Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NJ21662 Gibson W. Lee, Judge.
David W. German, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Appellant Davon D. claims that substantial evidence does not support the juvenile court’s finding that he was mentally competent to understand the nature of the pending juvenile court proceeding and to assist counsel in a rational manner. We find that despite the existence of conflicting evidence, substantial evidence does support the finding of mental comptence, and we affirm the judgment.
PROCEDURAL HISTORY
On September 1, 2006, the Los Angeles County District Attorney filed a petition alleging that 12-year-old Davon D. came within Welfare and Institutions Code section 602 by committing second degree robbery in violation of Penal Code section 211, a felony. Davon denied the allegations of the petition The petition was later amended to add a second count for grand theft in violation of Penal Code section 487, subdivision (c). Davon admitted this second count, and the juvenile court sustained the allegations as to the second count as true, declared the offense to be a felony, and dismissed the remaining count. The juvenile court declared Davon a ward of the juvenile court and placed him home on probation.
Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.
On October 27, 2009, a petition was filed alleging that 15-year-old Davon D. came within section 602, in count 1, by committing second degree robbery in violation of Penal Code section 211, a felony, and used a handgun within Penal Code section 12022.53, subdivision (b), causing the offense to become a serious felony (Pen. Code § 1192.7, subd. (c)(8)) and a violent felony (Pen. Code § 667.5, subd. (c)(8)); and in count 2 by committing assault with a firearm in violation of Penal Code section 245, subdivision (a)(2). Davon denied the allegations of the petition. The juvenile court ordered him to remain a ward of the court, ordered the prior home-on-probation order to remain in effect, and set the matter for an adjudication.
On February 3, 2010, Davon petitioned for a finding of incompetency. After a hearing, the juvenile court found that Davon was presently mentally competent, and ordered juvenile proceedings resumed.
On March 5, 2010, the juvenile court found the allegations as to counts 1 and 2 be true, found the special allegation pursuant to Penal Code section 12022.53, subdivision (b) to be true as to count 1, and declared counts 1and 2 to be felonies. Davon was ordered to remain a ward of the court pursuant to section 602; custody was taken from his parents and placed with the probation officer, and Davon was ordered placed in the camp-community placement program for the mid-term, with physical confinement not to exceed 16 years 8 months. Davon received 132 days of predisposition credit. Davon filed a timely notice of appeal.
FACTS
1. Competency Hearing
Defense evidence:
Dr. Robert Rome interviewed Davon, tested him on the Wechsler Intelligent Scale for Children, 4th edition, and prepared a report. The Wechsler test measures intellectual processing by 10 subtests. In areas of verbal comprehension and perceptional reasoning (ability to see and understand images), Davon scored between.2 and.5 of a percentile, meaning that he scored lower than 99.5 percent of the population. The bottom 2 percentile of the population is retarded. His total score was 58, which was at.3 percentile.
Dr. Rome also administered primary reading tests on the Woodcock-Johnson, third edition achievement test. Davon scored at the fifth grade level on word identification, in the low average range for someone attending tenth grade. On a passage comprehension test, Davon scored in the retarded range corresponding to the mid-second grade level. Davon processed rote information at the borderline or in some cases at the low average range. He was extremely low in his ability to comprehend, apply, interpret, and express himself in language.
Dr. Rome administered a violent adaptive behavior scales test. Davon’s socialization skills were at the low end of the low average range, but he showed a variety of social abilities. In communication and daily living skills, Davon was mildly deficient or retarded, and compared with other people his age was significantly lower than average. His general adaptive functioning score of 69 put Davon in the mildly deficient or mildly retarded range.
On the Beck Youth Inventory, second edition test, Davon showed fairly low self-esteem, higher anxiety, depressed reaction, and a certain degree of anger, but he did not show a general tendency toward disruptive behavior.
Academically, Davon had difficulty in his classes, and had passed only 35 out of 60 units in ninth grade. Even with special education assistance, Davon failed close to half his courses at the beginning of the tenth grade. He had learning disabilities in reading, writing, and math.
Davon reported using about $40.00 worth of marijuana a day. Dr. Rome stated that such drug use could affect his level of functioning and processing of information, which was one reason why Dr. Rome said that Davon functioned at the retarded range.
Dr. Rome’s conclusion was that Davon was in the retarded range of functioning, but cautioned that not every person who is retarded would be incompetent or unable to participate in a legal case. Dr. Rome clarified that Davon sometimes functioned at the retarded range, but did not say he was absolutely clearly retarded. Dr. Rome’s opinion was that Davon understood at the level of a seven year old, and would not be able to follow court proceedings, would not be able to provide his attorney with appropriate information in a timely way.
Prosecution Evidence:
Dr. Haig Kojian interviewed Davon, performed the Wechsler Abbreviated Scale of Intelligence test, and prepared a report. Dr. Kojian’s opinion that Davon was competent to proceed with court proceedings.
Dr. Kojian had read Dr. Rome’s report and was aware of the tests previously performed by Dr. Rome. Dr. Kojian used a different test in order to not test Davon with the same questions Dr. Rome had used. Dr. Kojian used the Wechsler Abbreviated Scale of Intelligence test, an abbreviated test with four subtests. Dr. Kojian testified that Dr. Rome’s report did not address enough of the competency issues.
Dr. Kojian also performed a Juvenile Adjudicative Competence Interview (JACI), which assesses an individual’s competence, and is used in juvenile proceedings to help determine whether a juvenile understands what is occurring and whether he is able to cooperate with his attorney. From the JACI interview, Dr. Kojian concluded that Davon met all statutory requirements, knew what was going on, and answered every question to an acceptable degree, with one exception. The exception was that Davon could not articulate and respond to a question about the District Attorney. Davon did, however, understand that the District Attorney was not working on his behalf. The JACI interview showed that Davon knew he was charged with robbery and was in trouble with the law, knew that robbery involved taking something from someone else that did not belong to him, and knew he was charged with a felony and that a felony was more serious than a misdemeanor. Davon knew that the public defender was defending him in court and understood the judge’s function. When asked if he wanted to take the case to trial or take a deal, Davon answered, “it depends on what the deal is, ” which led Dr. Kojian to believe that Davon understood the process and inquired about what deal he might receive in order to make a decision. Davon understood there were different possible dispositions, understood there was a difference between placement in camp and suitable placement, and expressed a desire to go home. Devon also said he understood what entering a guilty plea would mean.
Dr. Kojian reviewed Davon’s mental health history and his probation officer’s statements about his mental health. Dr. Kojian cited a report of an extensive mental health exam in April 2008, which stated that Davon was immediately returned to camp with the statements that he was cleared and had no psychiatric problems that would affect or infringe upon his functioning in camp. His family described Davon as a typical teenager. Dr. Kojian found nothing in any of the records showing any severe impairment consistent with mental retardation, developmental disability, or developmental issues that would affect Davon’s ability to participate in the proceedings.
Competency Ruling:
The juvenile court concluded that Davon was presently mentally competent.
2. Adjudication
After classes had ended on October 23, 2009, David Varela was walking on his high school campus, where he was a student. Varela was going to meet his baseball coach. Davon came up to him and asked him if he had a dollar. Varela answered that he did not. Davon then asked him what time it was, and Varela took out his cell phone, said it was 2:55, tried to ignore him, and kept walking. They walked a ways further toward the exit from the campus, and then Davon “got in [Varela’s] face” and said, “give me your phone.” After walking a bit further, Davon said, “I have a gun. Give me your phone.” Davon took a small, chrome gun out of his backpack, pointed it at Varela, and again said, “Give me your phone.” Varela initially said “no, ” but then decided he was not going to get shot over a phone, and gave Davon the phone. Davon then said, “If you have money I’ll give your phone back.”
Thinking Davon was going to shoot him, Varela backed up to go inside the school campus. Davon pointed the gun at him as he went for the exit, and then left.
Varela reported the incident to school personnel, and told the police Davon wore a white t-shirt and shorts, and had a backpack. The next Monday, he saw Davon at school and identified him to police. Varela never got his phone back.
Davon’s father, Sammie D., testified for the defense that he picked up Davon at school on Friday, October 23, 2009. Sammie D. testified that Davon was wearing his school clothes, and never wore shorts to school. When Davon came up to Sammie D.’s car, he did not appear nervous, scared, anxious, or out of breath. Sammie D. testified that no guns were kept in his house.
Davon also testified that he never wore shorts to school, and that on Fridays he wore a gray, purple, and black checkered shirt and pants. Davon denied approaching Varela after school on October 23, 2009, denied asking Varela the time, denied demanding Varela’s cell phone, and denied pointing a gun at him. Davon stated that he did not own a small, shiny silver handgun, and said that the first time he had ever seen Varela was in court. Davon said his father picked him up from school at about 2:45 p.m. on October 23, 2009, and they went home.
On Monday, October 26, 2009, Davon again attended his high school. During P.E. class, he was pulled aside by a principal, and was detained and handcuffed and taken to the school probation office. Davon acknowledged that he had a lighter that looked like a gun in his bedroom, but it was not shiny or silver but was instead brown in color. It looked like a lighter.
ISSUE
Davon claims on appeal that substantial evidence did not support the finding that he was competent, requiring reversal.
DISCUSSION
1. Determination of a Defendant’s Competency to Stand Trial
A criminal trial of an incompetent defendant violates the due process clauses of the state and federal constitutions. In determining whether a defendant is competent to stand trial the inquiry is whether the defendant “ ‘ “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.” ’ ” (Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 857, citing Dusky v. United States (1960) 362 U.S. 402.) The rights of due process are extended to juvenile delinquency proceedings, including the right to the effective assistance of counsel. Thus a minor has the right to a competency hearing in a delinquency proceeding. In that proceeding, the juvenile court has the power to determine a minor’s mental competence to understand the nature of the pending proceeding and to assist counsel in a rational manner. (Timothy J., supra, at p. 357.)
If a juvenile court entertains a reasonable doubt as to the minor’s competency, it should conduct a hearing on the minor’s present competence. The juvenile court “ ‘may borrow from Penal Code section 1367 and use as a yardstick the definition of incompetency set forth in that section... [or] may be guided by the statement of the United States Supreme Court in Dusky, supra[.]’ ” (Timothy J. v. Superior Court, supra, 150 Cal.App.4th at pp. 857-858.)
If the juvenile court finds there is a reason to doubt that a child who is the subject of a section 601 or 602 petition is capable of understanding the proceedings or of cooperating with the child’s attorney, California Rules of Court, rule 5.645(d) requires the court to “stay the proceedings and conduct a hearing regarding the child’s competence.
“(1) The court may appoint an expert to examine the child to evaluate the child’s capacity to understand the proceedings and to cooperate with the attorney.
“(2) If the court finds that the child is not capable of understanding the proceedings or of cooperating with the attorney, the court must proceed under section 6550 and (a)-(c) of this rule.
“(3) If the court finds that the child is capable of understanding the proceedings and of cooperating with the attorney, the court must proceed with the case.” (Cal. Rules of Court, rule 5.645(d).)
“A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence. [Citations.] On appeal, the reviewing court determines whether substantial evidence, viewed in the light most favorable to the verdict, supports the trial court’s finding.” (People v. Lawley (2002) 27 Cal.4th 102, 131.)
2. Substantial Evidence Supports the Finding of Mental Competence
Davon claims that no credible evidence was offered to rebut evidence of his incompetence, and therefore substantial evidence did not support the competency finding.
Expert witness Dr. Haig Kojian testified that he believed Davon to be competent to proceed with the adjudication, based on his interview with Davon and tests performed on Davon.
Dr. Kojian conducted a JACI interview with Davon. A JACI intervew assesses a person’s competence, and is used in juvenile proceedings to help determine whether a juvenile understands what is occurring and whether he is able to cooperate with his attorney. From the JACI interview, Dr. Kojian concluded that Davon met all statutory requirements, knew what was going on, and answered every question to an acceptable degree, with one exception. The exception was that Davon could not articulate and respond to a question about the District Attorney. Davon did, however, understand that the District Attorney was not working on his behalf. The JACI interview showed that Davon knew he was charged with robbery and was in trouble with the law, knew that robbery involved taking something from someone else that did not belong to him, and knew he was charged with a felony and that a felony was more serious than a misdemeanor. Davon knew that the public defender was defending him in court and understood the judge’s function. When asked if he wanted to take the case to trial or take a deal, Davon answered, “it depends on what the deal is, ” which led Dr. Kojian to believe that Davon understood the process and was inquiring about what deal he might receive in order to make a decision. Devon also said that he understood what entering a plea of guilty would mean. Davon understood that there were different possible dispositions, understood that there was a difference between placement in camp and suitable placement, and expressed a desire to go home.
Dr. Kojian also reviewed Davon’s mental health history and his probation officer’s statements about his mental health. Dr. Kojian cited a report of an extensive mental health exam in April 2008, stating that Davon was immediately returned to camp, that he was cleared, and that there were no psychiatric problems that would affect or infringe upon his functioning in camp. His family described Davon as a typical teenager. Dr. Kojian found nothing in any of the records showing any severe impairment consistent with mental retardation, developmental disability, or developmental issues that would affect Davon’s ability to participate in the proceedings.
Dr. Kojian used the Wechsler Abbreviated Scale of Intelligence test, a test with four subtests, in order not to test Davon with the same questions he had already been asked in testing done by Dr. Rome, which would produce inaccurate test results. Although the record does not contain numerical results of Dr. Kojian’s testing, Dr. Kojian concluded that he was not mentally retarded.
This constitutes substantial evidence supporting the juvenile court’s finding that Davon was mentally competent. Dr. Rome’s testimony and report contained evidence that conflicted with the evidence supporting the juvenile court’s competency finding, but the juvenile court judge, as trier of fact, was required to resolve this conflicting evidence. (In re Krystle D. (1994) 30 Cal.App.4th 1778, 1808.) This court views the evidence in the light most favorable to the respondent, resolves all evidentiary conflicts in favor of the prevailing party, and indulges all reasonable inferences possible to uphold the trial court’s findings. (In re Bartholomew D. (2005) 131 Cal.App.4th 317, 322; San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 528.) We affirm the order finding Davon was competent.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., ALDRICH, J.