Capacity and Competency

Question 1

Capacity

Answer 1

Requires a showing pursuant to PC 26 and Gladys R. (for a client under age 14) based on a “clear and convincing” showing

Question 2

Evidence DA Can Use to Show Capacity

Answer 2

Conversations w/ parents about wrongfulness, attempts to coerce victim, attempts to conceal conduct or flee, attempts to shift blame/minimize involvement, previously admitted petitions for a similar offense

Question 3

Gladys R and Sex Offenses

Answer 3

Because youth accused of committing sex offenses are often victims of sexual abuse and some parents do not discuss sexuality with their clients, they may not truly understand the wrongfulness of the alleged sexual conduct

Question 4

Gladys R and Self Defense

Answer 4

Youth generally understand they can defend themselves, but the legal concept of “no more force than reasonably necessary “ is too abstract and subtle for youth under 14 (In re VH - DO NOT CITE but model argument after this)

Question 5

Standard for Declaring a Doubt

Answer 5

Same as adult - cannot understand nature of the charges and proceedings OR cannot rationally assist w/ defense (WIC 709(a))

Question 6

Basis for Doubt

Answer 6

Mental illness OR development delay (Timothy J v Sup Ct)

Question 7

Is There a Doubt?

Answer 7

Can be based on conversations alone, but probably best to appoint an expert to perform a general psych eval. HOWEVER, if you try and do this, court may suspend proceedings and appoint a neutral expert, which will NOT be covered by privilege

Question 8

Competency Proceedings

Answer 8

Court appoints a neutral expert, who must personally interview client, review all records, consult w/ attorney (you), gather a developmental history, and administer age-appropriate tests (WIC 709(b)(3))

Question 9

Records and Tests

Answer 9

Experts typically administer the JACI - Judicial Adjudicative Competence Interview. You need: IEP, Regional Center records, previous evaluations

Question 10

Timeline for Competency Finding

Answer 10

None set - but previous protocol was 15 days for detained youths and 30 days for non-detained youths; report due 2 days before hearing

Question 11

Disagreement w/ Expert

Answer 11

Either party may seek to appoint an additional expert (WIC 709(c))

Question 12

Burden of Proof

Answer 12

If parties do not agree w/ expert, then a hearing is held. Youth is presumed competent and incompetence must be established by a preponderance of evidence (WIC 709(c)). If youth is under 14, court must make finding under PC 26 FIRST, then move to competency.

Question 13

Incompetent, now what?

Answer 13

If only misdos, then dismissed under WIC 709(f). If court finds youth unlikely to attain competency within 6 months, the petition must be dismissed under WIC 709(h)(4). If neither of these applies, client is referred to competency remediation.

Question 14

Length of Competency Remediation

Answer 14

Court must review every 30 days if detained, every 45 days if not detained under WIC 707(g). Within 6 months, must hold a hearing. Total remediation may not exceed 1 year.

Question 15

Length of Detention For Remediation

Answer 15

No more than 6 months UNLESS it is a 707(b) offense, then 18 months.

Question 16

Sealing

Answer 16

Upon dismissal, petition should be seal under WIC 786(e)