ORIGINAL PROCEEDINGS in mandate. Robert Leventer, Juvenile Court Referee. (Super. Ct. No. GJ29441)
The opinion of the court was delivered by: Woods, J.
CERTIFIED FOR PUBLICATION
Elijah W., a minor, (hereinafter referred to as petitioner) filed a petition for writ of mandate after the trial court denied his motion to have Dr. Catherine Scarf appointed as a defense expert. We issued an Order to Show Cause on June 5, 2012. After considering the petition, the return filed by the People, the traverse filed by petitioner and all documents filed in support thereof, we conclude the superior court abused its discretion in denying petitioner's motion and grant the petition.
FACTUAL & PROCEDURAL BACKGROUND
On December 28, 2011, a wardship petition under Penal Code section 602 was filed alleging petitioner had committed one count of arson of a structure or forest (Pen. Code, § 451, subd. (c)) and one count of recklessly causing a fire of a structure or forest (Pen. Code, § 452, subd. (c)).
On March 6, 2012, petitioner, represented by the Public Defender's office, filed a motion requesting the appointment of Dr. Catherine Scarf as an expert witness "to assist counsel in conducting reasonably necessary psychological evaluations, assessments and other activities related to the presentation of the case." Dr. Scarf was not a member of the panel of psychologists or psychiatrists selected for the Juvenile Competency Pilot Program in the Pasadena juvenile courts (the JCST panel). The JCST panel had been selected in accordance with a protocol developed by the Los Angeles County Superior Court to implement Welfare and Institutions Code section 709 for the Los Angeles County Juvenile Court system .
The "Amended Competency to Stand Trial Protocol" submitted by petitioner, dated January 9, 2012 (the Protocol), provides in pertinent part: "If the court finds substantial evidence raises a doubt as to the minor's competency the court shall suspend proceedings. If the court suspends proceedings, or grants minor's request for a CST [competency to stand trial] evaluation, it shall appoint an expert from the Juvenile Competency to Stand Trial Panel (JCST Panel) under Evidence Code §730 to perform a CST evaluation. The JCST Panel shall consist of experts in child and adolescent development, who have training in the forensic evaluation of juveniles, and are familiar with the competency standards and accepted criteria used in evaluating competence.[Fn. omitted.] The Juvenile Court shall maintain a list of approved JCST Panel evaluators and appointments will be made from that list on a rotating basis."
Welfare and Institutions Code section 709, enacted in 2010 (2010 ch. 671 (AB 2212, § 1)) provides that if a court expresses a doubt as to a minor's competency to stand trial, it shall 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 shall have expertise in child and adolescent development, and training in the forensic evaluation of juveniles, and criteria used in evaluating competence. The Judicial Council shall develop and adopt rules for the implementation of these requirements." (Welf. & Inst. Code, § 709.)
Evidence Code section 730 provides: "When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required."
Petitioner's counsel filed a declaration in support of this motion in which she stated that she had telephoned the five experts on the JCST panel to determine their positions regarding the confidentiality of information they obtained during the assessment for competency process. She specifically asked each panelist's position on information regarding child abuse or neglect, or threats made to others. All of the panelists told her they would have to report to law enforcement or child welfare authorities any information of child abuse or threats pursuant to Tarasoff v. Regents of California (1976) 17 Cal.3d 425 (Tarasoff) despite any attorney-client privilege. When counsel spoke with Dr. Scarf, Dr. Scarf indicated that she would only report any information of child abuse and/or neglect or threat to the "appointing attorney."
The juvenile court denied the motion with a lengthy written opinion. It stated, inter alia, "The confidentiality issue, in the court's opinion, is merely academic. In the hundreds of [Evidence Code] §730 appointments that this court has granted, and in the thousands that have been granted by the juvenile and adult courts, this issue has never been raised. Nor, has there ever been a case brought to the court's attention where a minor has divulged child abuse or made a threat to commit a crime during a competency evaluation and the statement was later introduced in court or even prompted a report. The likelihood of this occurrence is remote because the focus of a competency evaluation is the functional ability of a minor to understand the court process. [Fn. omitted.] Unlike other evaluations, a minor's culpability or remorse is not an issue in a competency evaluation. [Fns. omitted.] [¶] The unlikelihood of this occurrence is even more remote because the focus of a competency evaluation is the functional ability of a minor to understand the court process. [Fn. omitted.] . . . [¶¶] The protocol sets up a separate panel of exceptionally qualified experts to do all [Evidence Code] §730 juvenile competency testing in the first instance. [Fn. omitted.] The protocol allows for the defense to obtain an assessment and not to disclose it unless and until a doubt is declared. The protocol allows for additional competency assessments upon a showing of good cause. The protocol does not preclude any party from obtaining further testing without court funding. . . . [¶¶] The court believes that [Welfare and Institutions Code] §709 is a fair and proper way to investigate and adjudicate juvenile competency issues. The protocol implements § 709 and affords minors added protections. Moreover, the court does not believe that utilizing the protocol impermissibly interferes with the attorney-client privilege."
In his petition, petitioner contends that the Protocol violates his right to effective assistance of counsel under the Sixth and Fourteenth Amendments of the U.S. Constitution because it does not allow for experts to be appointed pursuant to Evidence Code section 952 and because it forces minors represented by court-appointed counsel to engage experts who will not abide by the attorney-client privilege with respect to disclosure of child abuse, child neglect and/or Tarasoff threats.
The Protocol specifically indicates its purpose is to implement Welfare and Institutions Code section 709 (when a trial court expresses a doubt as to minor's competency to stand trial), but calls for the appointment of a psychotherapist under Evidence Code section 730 (appointment of an expert to testify at trial).
The Protocol provides that: "No statements, admissions, or confessions made by, or incriminating information obtained from, a minor in the courts of a [juvenile competency to stand trial] evaluation shall be admitted into evidence or used against the minor in any juvenile, criminal, or civil proceeding." It also provides that the court may order that the results of the evaluation do not need to ...