Metropolitan News-Enterprise


Friday, September 27, 2013


Page 1


S.C. to Consider Burden of Proof as to Juvenile Competency

Justices Also Order Disbarment of Whittier Attorney Aaron M. Ellis




The California Supreme Court has agreed to decide whether a minor accused of a crime has the burden of establishing incompetency to stand trial in juvenile court.

The justices, at their weekly conference in San Francisco Wednesday, unanimously agreed to grant review in In re R.V. (2013) 217 Cal. App. 4th 296. The Fourth District Court of Appeal, Div. Three, ruled June 19 that the burden falls on the accused, just as it would in adult criminal court.

The case concerns an Orange County youth whose stepfather called police after an incident in which the youngster allegedly threatened the stepfather and others with a knife, rather than go to school, and also stabbed his bed several times. The child’s mother said he was mentally ill and had stopped taking medication four weeks earlier.

Prosecutors filed a delinquency petition charging the youth with brandishing a weapon and petty vandalism, both misdemeanors. Orange Superior Court Judge Deborah C. Servino appointed an evaluator, psychologist Dr. Haig Kojian, to determine his competency.

Evaluator’s Testimony

The evaluator testified that the minor was incompetent. While the minor refused psychological testing, he explained, testing was not essential to enable him to conclude that the minor had an impairment that prevented him from meaningfully assisting counsel.

Kojian cited statements by family members, teachers, and a police officer, all of whom felt the minor was confused or impaired.

Servino, however, ruled that the burden of proving incompetency was on the minor, and said she was unpersuaded by Kojian’s opinion.

Kojian, she reasoned, was not fully able to assess whether R.V. was malingering, given his refusal to take tests. And certain statements interpreted by the psychologist as showing confusion, the judge concluded, actually showed that he understood the basics of his situation, including that he was in trouble for messing up his house and not going to school, that he was charged with offenses that were less serious than felonies, and that a prior case involving drug possession at school had been taken care of.

Servino also noted that earlier testing had shown the juvenile to be free of adaptive or cognitive difficulties, suggesting his more recent problems could have been drug induced. The judge found R.V. competent, reinstated proceedings, found the allegations of the petition to be true, and placed the youth on supervised probation.

The defense argued on appeal that the burden of proving competence in juvenile cases belongs to the prosecution, but the Court of Appeal disagreed.

Treatment-Oriented Forum

Justice Raymond Ikola, writing for the panel, acknowledged that the juvenile court laws do not specifically allocate the burden to either the accused or the prosecution. But he rejected the argument that the nature of the juvenile court, as a treatment-oriented forum, requires that the burden be placed on the prosecution.

He wrote:

“Although minor contends the goals of the juvenile justice system suggest that a juvenile court should err on the side of incompetency, minor’s argument can be turned on its head. Given the wide range of services and corrective tools available to a court fashioning a disposition order for a declared ward, minor’s suggestion that the system should ‘err on the side of incompetency’ is not necessarily in the best interests of minors or of the state. To ‘err on the side of incompetency’ as to a competent minor deprives him or her of the full panoply of reformative options available under the juvenile justice system and thereby diminishes the chances for true rehabilitation.”

Treating adult defendants and juveniles alike, in terms of the burden of proof of incompetency, is consistent with due process as long as a reasonable opportunity to demonstrate incompetency is given, the justice wrote.

Attorney Disbarred

In other conference action, the justices:

•Ordered that Whittier attorney Aaron Michael Ellis, 33, be disbarred.

According to State Bar records, Ellis tendered his resignation, with charges pending, and was placed on inactive status in September of last year, one day before he was to begin a previously agreed-upon six-month suspension for 13 ethical lapses involving five clients, including performing incompetently and failing to refund unearned fees.

He offered to resign rather than face new charges that included failing to tell his clients about an impending trial until 10 minutes before it began—as a result of which they were unable to get to court in time to testify and had judgment entered against them—and falsely declaring that he had notified all opposing counsel of the impending suspension.

State Bar prosecutors opposed his request to resign, in part because he still owed thousands of dollars in previously agreed restitution. In April of this year, he admitted the new charges and agreed to be disbarred in the event the Supreme Court declined his resignation.

On Wednesday, the Supreme Court declined his resignation and ordered him disbarred. The cases are Ellis on Discipline, S211695, and Ellis on Resignation, S208976.

•Rejected a request by R.J. Reynolds Tobacco Company to depublish the April 26 opinion of the Fourth District’s Div. One in In re Tobacco Cases I (2013) 216 Cal. App. 4th 570. The Court of Appeal ordered publication of the opinion May 20.

The court upheld an attorney fee award of nearly $3 million against R.J. Reynolds in an action for violation of the 1998 national tobacco settlement.

Div. One held that San Diego Superior Court Judge Ronald S. Prager did not abuse his discretion in ruling that the attorney general was the prevailing party in the enforcement litigation, despite the denial of injunctive relief. The court also held that the amount of the award was not excessive under the circumstances.

The violations involved the “Camel Farm” or “Farm Rocks” campaign, designed to sell cigarettes to fans of rock musicians on independent record labels.

As part of the campaign, an advertisement depicting flying radios with helicopter rotors, jet-propelled tractors and televisions growing from the ground on plant stalks appeared in Rolling Stone magazine’s 40th anniversary edition in 2007.

Prager ruled in 2009 that the images violated the settlement’s ban on the use of cartoons, including depicting “objects” with “unnatural” abilities. He found injunctive relief unnecessary, because the campaign had been short-lived.

The Court of Appeal affirmed, and the judge subsequently awarded the state more than $700,000 in attorney fees. Both sides appealed.

On that second appeal, the court ordered Prager to re-determine which side prevailed, based on having obtained “the greater relief.” But it agreed with the state that if it prevailed, its fee award should be based on the rates normally charged by private counsel, rather than on how much the state paid its lawyers, who were deputy attorneys general.

On remand, Prager found that the state obtained the greater relief, because it achieved its central litigation objective of having Reynolds found in violation of the settlement. The judge further found that hourly rates of between $500 and $625 per hour were appropriate, based on fees customarily charged in the San Francisco Bay Area, because the litigation was primarily handled out of the attorney general’s Oakland office.

The Court of Appeal said both of those determinations were within the trial judge’s discretion.

The fact that the case was litigated in San Diego did not necessarily mean that the fee award had to be based on San Diego-area rates, which are generally lower than the Bay Area’s, Presiding Justice Judith McConnell wrote.

She cited evidence that the Tobacco Litigation Section had only two lawyers in San Diego, that they were among the section’s least experienced lawyers and were busy with other cases, that the attorneys in Oakland were among the section’s most experienced, and that most of the attorney general’s work involving the tobacco settlement had been done out of Oakland or Sacramento.


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