or higher level of service required of local agencies, the state would be required to reimburse those costs from the General Fund. (Local funds/General Fund)
• Court: Minor and absorbable costs (General Fund*) to the court to determine a minor’s competency under the revised procedures. Minor and absorbable costs to the Judicial Council to establish a new Rule of Court.

*Trial Court Trust Fund

Background:

Existing law authorizes, during the pendency of any juvenile proceeding, the minor’s counsel or the court to express a doubt as to the minor’s competency. The proceedings are to be suspended if the court finds substantial evidence raises a doubt as to the minor’s competency. Upon suspension of proceedings, the court is required to order that the question of the minor’s competence be determined at a hearing and to appoint an expert, as specified, to evaluate whether the minor suffers from a mental disorder, developmental disability, developmental immaturity, or other condition and, if so, whether the condition or conditions impair the minor’s competency.

Proposed Law:

This bill would:

• Revise and recast competency determination provisions to, among other things, expand upon the duties imposed upon the expert during his or her evaluation of a minor whose competency is in doubt, as specified.
• Allow the district attorney or minor’s counsel to retain or seek the appointment of additional qualified experts with regard to determining competency, as specified.
• Require Judicial Council, in conjunction with specified stakeholders including judges, defense counsel, district attorneys, and chief probation officers, adopt a rule of court relating to the qualifications of experts examining the minor’s competency, as specified.
• Require the court to dismiss a petition that contains only misdemeanor offenses against a minor who the court finds incompetent.
• Require the court to order a minor who is found incompetent and likely to be remediated to a remediation program for up to six months, with the requirement to order the minor to the remediation program for an additional six months if he or she still remains incompetent but is likely to be remediated, but in no longer than a total of one year.
• Prohibit placement of an incompetent minor in secure confinement beyond six months from the finding of incompetency, except that the court may consider if it is necessary and in the best interests of the minor and public safety to order secure confinement of a minor for up to an additional year, not exceeding eighteen months from the finding of incompetency if the petition involves an offense listed in Welfare and Institutions Code section 707, subdivision (b).

Related Legislation:

AB 689 (Obernolte, 2017) and AB 935 (Stone, 2017), which was substantially similar to this bill, would have revised the procedure to determine the mental competence of a minor charged with a crime. AB 689 was held on the Suspense File of the Assembly Committee on Appropriations. AB 935 was vetoed by the governor, who raised concerns “with the rare instances in which youth are accused of very serious crimes” and “encourage[d] further review as to how these situations may be accounted for while preserving the author's underlying intent.”

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 1214 Hearing Date: June 26, 2018

Subject: Juvenile Proceedings: Competency

HISTORY

Source: Chief Probation Officers of California

Prior Legislation: AB 935 (Stone), vetoed in 2017

AB 689 (Obernolte), held in Assembly Appropriations 2017

AB 2695 (Obernolte), held in Assembly Appropriations 2016

SB 368 (Liu), Ch. 471, Stats. of 2011

AB 2212 (Fuentes), Ch. 671, Stats. of 2010

Support: California Public Defenders Association

Opposition: California District Attorneys Association

Assembly Floor Vote: Not relevant

PURPOSE

The purpose of this bill is to revise the procedure used to determine the mental competence of a juvenile charged with a crime.

Existing law provides that during any juvenile proceeding, the minor’s counsel or the court may express a doubt as to the minor’s competency. (Welf. & Inst. Code, § 709, subd. (a).)

Existing law specifies that a minor is incompetent to proceed if he or she lacks sufficient present ability to consult with counsel and assist in preparing his or her defense with a reasonable degree of rational understanding, or lacks a rational as well as factual understanding, of the nature of the charges or proceedings against him or her. If the court finds substantial evidence that raises a doubt as to the minor’s competency, the proceedings shall be suspended. (Welf. & Inst. Code, § 709, subd. (a).)

Existing law provides that upon suspension of proceedings, the court shall order that the question of the minor’s competence be determined at a hearing. (Welf. & Inst. Code, § 709, subd. (b).)

Existing law requires the court to appoint an expert to evaluate whether the minor suffers from a mental disorder, developmental disability, developmental immaturity, or other condition and, if so, whether the condition or conditions impair the minor’s competency. The expert is required to have expertise in child and adolescent development, and training in the forensic evaluation of juveniles, and to be familiar with competency standards and accepted criteria used in evaluating competence. The Judicial Council is required to develop and adopt rules for the implementation of these requirements. (Welf. & Inst. Code, § 709, subd. (b).)

Existing law requires that if the minor is found to be incompetent by a preponderance of the evidence, all proceedings are to remain suspended for a period of time that is no longer than reasonably necessary to determine whether there is a substantial probability that the minor will attain competency in the foreseeable future, or the court no longer retains jurisdiction. (Welf. & Inst. Code, § 709, subd. (c).)

Existing law provides that during the time proceedings are suspended, the court may make orders that it deems appropriate for services that may assist the minor in attaining competency. The court may rule on motions that do not require the participation of the minor in the preparation of specified motions. (Welf. & Inst. Code, § 709, subd. (c).)

Existing law provides that if the minor is found to be competent, the court may proceed commensurate with the court’s jurisdiction. (Welf. & Inst. Code, § 709, subd. (d).)

Existing law requires the court to appoint the director of a regional center for developmentally disabled individuals to evaluate the minor if the expert believes the minor is developmentally disabled. The director of the regional center, or his or her designee, is required to determine whether the minor is eligible for services under the Lanterman Developmental Disabilities Services Act, and to provide the court with a written report informing the court of his or her determination. (Welf. & Inst. Code, § 709, subd. (f).)

Existing law states that an expert’s opinion that a minor is developmentally disabled does not supersede an independent determination by the regional center whether the minor is eligible for services under the Lanterman Developmental Disabilities Services Act. (Welf. & Inst. Code, § 709, subd. (g).)

This bill requires the court to suspend all proceedings and make a determination of competence whenever the court has a doubt that a minor who is subject to any juvenile proceedings is mentally competent.

This bill provides that a minor is mentally incompetent if he or she lacks sufficient present ability to consult with counsel and assist in preparing his or her defense with a reasonable degree of rational understanding, or lacks a rational as well as factual understanding of the nature of the charges or proceedings against him or her. Specifies that incompetency may result from the presence of any condition or conditions, including, but not limited to, mental illness, mental disorder, developmental disability, or developmental immaturity. Provides that the juvenile competency statute applies to a minor who is alleged to come within the jurisdiction of the court pursuant to Welfare and Institutions Code Section 601 or 602.

This bill allows the court to receive information from any source regarding the minor’s ability to understand the proceedings. The minor’s counsel or the court may express a doubt as to the minor’s competency. Requires the proceedings to be suspended if the court finds substantial evidence raises a doubt as to the minor’s competency.

This bill requires the court, unless the parties stipulate to a finding that the minor lacks competency, or the parties are willing to submit on the issue of the minor’s lack of competency, to appoint an expert to evaluate the minor and determine whether the minor suffers from a mental illness, mental disorder, developmental disability, developmental immaturity, or other condition affecting competency and, if so, whether the minor is incompetent, as defined.

This bill requires the expert to have expertise in child and adolescent development and forensic evaluation of juveniles for purposes of adjudicating competency, to be familiar with competency standards and accepted criteria used in evaluating juvenile competency, and to be familiar with competency remediation for the condition or conditions affecting competency in the particular case.

This bill requires the expert to personally interview the minor and review all of the available records provided, as specified. Requires the expert to consult with the minor’s counsel and any other person who has provided information to the court regarding the minor’s lack of competency, to gather a developmental history of the minor, to administer age-appropriate testing specific to the issue of competency, unless the facts of the particular case render testing unnecessary or inappropriate. Requires the expert to be proficient in the language preferred by the minor, or, if that is not feasible, the expert must employ the services of a certified interpreter and use assessment tools that are linguistically and culturally appropriate for the minor.

This bill requires the expert to submit a written report that provides an opinion on whether the minor has the sufficient present ability to consult with his or her counsel with a reasonable degree of rational understanding and whether he or she has a rational and factual understanding of the proceedings against him or her. Requires the expert to state the basis for these conclusions.

This bill provides that if the expert concludes that the minor lacks competency, the expert is required to give his or her opinion on whether the minor is likely to attain competency in the foreseeable future, and if so, make recommendations regarding the type of services that would be effective in assisting the minor in attaining competency.

This bill requires the Judicial Council, in conjunction with specified stakeholders, to adopt a rule of court identifying the training and experience needed for an expert to be competent in forensic evaluations of juveniles. Requires the Judicial Council to develop and adopt rules for the implementation of the other requirements involving the minor’s competency.

This bill prohibits the use of statements made to the appointed expert during the minor’s competency evaluation and statements made by the minor to mental health professionals during the remediation proceedings, and any fruits of these statements, in any other hearing against the minor in either juvenile or adult court.

This bill allows the district attorney or minor’s counsel to retain or seek the appointment of additional qualified experts who may testify during the competency hearing. Requires the expert’s report and qualifications to be disclosed to the opposing party within a reasonable time before, but no later than five court days before, the hearing.

This bill provides that if disclosure is not made, the court is authorized to make any order necessary for enforcement, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of the expert or consideration of the expert’s report upon a showing of good cause, or any other lawful order.

This bill provides that if, after disclosure of the report, the opposing party requests a continuance in order to further prepare for the hearing and shows good cause for the continuance, the court shall grant a continuance for a reasonable period of time. Provides that nothing in this subsection allows a privately retained or appointed district attorney qualified expert to perform a competency evaluation on a minor without an order from the juvenile court after petitioning the court for such purpose in accord with the Civil Discovery Act.

This bill requires the court to appoint the director of a regional center for developmentally disabled individuals, as described, or his or her designee, to evaluate the minor if the expert believes the minor is developmentally disabled. The director of the regional center, or his or her designee, is required to determine whether the minor is eligible for services under the Lanterman Developmental Disabilities Services Act, and to provide the court with a written report informing the court of his or her determination. The court’s appointment of the director of the regional center for determination of eligibility for services shall not delay the court’s proceedings for determination of competency.

This bill provides that an expert’s opinion that a minor is developmentally disabled does not supersede an independent determination by the regional center whether the minor is eligible for services under the Lanterman Developmental Disabilities Services Act.

This bill provides that this section shall not be interpreted to authorize or require either of the following:

1. The placement of a minor who is incompetent in a developmental center or community facility operated by the State Department of Developmental Services without a determination by a regional center director, or his or her designee, that the minor has a developmental disability and is eligible for services under the Lanterman Developmental Disabilities Services Act.
2. Determinations regarding the competency of a minor by the director of the regional center or his or her designee.

This bill requires that the question of the minor’s competency be determined at an evidentiary hearing unless there is a stipulation or submission by the parties on the findings of the expert the the minor is incompetent. Requires that it is presumed that the minor is mentally competent, unless it is proven by a preponderance of the evidence that the minor is mentally incompetent. If the minor is under 14 years of age at the time of the commission of the alleged offense, the court shall make a determination as to the minor’s capacity prior to deciding the issue of competency.

This bill requires the court to reinstate proceedings and proceed commensurate with the court’s jurisdiction if the court finds the minor to be competent.

This bill provides that if the court finds, by a preponderance of evidence, that the minor is incompetent, all proceedings are to remain suspended for a period of time that is no longer than reasonably necessary to determine whether there is a substantial probability that the minor will attain competency in the foreseeable future, or the court no longer has jurisdiction and the case must be dismissed.

This bill provides that if the minor is found to be incompetent and the petition contains only misdemeanor offenses, the petition shall be dismissed.

This bill requires the court, upon a finding of incompetency, to refer the minor to services designed to help the minor attain competency unless the court finds that competency cannot be achieved within the foreseeable future. Authorizes the court to refer the minor to treatment services to assist in remediation which may include, but are not limited to, mental health services, treatment for trauma, medically supervised medication, behavioral counseling, curriculum-based legal education, or training in socialization skills, consistent with any laws requiring consent. Requires that service providers and evaluators adhere to the standards stated in this section and the California Rules of Court. Requires that services be provided in the least restrictive environment consistent with public safety, as determined by the court.

This bill provides that a finding of incompetency alone shall not be the basis for secure confinement.

This bill requires that the minor be returned to court at the earliest possible date. Requires the court to review remediation services at least every 30 calendar days for minors in custody and every 45 calendar days for minors out of custody prior to the expiration of the total remediation period, as specified.

This bill provides that if the minor is in custody, the county mental health department must provide the court with suitable alternatives for the continued delivery of remediation services upon release from custody as part of the court’s review of remediation services. Requires the court to consider appropriate alternatives to juvenile hall confinement, including, but not limited to, all of the following:

1. Developmental centers.
2. Placement through regional centers.
3. Short-term residential therapeutic programs.
4. Crisis residential programs.
5. Civil commitment.
6. Foster care, relative placement, or other nonsecure placement.
7. Other residential treatment programs.

This bill provides that the court may make any orders necessary to assist with the delivery of remediation services in an alternative setting to secure confinement.

This bill requires the court, upon receipt of the recommendation by the designated person or entity, to hold a 6-month evidentiary hearing on whether the minor is remediated or is able to be remediated unless the parties stipulate to, or agree to the recommendation of, the remediation program.

This bill provides that if the recommendation is that the minor has attained competency, and if the minor disputes that recommendation, the burden is on the minor to prove by a preponderance of evidence that he or she remains incompetent.

This bill provides that if the recommendation is that the minor is unable to be remediated and if the prosecutor disputes that recommendation, the burden is on the prosecutor to prove by a preponderance of evidence that the minor is remediable. Provides that if the prosecution contests the evaluation of continued incompetence, the minor shall be presumed incompetent and the prosecution shall have the burden to prove by a preponderance of evidence that the minor is competent.

This bill provides that if the court finds that the minor has been remediated, the court shall reinstate the proceedings.

This bill specifies that if the court finds that the minor has not yet been remediated, but is likely to be remediated within six months, the court shall order the minor to return to the remediation program. The total remediation period shall not exceed one year from the finding of incompetency. Provides that secure confinement shall not exceed the limit specified below.

This bill states that if the court finds that the minor will not achieve competency within six months, the court shall dismiss the petition. Permits the court to invite persons and agencies with information about the minor, including, but not limited to, the minor and his or her attorney, the probation department, parents, guardians, or relative caregivers, mental health treatment professionals, the public guardian, educational rights holders, education providers, and social services agencies, to the dismissal hearing to discuss any services that may be available to the minor after jurisdiction is terminated. Requires the court refer the minor for evaluation as an imminently dangerous person or person with other mental health disorder, if appropriate.

This bill prohibits secure confinement beyond six months from the finding of incompetence, except as provided below. Requires the court to consider all of the following in making the determination:

1. Where the minor will have the best chance of obtaining competence.
2. Whether the placement is the least restrictive setting appropriate for the minor.
3. Whether alternatives to secure confinement have been identified and pursued and why alternatives are not available or appropriate.
4. Whether the placement is necessary for the safety of the minor or others.
   

This bill requires the court, if the court determines, upon consideration of these factors, that it is in the best interests of the minor and the public’s safety for the minor to remain in secure confinement, to state the reasons on the record.

This bill authorizes the court to consider whether it is necessary and in the best interests of the minor and the public’s safety to order secure confinement of a minor for up to an additional year, not to exceed 18 months from the finding of incompetence, only in cases where the petition involves an offense listed in Section 707 (b).

This bill provides that the presiding judge of the juvenile court, the probation department, the county mental health department, the public defender and other entity that provides representation for minors, the district attorney, the regional center, if appropriate, and any other participants that the presiding judge shall designate, shall develop a written protocol describing the competency process and a program to ensure that minors who are found incompetent receive appropriate remediation services.

COMMENTS

1. Need for This Bill

According to the author:

AB 1214 would establish timelines and processes relating to the determination of competency in court proceedings and the evaluation and delivery of remediation services. While existing law establishes juvenile competency and sets forth guidelines for these proceedings, there remain some operational ambiguities among practitioners relative to the types of remediation services to be delivered, who is the appropriate entity to deliver them, and where a youth will receive those services and for how long. This bill seeks to provide additional guidance around these questions.

The practical impact is that there are times in which juveniles are remaining in the hall without clear timelines governing the length of remediation services. It is important that not only do these vulnerable kids receive appropriate services, but that they do so within a reasonable time frame in order to get them out of the hall and in proper placement and care going forward.

1. Current Juvenile Competency Standards and Procedures

The Due Process Clause of the U.S. Constitution prohibits the criminal prosecution of a defendant who is not mentally competent to stand trial. An adult is mentally incompetent if “as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (Pen. Code, § 1367, subd. (a).) While those same factors are considered in evaluating the competency of a minor, a minor’s developmental maturity is also considered when determining whether he or she is competent. Unlike an adult, a minor may be found to be incompetent based on developmental immaturity alone. (See Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847.)

In 2010, California enacted AB 2212 (Fuentes, Chapter 671) which created the existing procedure and standards for handling incompetent minors before the juvenile court. The language of that statute created some procedural gaps regarding how a juvenile should be treated if they are found to be incompetent.

1. Differences Between Adults and Juveniles With Respect to Cognitive Abilities

Researchers in the science of human development generally agree that adolescents differ from adults. “The evidence now is strong that the brain does not cease to mature until the early 20s in those relevant parts that govern impulsivity, judgment, planning for the future, foresight of consequences, and other characteristics that make people morally culpable . . . Indeed, age 21 or 22 would be closer to the ‘biological’ age of maturity.” (Adolescent Brain Development and Legal Culpability, American Bar Assn. Criminal Justice Section, Juvenile Justice Center (Winter 2003).)

The difference between juveniles and adults with respect to cognitive ability is at the heart of the Timothy J. decision, supra. In that case, the Court stated:

As a matter of law and logic, an adult’s incompetence to stand trial must arise from a mental disorder or developmental disability that limits his or her ability to understand the nature of the proceedings and to assist counsel. (internal citation omitted.) The same may not be said of a young child whose developmental immaturity may result in trial incompetence despite the absence of any underlying mental or developmental abnormality.

Dr. Edwards testified that minors are different from adults because their brains are still developing and as myelination occurs during puberty, the minor develops the ability to think logically and abstractly. Both experts concluded that because of his age, [the minor’s] brain has not fully developed and he was unable to think in those ways.

Their conclusions are supported by the literature, which indicates that there is a relationship between age and competency to stand trial and that an adolescent’s cognitive, psychological, social, and moral development has a significant biological basis. (Steinberg, Juveniles on Trial: MacArthur Foundation Study Calls Competency into Question (2003) 18 Crim. Just. supra, 20, 21.) While many factors affect a minor’s competency to stand trial, “the younger the juvenile defendant, the less likely he or she will be to manifest the type of cognitive understanding sufficient to satisfy the requirements of the Dusky standard.” (internal citation omitted.)

1. Governor’s Veto

AB 1214 is substantially similar to a bill that was vetoed last year. AB 935 (Stone) would have revised the existing juvenile competency procedures. In his veto message, Governor Brown wrote:

I applaud the author for addressing a subject that is in need of review, and I support finding a solution to address any gaps in the procedures for juveniles who are found not to be competent to face court proceedings.

I am concerned, however, with the rare instances in which youth are accused of very serious crimes. I encourage further review as to how these situations may be accounted for while preserving the author’s underlying intent.

1. Argument in Support

According to the bill’s sponsor, the Chief Probation Officers of California:

The California Legislature enacted juvenile competency proceedings in 2010 by the passage of AB 2212 (Fuentes, Statutes of 2010, Chapter 671). Prior to the passage of this bill, the only guidance for determining legal competency for juveniles was found in California Rules of Court and case law. Currently, there are no specific timelines for juveniles who are found incompetent whereas there are clear and structured processes in the adult system.

Under existing law, youth may be deemed incompetent to participate in their court proceedings as a result of a mental disorder, developmental disability, developmental immaturity, or other conditions that result in the inability to meaningfully understand the proceedings, the charges against them, or work with counsel in their defense. The law also set forth processes for the provision of remediation services upon a determination of incompetency.

Although the prior legislation represented a giant step forward, clear timelines and processes are necessary to balance public safety with the treatment needs of the accused. AB 1214 will start the process to give mentally ill youth in the juvenile justice system the same rights we afford adults in our criminal justice system.

Absent clear timelines governing the process, youth deemed incompetent can be housed in juvenile halls for longer than they would have served as a sentence for their original offense.

We have experienced cases where youth have remained in the hall for periods well exceeding a year and sometimes up to two years or more pending the delivery of remediation services. This length of time in a juvenile hall for a youth that has not yet been adjudicated, and may not become competent to continue in their proceedings, does not appropriately address the mental health or developmental needs of the youth. . . .

. . .AB 1214 sets forth a sex month minimum time in custody and one year for the provision of remediation services. Research on remediation services suggests a majority of youth can be remediated prior [to] a year if they are able to be remediated. The bill also establishes a process…to identify alternatives to custody so the youth may continue to receive remediation services in a setting that best addresses their specific needs. . . .Although very rare, the bill does recognize there may be circumstances which necessitate a custodial setting and addresses this issue by allowing a petition to the court for a civil commitment pursuant to WIC 5300 et seq., or WIC 6550 et seq. if it’s determined a youth’s offense pertains to a serious or violent crime or has a mental health condition or intellectual disability. Further, in cases involving 707b petitions, a youth may remain in the hall up to 18 months upon the finding of incompetency...We believe these provisions strike the balance between the safety of the youth and community and ensures the youth do not remain in a custodial setting longer than they would if they had been adjudicated.

. . .[I]t is imperative we look to alternatives to custody where appropriate and are providing remediation services in the most suitable, least restrictive setting for the safety of the youth and the community. . . .

AB 1214 builds upon existing juvenile competency statute by identifying the types of remediation services provided to juveniles, the delivery system protocols, and sets forth clear timelines for the delivery of restoration and remediation services. This is a vital piece of legislation in order for California to move forward and appropriately serve vulnerable youth in the juvenile justice system.

1. Argument in Opposition

According to the California District Attorneys Association:

Assembly Bill 1214…is largely identical to…Assembly Bill 935 from this session, which was vetoed last year. This bill changes the procedure by which a court determines the mental incompetence of juveniles charged with crimes, and the consequences if the court determines that the minor was not competent. While we share your goal of helping mentally ill minors avoid long stints in juvenile hall, we must object to the breadth of your proposal.

Under AB 1214, a court would be required to dismiss any petition in which only misdemeanors are alleged, simply upon an initial determination of incompetence. There are already counties within the state that typically no not detain such individuals and, in fact, several counties have established Restoration of Competency programs for out-of-custody minors accused of misdemeanors. Although we understand the desire to release such individuals from custody, we believe that mandatory dismissal of the charges goes too far.

Further, the court is required to dismiss felony charges if a service provider opines that a minor is unlikely to be restored within six months. We do not believe that this is in the interest of public safety, as nothing in the bill limits the types of felonies to which this would apply. While there is a provision for an additional year of secure confinement, an individual who is charged with a violent felony like rape or murder could still have his or her charges dropped in a relatively short time. This does not give adequate consideration to victims, the defendant’s family, or public safety in general.

. . .AB 1214 requires that an incompetent minor accused of murder, and who has undergone only 18 months of treatment, immediately be placed somewhere besides juvenile hall. However, there is no Murphy Conservatorship available to juveniles who are pending felony charges and are determined to be dangerous to others, as there are for similarly situated adults. Where and under what authority, once criminal charges are dismissed, will this dangerous juvenile be placed? What happens if a bed is not available (especially a bed in a secure facility for a dangerous and violent minor)? . . .

. . .AB 1214 provides no funding mechanism for probation, county mental health, or Regional Centers to ensure that treatment and facilities are available to chronically mentally ill minors after their cases are dismissed. . . .

-- END --

Date of Hearing: May 2, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1214

Author:(Mark Stone) – As Amended Ver:March 28, 2017

PROPOSED CONSENT

SUBJECT: LEVYING OFFICER ELECTRONIC TRANSACTIONS ACT

KEY ISSUE: should TECHNICAL and clarifying CHANGES BE MADE TO THE levying officer electronic transactions act TO help facilitate a levying officer’s request for the paper version of a document previously transmitted electronically?

SYNOPSIS

Existing law, the Levying Officer Electronic Transaction Act (the Act), provides procedures for sheriffs and marshals (levying officers) to send, receive, and maintain certain electronic records and documents relating to their duties in enforcing civil judgments. The stated purpose of the Act was to provide a means for the Sheriff and Marshal to reduce civil law enforcement operating costs by migrating from a paper-based business model to a modern system that makes extensive use of electronic records. Among other things, the Act provides that upon receiving an electronic transmission of documents from a person, if the levying officer wants the paper version of the document delivered as well, the officer has to mail to the sender his request for the paper version of the document. However, the relevant portion of the Act does not require the sender's mailing address to be provided with transmission of the electronic record—only the name and electronic address of the sender and the name and electronic address or fax number of the levying officer. Without a mailing address provided by the sender of an electronic record, how does the levying officer know what address to use in order to mail the request for the paper version? Accordingly, this simple bill clarifies the operation of CCP Section 263.4 by requiring a person transmitting an electronic record to a levying officer to also include his or her mailing address with the transmission. This enables the levying officer to mail the request for the paper version of the document, if needed, as specified by existing law. Because of this mailing requirement, this bill also clarifies that the levying officer's request is a written request. This bill has no known opposition.

SUMMARY: Clarifies rules for transmitting an electronic record to a levying officer, and a subsequent request by the officer for the paper version of the record sent. Specifically, this bill:

1. Requires an electronic record transmitted to a levying officer to include, in addition to that information already required, the mailing address of the sender transmitting the electronic record.
2. Clarifies that a request mailed by a levying officer to the sender of an electronic record, asking for delivery of the paper version of the record, must be a written request.

EXISTING LAW:

1. Authorizes sheriffs and marshals (also referred to as “levying officers”) to utilize an information processing system to create, generate, send, receive, store, display, retrieve, or process information, electronic records, and documents when based on industry standards, and only to the extent that the levying officer has the resources and technological capacity to do so. (Code of Civil Procedure Section 263.29 (a). All further references are to this code unless otherwise stated.)
2. Defines “electronic record” to mean a document or record created, generated, sent, communicated, received, or stored by electronic means. (Section 263.1 (b).)
3. Permits a levying officer to create, store, print, or transmit an electronic record in the place of, and in the same manner as, the paper record or document upon which the electronic record is based. (Section 263.4 (a).)
4. Requires an electronic record transmitted to a levying officer to be accompanied by all of the following information: (a) The name of the sender; (b) The electronic address of the sender; (c) The name of the levying officer; and (d) The electronic address or fax number of the levying officer. (Section 263.4 (b).)
5. Requires the person transmitting the electronic record to the levying officer to do both of the following:
   1. Retain the paper version of the record or document.
   2. Deliver the paper version of the record or document to the levying officer within five days after a request to do so has been mailed to the sender by the levying officer. (Section 263.4 (a).)
6. Provides that none of these provisions shall be construed to require compliance by a court or levying officer unless the court and the levying officer have (1) jointly determined that both the court and the sheriff’s department have the resources and the technological capacity to do so, and (2) have mutually agreed to electronically act upon documents as provided in this chapter. (Section 263 (b).)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: This bill makes technical and clarifying changes to the Levying Officer Electronic Transaction Act (the Act), specifically, regarding rules for transmitting an electronic record to a levying officer, and a subsequent request by the officer for the paper version of the record sent.

Background. In 2010, the Legislature approved and the Governor signed into law AB 2394 (Ch. 680, Stats. 2010), known as the Levying Officer Electronic Transaction Act. According to this Committee's analysis of AB 2394, the Act represented "a comprehensive effort to adapt the Code of Civil Procedure to modern information technology and promote systemic migration away from a paper-based model of civil law enforcement." Among other things, the Act established new procedures for sheriffs and marshals (levying officers) to send, receive, and maintain certain electronic records and documents relating to their duties in enforcing civil judgments.

According to the author of AB 2394, the purpose of the bill was:

[T]o provide a means for the Sheriff and Marshal to reduce civil law enforcement operating costs by migrating from a paper-based business model to a modern system that makes extensive use of electronic records, e.g., digitized writs, and communication, e.g., websites and email. Today's information technologies increase productivity and minimize errors by avoiding data entry redundancies. The reduced processing time for electronic documents and data exchanged between courts, sheriffs and marshals, and litigants presents an opportunity for staff to do more with fewer people.

Proponents of AB 2394 at the time, including the Los Angeles County Sheriff's Department and California State Sheriffs' Association, stated that: "there are significant potential time and cost savings associated with increased use of electronic records and documents, and that this bill will increase the efficiency of the Sheriff's Office by saving countless number of trips to the courthouse or the county recorder's office to transport original paper versions of documents that may otherwise be transmitted by fax or email."

As the legislative history shows, the Act contemplates that the sender of the electronic record could very well be a court clerk or employee, or could be a private litigant. It should be noted that, by its own provisions, nothing in the Act requires a court or levying officer to comply with any of its provisions, unless the court and the levying officer have done both of the following: (1) jointly determined that both the court and the sheriff’s department have the resources and the technological capacity to do so; and (2) mutually agreed to electronically process documents, as provided in the Act. In other words, no court shall be required by the Act to receive and process electronic records or documents from the sheriff unless that court has mutually agreed with the sheriff that both parties are able and ready to abide by these provisions. It is not known how many of the 58 trial courts in California (i.e. in each county) currently have an agreement with the local county sheriff to receive and process electronic records.

Fixing an apparent inconsistency in the Act. Existing provisions of the Act, CCP Section 263.4, allow levying officers to create, store, print, or transmit electronic records in place of, and in the same manner as, the paper record or document upon which it is based. It also requires a person transmitting an electronic record to both retain the paper version and deliver the paper version to the levying officer "within five days after a request to do so has been mailed to the sender by the levying officer." (emphasis added) (Section 263.4 (b).)

Upon receiving an electronic transmission of documents from a person, the law provides that if the levying officer wants to obtain a paper original of the document, then the officer has to mail a request for the paper version to the sender. The law is very clear that when a document is required "to be mailed", the plain meaning is that the physical document is deposited in the mail, to be delivered by the U.S. Postal Service (or possibly a private delivery carrier.) However, Section 263.4 does not require the sender's mailing address to be provided with transmission of the electronic record—only the name and electronic address of the sender and the name and electronic address or fax number of the levying officer.

Without a mailing address provided by the sender of an electronic record, how does the levying officer know what address to mail the request for the paper version? Accordingly, this simple bill clarifies the operation of CCP Section 263.4 by requiring a person transmitting an electronic record to a levying officer to also include his or her mailing address with the transmission. This enables the levying officer to mail the request for the paper version of the document, if needed, as specified by existing law.

It is not entirely clear why the Act requires this request to be mailed to the sender, when it could be made in many cases by a reply to the email message instead. It may be, for example, that a written, mailed request is preferred because that better ensures actual delivery to the original sender, or that a paper trail for this transaction is preferred to an email exchange. In any case, this bill is consistent with the intent of the Act, by honoring the requirement that the request be mailed to the sender, not sent electronically. Because of this mailing requirement, this bill also clarifies that the levying officer's request must be in writing.

REGISTERED SUPPORT / OPPOSITION:

Support

None on file

Opposition

None on file

Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334