Filed 2/10/14
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION TWO


In re JOHN Z., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
        Plaintiff and Respondent,                 A138728
v.
JOHN Z.,                                          (Contra Costa County
                                                  Super. Ct. No. J12-01036)
     Defendant and Appellant.
                                                  A140343
In re JOHN Z., a Minor, on Habeas Corpus.


        The People charged John Z. with felony attempted burglary in a juvenile wardship
petition. During proceedings in November 2012, John’s counsel declared a doubt as to
John’s competency and the court invoked Welfare and Institutions Code section 709, 1
ordering suspension of proceedings and appointing an expert to evaluate John. The
expert’s February 2013 report stated that John had an IQ of 63 and was not presently
competent, but the court found the report lacking in detail. Another expert was appointed
to evaluate John, but a second report was never prepared for the court. Meanwhile, John
was involved in two alleged batteries at school which were not immediately charged.
        On April 18, 2013, when the People offered to allow John to plead to three
misdemeanors and drop the felony charge, John’s counsel asked the court’s leave to
withdraw her doubt as to John’s competency. After John’s counsel and the court

        1
         Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.


                                             1
questioned John on the record, the court accepted John’s admissions and allowed John’s
counsel to withdraw her doubt.
       On appeal John contends that (1) there was insufficient evidence that John was
competent when he entered his pleas; (2) the juvenile court may not adopt defense
counsel’s belief that John could assist in his own defense as a judicial finding of
competence; (3) the court violated the requirement of section 709, subd. (f); and (4)
defense counsel was ineffective when she argued the disposition without having copies of
police reports of the batteries that John admitted.
       We conclude that the juvenile court had no jurisdiction to allow John’s counsel to
withdraw her doubt and could not make a competency determination within the confines
of section 709 without expert input. The order adjudging John to be a ward of the court,
pursuant to section 602, is reversed. We direct the trial court to withdraw John’s
admissions and order proceedings in conformity with section 709. We need not examine
John’s other assertions of error.
       John has also filed a separate petition for writ of habeas corpus which seeks relief
no different from that which he seeks on appeal. With our decision here, John’s petition
for writ of habeas corpus is denied as moot.
                                     BACKGROUND
       On July 25, 2012, the People filed a juvenile wardship petition, pursuant to section
602, subdivision (a), alleging that John had attempted a first degree residential burglary.
(Pen. Code, §§ 459, 460, subd. (a), 664.) John, who was then 15 years old, had been with
two friends who asked him to act as lookout while they broke into a house and John
agreed, though he told police that he thought his friends were “playing” until he heard the
sound of an alarm from the house. John and his friends left the scene, but John was
apprehended because a witness followed him.
       On September 26, 2012, the court found John eligible for deferred entry of
judgment (DEJ). On November 14, 2012, the court (Commissioner Stephen F.
Houghton) held a hearing for John to enter a plea for DEJ. The court asked John if he
was admitting the attempted burglary by his own choice and John answered, “No.”


                                               2
John’s counsel explained that she had worked hard to help John understand the
proceedings, but that issues remained and she declared a doubt as to John’s competency.
The court suspended proceedings, pursuant to section 709, and, on November 26,
appointed John Rouse, Ph.D. to perform an evaluation of John.
       On January 17, 2013, Dr. Rouse informed the court that he had been unable to
evaluate John because John’s mother failed to bring John for evaluation on each of three
days he had scheduled with her. On February 5, 2013, the court appointed Edward M.
Meshberg, Ph.D. to evaluate John and admonished John’s mother to ensure that the
evaluation occurred.
       On March 15, 2013, Dr. Meshberg submitted a report, based upon a 90-minute
evaluation, that stated: “Toward the end of the assessment [John] reported he was bored
and didn’t attempt to answer questions he was asked, even when reminded of the
potential consequences of what he is facing.” Dr. Meshberg made “rule out” diagnoses
of mood disorder, attention deficit disorder, and mild mental retardation. John’s IQ was
reported as “63 on the KBIT-2.” Dr. Meshberg concluded that John was “not competent
to help his attorney defend him and not competent to stand trial, at this time” and
recommended that John be given court room training in how a trial proceeds and how the
various outcomes can affect his life.
       At a hearing on March 19, 2013, the court (Hon. Rebecca C. Hardie) stated that
that it “found the report of Dr. Meshberg lacking in sufficient detail and not very
informative or helpful.” The court also considered a probation department report stating
that John had significant absences from school and had been involved in two fights there.
The court placed John on home supervision with electronic monitoring. The matter of
competency was continued.
       On March 26, 2013, the court referred John to Marlon Griffith, Ph.D. for a further
competency evaluation.
       On March 29, the probation department reported that two days earlier John had
left his home without the approval of his probation officer. Additionally, John had been
suspended from school and had failed to inform his probation officer.


                                             3
       On April 2, 2013, the court (Hon. Barry Baskin) referred John to Karen Franklin,
Ph.D. because Dr. Griffith would only evaluate minors who are at least 17 years old.
       On April 16, 2013, the court2 ordered that John be detained because the probation
department reported that John’s electronic monitor had been removed and a witness
reported that it had been thrown “through a car windshield.” John admitted removing the
monitor, but not throwing it at a moving car.
       On April 18, 2013, John’s counsel informed the court that the district attorney had
offered to allow John to admit three misdemeanor counts and to dismiss the felony
charge. John’s counsel believed that John understood the situation and she wished to
withdraw her doubt as to John’s competency so that John could enter a plea. She told the
court: “I’ve come to realize that a lot of that with John is not about not understanding the
process, it’s more about the vocabulary that’s used. . . . [W]hen anybody will use certain
words, he just will not understand them. He doesn’t understand the word ‘waive.’. . .
[He] doesn’t understand ‘cross-examination.’ And I don’t think that he ever will. He has
an [individualized education plan]. There’s definitely a block there but I don’t think that
he is incompetent. I think that it’s really a matter of explaining things at a much more
basic level.” The court stated that it was happy to question John on the record, but added:
“It’s a significant matter for me in vacating a prior order. . . . [I]t concerns me because
when there is a doubt, we have an obligation to the minor to make sure that he or she
understands.”
       Following a recess, the court stated that it had reviewed the case file and found Dr.
Meshberg’s report not to be “very helpful on the question of whether the minor was
incompetent or not. The doctor concluded that he was, but there was, in my view, very
little information in there about why.”
       John’s counsel responded: “Well, I think that [Dr. Meshberg] addresses his low
IQ and lack of focus, and I do think that that could be enough to believe that he is not
competent. You know, I’m not sure that he does have to go beyond that, you know, if he
       2
        All proceedings on and after April 16, 2013 were conducted by the Hon. Lewis
A. Davis.


                                              4
stops answering questions and, you know, has this extremely low IQ, I do think that
could be enough. [¶] . . . I’m troubled a lot because John is in custody now and, you
know, I’m concerned about him. . . . I’m saddened that he’s here and I think that—I
don’t think he’s ever going to be competent in the way that we want him to be. [¶] I
don’t—there’s a developmental delay. He doesn’t need medications. You know, I don’t
think he needs training. I think things need to be just explained to him very slowly. And,
you know, word choice needs to be very, you know, thoughtful and basic. And so I just,
you know—and there is this offer of misdemeanors. That was what I was trying to get all
along even before, you know, proceedings were suspended. It’s my advice that he takes
it. You know, he understands. He does want to admit the charges. He understands that.
He doesn’t want a trial. You know, so I’m just—I’m just a little bit torn because, you
know, I do want to go forward with him forward today with this so that he can move on.”
       John’s counsel and the court then proceeded to ask John questions. John was able
to identify his counsel as his attorney and stated that her role was to try “to get me up out
of here.” John did not recognize the district attorney and was not able to explain the role
of a prosecutor. John said it was the “police” who charged him with crimes. He
explained that the role of the judge was to “tell you how long you got—like, how long
you got to spend your time in here.” According to John, “A trial is people that come in
and they choose, like, if you are guilty or—if you are guilty or not.”3
       John said that a felony was worse than a misdemeanor and that he wanted to admit
he was guilty rather than go to trial. The court asked John why a felony was more serious
than a misdemeanor and John replied: “A felony too much serious because it’s much
worser and stuff. And a misdemeanor is more better to me than a felony. . . . Cause a
felony, like, you spend more time up in here.” John said he understood that by admitting
the charges, a trial would not happen and that he wanted to admit he was guilty
“[b]ecause a trial—at trial, it’s more worser.”


       3
         Neither John’s counsel nor the court asked John if he understood that if the
matter proceeded to trial, he would be tried by the judge and not by a jury.


                                              5
       The court then proceeded to ask whether John understood standard Boykin/Thal
admonitions. (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.)
       The prosecutor moved to amend the petition to allege misdemeanor attempted
second degree burglary as count 2 (Pen. Code, §§ 459, 460, subd. (b), 664) and two
misdemeanor batteries on school grounds as counts 3 and 4 (Pen. Code, § 243.2, subd.
(a).) The court granted this motion and dismissed the original count of felony attempted
burglary. John entered pleas of no contest to the three misdemeanor counts. The court
stated: “The court accepts each of the no contest pleas as admissions. The court finds
that the minor [has] been advised of his constitutional rights. He’s made a knowing,
intelligent and voluntary waiver of those rights. He’s entered his pleas of no contest to
counts 2, 3, and 4 in a knowing, intelligent and voluntary manner.” The court also stated:
“For the record, I should say that I’m granting this—obviously, by having [taken] his
pleas I’ve granted Ms. Murray’s motion to withdraw her declaration of a doubt. The
record shows that detailed questioning of the minor conducted by Ms. Murray and by the
court, I am satisfied that he understands the proceedings. Ms. Murray, you represent that
he’s been in a position to assist you, if necessary?” John’s counsel answered “yes” and
the court stated: “So I adopt that as my finding. And that’s the reason for the unusual
procedure of allowing you to withdraw your declaration of a doubt.”
       At a disposition hearing on May 2, 2013, the court adjudged John a ward of the
court. John was committed to the Orin Allen Youth Rehabilitation Facility for nine
months. A motion to reconsider disposition was denied by the court on June 6, 2013.
       A timely notice of appeal was filed on May 20, 2013.
                                      DISCUSSION
       To be mentally competent to stand trial, a defendant “must be capable of
understanding the nature and purpose of the proceedings against him,” “must
comprehend his own status and condition in reference to such proceedings,” and “must be
capable to assist his attorney in conducting his defense, or be able to conduct his own
defense in a rational manner.” (People v. Conrad (1982) 132 Cal.App.3d 361, 369-370.)
The conviction of an accused person while he is legally incompetent violates due process


                                             6
and state procedures must be adequate to protect this right. (Pate v. Robinson (1966) 383
U.S. 375, 378.) The standard for competency is no different for a defendant who is
pleading guilty than for one who is going to trial. (Godinez v. Moran (1993) 509 U.S.
389, 397-398.)
       The “ ‘essentials of due process and fair treatment’ ” apply to juvenile proceedings
as well as to adult criminal proceedings. (In re Gault (1967) 387 U.S. 1, 30.) Juvenile
incompetency is not defined solely “in terms of mental illness or disability,” but also
encompasses developmental immaturity, because minors’ brains are still developing.
(Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 860.)
       In California juvenile proceedings, section 709 governs competency
determinations and provides, in relevant part: “(a) 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. [¶] (b) Upon suspension of proceedings, the court shall order that the
question of the minor’s competence be determined at a hearing. 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. The expert shall 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. The Judicial Council shall develop and adopt rules for the implementation




                                             7
of these requirements.”4 Incompetency must be established by a preponderance of the
evidence. (§ 709, subd. (c).)
       Section 709 makes no provision for a court to withdraw its order suspending
proceedings so that the minor’s competency can be determined at a hearing with input
from an expert. We find no cases that deal with whether, or under what circumstances, a
juvenile court has the discretion to withdraw orders made pursuant to section 709,
subdivisions (a) and (b). However, cases concerning due process requirements when
determining competency in the adult criminal context are instructive.
       In adult criminal proceedings, the question of competence is governed by Penal
Code section 1368, which provides, in relevant part: “(a) If, during the pendency of an
action and prior to judgment, a doubt arises in the mind of the judge as to the mental
competence of the 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. If the defendant is not represented by counsel, the court shall
appoint counsel. At the request of the defendant or his or her counsel or upon its own
motion, the court shall recess the proceedings for as long as may be reasonably necessary
to permit counsel to confer with the defendant and to form an opinion as to the mental
competence of the defendant at that point in time. [¶] (b) If counsel informs the court
that he or she believes the 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 which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court
that he or she believes the defendant is mentally competent, the court may nevertheless
order a hearing. Any hearing shall be held in the superior court. [¶] (c) Except as
provided in Section 1368.1, when an order for a hearing into the present mental
competence of the defendant has been issued, all proceedings in the criminal prosecution
shall be suspended until the question of the present mental competence of the defendant
has been determined.” Like Welfare and Institutions Code section 709, Penal Code
       4
         The Judicial Council addressed the requirement placed upon it in section 709,
subdivision (b), in California Rules of Court, rule 5.645.


                                             8
section 1369 requires the appointment of a psychiatrist or psychologist to evaluate the
defendant’s competency.
       Welfare and Institutions Code section 709 was introduced into the code in 2010.
(Stats. 2010, ch. 671, § 1.) Prior to 2010, the state conceded, and the California Supreme
Court did not challenge, that “the protective reach of Penal Code section 1368 extend[ed]
to section 602 proceedings in juvenile court.” (In re Ramon M. (1978) 22 Cal.3d 419,
430, fn. 14, superseded by statute on another ground as stated in People v. Phillips (2000)
83 Cal.App.4th 170, 173.)
       The California Supreme Court has held that once substantial evidence points to the
incompetency of an accused, “no matter how persuasive other evidence—testimony of
prosecution witnesses or the court’s own observations of the accused—may be to the
contrary,” the accused has a constitutional right to a competency hearing. (People v.
Pennington (1967) 66 Cal.2d 508, 518.) “[W]hen defendant has come forward with
substantial evidence of present mental incompetence, he is entitled to a [Penal Code]
section 1368 hearing as a matter of right . . . . The judge then has no discretion to
exercise.” (Ibid.)
       In People v. Hale (1988) 44 Cal.3d 531 (Hale) the trial court expressed a doubt as
to defendant’s competency on the record and appointed psychiatrists to evaluate
defendant. (Id. at p. 535, fn. 5.) However, no hearing was ever held and after
continuances the defendant entered a plea and the case proceeded to trial. (Id. at p. 536.)
The Hale court held that “[o]nce the trial court ordered the hearing, as it reasonably did, it
could not simply vacate the order, sub silentio.” (Id. at p. 540.) The People asserted that
defendant’s changed mental condition obviated the need for a competency hearing, but
the court held that “[t]his argument [was] misplaced. As stated earlier, [Penal Code]
section 1368 ‘requires that if at any time during the pendency of a criminal case a doubt
arises as to mental competency, all criminal proceedings must be suspended until a
hearing has been conducted to determine whether the defendant is presently mentally
competent.’ [Citation.] Indeed, once a doubt has arisen as to the competence of the
defendant to stand trial, the trial court has no jurisdiction to proceed with the case against


                                              9
the defendant without first determining his competence in a [Penal Code] section 1368
hearing, and the matter cannot be waived by defendant or his counsel.” (Id. at pp. 540-
541.)
        In People v. Marks (1988) 45 Cal.3d 1335 (Marks), the court reiterated its holding
in Hale that “once a trial court has ordered a competency hearing pursuant to [Penal
Code] section 1368, the court lacks jurisdiction to conduct further proceedings on the
criminal charge or charges against the defendant until the court has determined whether
he is competent. This determination is mandated by the federal constitutional
requirement of due process and by unambiguous California statutes.” (Id. at p. 1337.) In
Marks, defense counsel “expressed severe doubt” as to defendant’s competency and
based on that representation, the trial court expressed a doubt as to defendant’s
competency on the record and ordered a competency hearing. (Id. at p. 1338.) The trial
court appointed two psychiatrists to examine defendant. (Ibid.)
        Before a competency hearing was held, defense counsel told the trial court, “ ‘I
think all [Penal Code section] 1368 matters have been resolved’ ” because the reports of
both the appointed psychiatrists indicated that defendant was competent. (Marks, supra,
45 Cal.3d at p. 1339.) There was no further reference in the record to any proceeding to
determine defendant’s competency to stand trial. (Ibid.) Defendant was tried by a jury
and convicted, but the Marks court reversed because a Penal Code section 1368 hearing
had not been held. (Marks, at pp. 1339-1340.)
        The Marks court believed that the trial court most likely construed defense
counsel’s statement that all Penal Code section 1368 matters had been resolved as a
waiver of the competency issue. (Marks, supra, 45 Cal.3d at p. 1340.) The court stated:
“As we emphasized in Hale, however, ‘. . . the matter is jurisdictional, and cannot be
waived by counsel. [Citations.] . . .” ’ [Citation.] This principle is well established and
understood. A widely used guide for trial judges states: ‘Regardless of defense counsel’s
opinion, a hearing on the issue of defendant’s mental competence must be held if the trial
judge has declared a [Penal Code] section 1368[, subdivision] (a) doubt which has not
been formally resolved.’ (George, L.A. Super. Ct. Crim. Trial Judges’ Benchbook (Jan.


                                             10
1985 ed.) p. 130, italics added.) The obligation and authority to determine a defendant’s
competency belong to the trial court or jury, not to the defendant’s counsel.” (Marks, at
p. 1340.)
       We discern no reason why the demands of due process would allow a court to be
any less rigorous in juvenile proceedings than Hale and Marks require in adult
proceedings. The People do not argue otherwise. Instead, the People argue that “Hale
and Marks are inapplicable here because there was no longer a doubt of competency
raised once defense counsel withdrew her doubt. The court never formally raised a doubt
of appellant’s competency. Thus, the procedure of section 702 [sic] to determine
competency and further hearing on the matter was no longer required. Defense counsel
withdrew her doubt once she realized that she could properly communicate with appellant
and that he had a basic understanding of the proceedings.”
       The People’s argument is not persuasive. The court explicitly invoked section 709
after John was apparently unable to understand a simple question posed by the court and
John’s counsel expressed a doubt as to John’s competency. The court, as provided in
section 709, subdivisions (a) and (b), suspended proceedings and appointed an expert to
evaluate John so that the question of John’s competency could be determined at a
hearing. By taking these actions, we must presume that, as provided in section 709,
subdivision (a), the court found that substantial evidence raised a doubt as to John’s
competency.5 Because there was substantial evidence indicating that John was not

       5
          A court has the discretion to order a competency hearing even if evidence of
incompetency does not rise to the level of “substantial evidence,” which has been defined
as “evidence that raises a reasonable doubt concerning the defendant’s competence to
stand trial.” (People v. Welch (1999) 20 Cal.4th 701, 738, 742, overruled on another
ground in People v. Blakeley (2000) 23 Cal.4th 82, 89.) Here, nothing in the record
indicates that the court determined that John’s present incompetence was not supported
by substantial evidence and that the court invoked section 709 solely at its own
discretion. The People cite no cases that would support a conclusion that counsel’s
statement of doubt as to John’s competency, together with John’s apparent inability to
understand a simple question posed by the court, does not constitute substantial evidence.
If there were any doubt whether substantial evidence supported a finding of
incompetency, that doubt was removed by Dr. Meshberg’s report, which found John not

                                            11
presently competent, a competency hearing was required and under Hale and Marks, that
hearing could not be waived by John’s counsel, which is what she attempted to do by
withdrawing her doubt as to John’s competency.
       What distinguishes this case from Hale and Marks6 is that the court examined
John on the record and, based on those responses, accepted John’s pleas and found that
John had made a knowing, intelligent, and voluntary waiver of his rights. Based on the
statement by John’s counsel that John was able to assist her, the court allowed John’s
counsel to withdraw her doubt about John’s competency. The People appear to regard
these proceedings as a determination of competency.
       The court understood that John’s counsel’s request to withdraw her doubt as to
John’s competency was unusual. The record presents no reason to doubt that John’s
counsel and the court acted in what they believed to be John’s best interest, and we
appreciate that the court understood that a minor’s counsel is often in the best position to
ascertain whether the minor understands and can assist in his or her own defense.
Nevertheless, as we have discussed, John’s right to due process required the court to
conduct a competency hearing and, assuming that the court did make a competency
determination, as the people argue, that determination was not made in accord with
section 709.
       Both John’s counsel and the court questioned John on the record.7 The court also
relied upon the statement of John’s counsel that John was able to assist her. What was


to be presently competent. (See Hale, supra, 44 Cal.3d at p. 540 [“these psychiatric
reports . . . constituted ‘substantial evidence’ within the ambit of section 1368”]; People
v. Pennington, supra, 66 Cal.2d at p. 519.)
       6
         Another distinguishing feature is that John admitted charges alleged in the
section 602 petition while the defendants in Hale and Marks proceeded to a jury trial.
This is not a relevant difference, however, because what violates due process is the
conviction of a defendant who is legally incompetent. As we have noted above, the
demands of due process in the determination of competency do not distinguish between
the routes taken to conviction.
       7
         The court’s questioning, for the most part, consisted of Boykin/Thal
admonitions. Because these admonitions only call for an expression of understanding

                                             12
missing, if the court indeed made a competency determination, was what both Penal
Code section 1369 and Welfare and Institutions Code section 709 clearly intend to be the
center of such a determination—the reports and/or testimony of experts who have
evaluated the defendant for legal competency. The centrality of expert reports is
demonstrated by the rule that a formal adversary hearing on the issue of competence is
not required if the prosecutor and defense counsel stipulate that the competency
determination be made by the court based on the written reports of the court-appointed
experts. (People v. Weaver (2001) 26 Cal.4th 876, 903-905.)
       Because a section 709 hearing was required and expert opinion in the form of
reports and/or testimony plays a central role, the court had two options: either schedule a
formal competency hearing at which Dr. Meshberg could testify concerning his report,
because the court found the written report to be inadequate, or wait for the evaluation and
report by Dr. Franklin. The court did not have jurisdiction to allow John’s counsel to
withdraw her doubt concerning John’s competency and could not make a competency
determination within the confines of section 709 without considering the evidence of
experts.




from the defendant and do not call for the defendant to explain procedures or concepts,
they have very limited usefulness in a determination of competency.


                                            13
                                    DISPOSITION
      The order adjuding John to be a ward of the court, pursuant to section 602, is
reversed. The trial court shall withdraw John’s admissions and shall order proceedings in
conformity with section 709.




                                                _________________________
                                                Brick, J.*


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




                                           14
       * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
Trial Court:                               Contra Costa County Superior Court

Trial Judge:                            Hon. Lewis A. Davis


Attorney for Appellant                  Patricia N. Cooney, under appointment by the
                                        Court of Appeal




Attorneys for Respondent                Attorney General of California
                                        Kamala D. Harris

                                        Dane R. Gillette
                                        Chief Assistant Attorney General

                                        Gerald A. Engler
                                        Senior Assistant Attorney General

                                        Eric D. Share
                                        Supervising Deputy Attorney General

                                        Huy T. Luong
                                        Deputy Attorney General




                                          15
