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In re Jesus G.

California Court of Appeal, Second District, Seventh Division

July 24, 2013

In re JESUS G., a minor, on Habeas Corpus.

ORIGINAL PROCEEDING, petition for writ of habeas corpus. Los Angeles County Super. Ct. No. PJ48832 Fred Fujioka, Judge.

Ronald L. Brown, Los Angeles County Public Defender, Albert J. Menaster, Rebecca Barnhart and Megan N. Gallow, Deputy Public Defenders, for Petitioner.

Collins Collins Muir Stewart, Eric Brown, Tomas A. Guterres and Melinda W. Ebelhar for Respondent County of Los Angeles Department of Probation.

WOODS, J.

Jesus G., a minor (born January 1998, hereinafter Jesus), represented by the Los Angeles County Public Defender’s Office, filed a petition for writ of habeas corpus on December 21, 2012, for his release from Central Juvenile Hall. Jesus was the subject of a wardship petition pursuant to Welfare and Institutions Code section 602 and was placed in juvenile hall. At a September 2012 hearing he was found incompetent to stand trial and remained detained. We initially denied the petition on January 9, 2013, and Jesus filed a petition for review with the Supreme Court.

The Supreme Court granted the petition for review on February 27, 2013. It ordered this court to vacate the January 9th order denying habeas relief and directed us to issue an order to show cause why Jesus’ prolonged detention without the provision of services was not in violation of the protocol issued by the Los Angeles Superior Court Juvenile Division and did not otherwise deny Jesus due process of law.

On March 6, 2013, we issued an order to show cause. The Los Angeles County Department of Probation filed a return and the Public Defender’s office filed a traverse. The traverse indicated that as of May 9, 2013, Jesus had been released and a continued hearing on competency was set for August 19, 2013.

We deny the petition for habeas corpus as moot but hold that a minor detained in Juvenile Hall pending attainment of competency must be provided with adequate services.

FACTUAL & PROCEDURAL BACKGROUND

Facts leading up to the wardship petition

In 2011, Jesus was residing with his mother (Mother), his stepfather (Stepfather), two younger brothers and a four-year-old sister. He had been born in the United States but had been brought up in Mexico while his biological father remained in the U.S. In May 2011, Mother had recently moved back to the United States to live with Stepfather. Jesus was at school in December 2011 (then 13 years old) when he told school officials he was feeling depressed and wanted to kill himself. He had attempted to cut his wrist because of physical abuse by Stepfather. He was admitted to a psychiatric hospital. During interviews at the hospital, both Jesus and Mother disclosed that he had been touching his brother Christian’s genital areas. Christian (then 12 years old) was interviewed by detectives and told them that Jesus gave him $20 and told him not to tell Mother. Christian also told an officer that Jesus had grabbed him by the wrist, forced him against the wall, and placed his penis between Christian’s legs until Jesus ejaculated. Jesus denied the allegations and said it was Christian who had touched him. Sibling Alejandro (then 10 years old), told the social worker that Jesus had come into his bathroom two times and tried to touch him on his penis, but Alejandro would not let him. Mother stated that she opened a bedroom door and observed Christian and Jesus lying on the bed, covered with a blanket. She lifted the blanket and observed that Christian’s pants were down. Jesus told Mother to leave the room.

A wardship petition under Welfare and Institutions Code section 602 was filed on December 29, 2011, which alleged two counts of committing a forcible lewd act on a child (Pen. Code, § 288, subd. (b)(1)), and two counts of an attempted forcible lewd act upon a child (Pen. Code, §§ 664/288, subd. (a)). At the time the petition was filed, Jesus was one month shy of 14 years old. Jesus was taken into custody and placed in juvenile hall.

Jesus was arraigned on December 30, 2011. The Public Defender’s Office was appointed to represent him.

Mother, who spoke Spanish only, told the probation officer in January 2012 that the whole incident was a misunderstanding as Jesus and Christian were just experimenting with their sexuality. She said once Jesus was returned home she would make arrangements so that Jesus would have his own bedroom and that she would sleep with the other children in the second bedroom, ensuring their safety. Mother denied she or stepfather physically disciplined Jesus. Mother told the probation officer she was illiterate “due to poverty” and had no family members in the country.

The Protocol

Welfare and Institutions Code section 709 provides: “During the pendency of any juvenile proceeding, the minor’s counsel or the court may express a doubt as to the minor’s competency. 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 raises a doubt as to the minor’s competency, the proceedings shall be suspended The court 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.... (c) 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. During this time, the court may make orders that it deems appropriate for services... that may assist the minor in attaining competency....”

On January 9, 2012, the Presiding Judge of the Juvenile Division of the Superior Court of Los Angeles County issued a memorandum setting forth a protocol implementing Welfare and Institutions Code section 709 regarding juvenile competency to stand trial (the Protocol).

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 (JCST Panel) under Evidence Code § 730 to perform a CST evaluation.... If the court finds the minor competent, it shall reinstate the delinquency proceedings and proceed with the case.” However, if the court finds the minor incompetent to stand trial (IST), “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.”

The Protocol then outlines the procedures to be followed if the minor is detained. If the minor is detained the court shall set an IST planning hearing within 15 calendar days. The court shall then order the Probation Department (Probation) and the Department of Children and Family of Services (DCFS) to evaluate the minor and submit a planning report. If the court finds that “there is a substantial probability” that the minor will attain competency in the foreseeable future, the court shall order Probation and the Department of Mental Health (DMH) to begin “immediate coordination” of mental health and education services to help the minor attain competency. “Providing services to attain competency may include the coordination of services from DMH, Regional Center, education agencies and any other entity that has an obligation to provide services to the minor. To do this the court, or counsel, should consider joining such entities in the court proceeding.... If the minor has not been adjudged a ward or a dependent the court may issue subpoenas for persons, or agencies, who have an obligation to provide services to the minor. [¶] The case shall be set for an Attainment of Competency Hearing within sixty days. [¶] Pending attainment of competency, minor shall be held in the least restrictive setting and may only be detained if it is a matter of immediate and urgent necessity for the protection of the minor or reasonably necessary for the protection of the person or property of another.... The court shall review the appropriateness of minor’s detention at every hearing after a finding of IST. [¶]... [¶] If the court finds that there is not a substantial probability that the minor will attain competency in the foreseeable future it shall dismiss the petition.... [¶]... [¶] At the Attainment Hearing[, ] Probation shall submit a report that documents the specific services provided to the minor and, after consultation with the service provider, whether such services have been successful in helping minor to attain competency, and, if not, whether further efforts are likely to succeed.... [¶] If the court believes that minor has attained competency it shall reinstate juvenile proceedings. If the court finds that minor is not likely to attain competency in the foreseeable future, it shall dismiss the petition.... If the court finds that further efforts at attainment would be successful, it may order these services be provided for another period of sixty days. [¶] The minor may not be held in a juvenile hall to participate in attainment services for more than one hundred and twenty days.” (Italics added.)

Competency Hearing

On May 14, 2012, Jesus’ counsel expressed a doubt as to his competence. Pursuant to the Protocol, the juvenile court suspended proceedings and appointed Dr. Timothy Collister to evaluate Jesus.

Dr. Collister performed a competency evaluation on May 30, 2012. His report stated, inter alia, that Jesus reported auditory and visual hallucinations and exhibited paranoia and suspicion. Jesus was cutting himself before hospitalization and had again attempted to cut himself while at Central Juvenile Hall. Mother was physically abused by his biological father and had a dysfunctional relationship with Stepfather. Jesus had auditory processing deficits, difficulty maintaining interpersonal relationships and acted inappropriately, with a general pervasive mood of unhappiness and depression. He had age-appropriate communication skills in Spanish but was not fluent in English. He had difficulty with attention and memory and deficits in verbal memory. It was Collister’s opinion that Jesus was “not competent within the meaning of [Welfare and Institutions Code section] 709. He has an inadequate factual and rational understanding of the criminal proceedings against him, and will not be able to assist counsel in a rational manner. His incompetence flows primarily from a mental disorder.” Dr. Collister felt it would be difficult for Jesus to rationally analyze courtroom procedures. He did not understand basic courtroom terms, or the roles of various participants in the court process, even after receiving training from Dr. Collister. Dr. Collister felt that as Jesus’ psychiatric disturbance was treated, and as his status improved, it remained possible that he could be found competent but there was not a substantial probability that this would occur.

In an Addendum dated August 9, 2012, Dr. Collister stated that after administration of a test, 81 of 100 individuals in the Presumed Incompetent group would have a greater understanding of the criminal proceedings than Jesus does.

In August 2012, the juvenile court ordered a report to be prepared pursuant to Welfare and Institutions Code section 241.1.[1] The court also ordered Probation to prepare a plan for the minor in the event he was found to be incompetent.

On September 18, 2012, the court held a hearing on Jesus’ competency. Dr. Collister testified, repeating his opinion that Jesus was not competent to stand trial, but this time he stated, “I think it’s developmental immaturity more than a mental disorder. His processing with respect to memory is at the level of a six-year-old. And so the predominant reason for his incompetence is going to be the developmental immaturity. There is a mental disorder superimposed which probably ...


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