Metropolitan News-Enterprise


Tuesday, July 11, 2017


Page 1


California Supreme Court Declares:

Presiding Judge’s Guidelines Didn’t Have Force of Law

Decision Affirms Court of Appeal Decision of This District’s Div. Five, Repudiates Contrary Holding by Div. Seven


By a MetNews Staff Writer


Guidelines promulgated in 2012 by the then-presiding judge of the Los Angeles Juvenile Court setting a 120-day cap on incarceration of a minor undergoing treatment to render him competent to respond to charges are nonbinding, the California Supreme Court held yesterday.

Resolving an intra-district conflict, the court declared that Div. Five of this district’s Court of Appeal was right, and Div. Seven was wrong.

“We hold that although trial courts are not barred from adopting such protocols as guidance or as local rules,” Justice Goodwin Liu said, writing for a unanimous court, “the Court of Appeal below”—Div. Five—“was correct that the protocol does not presumptively or otherwise define due process.”

Nash Issues Guidelines

In 2012, then-Los Angeles Superior Court Judge Michael Nash (now director of the county’s Office of Child Protection) was presiding judge of the court’s juvenile court. On Jan. 9, he promulgated a “protocol” to “implement” the recently enacted Welfare and Institutions Code §709 which set forth procedures to be followed where a doubt arises as to respond to allegations in a petition.

Nash declared:

“If the minor is detained and 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 DMH [(Department of Mental Health)] to begin immediate coordination of a mental health and education services to help minor attain competency….

“The case shall be set for an Attainment of Competency Hearing within sixty days….

“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.”

The 120-day rule was an innovation.

The U.S. Supreme Court in 1972 held in Jackson v. Indiana that “a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.” Sec. 709, likewise, did not set a specific time limit, nor did the California Supreme Court’s 1973 decision In re Davis adopting the rule of Jackson.

However, in 2013, Div. Seven, in an opinion by then-Justice Fred Woods (now retired), in In re Jesus G., declared that “a violation of the Protocol is presumptively a violation of constitutional rights.”

Kriegler’s Opinion

Div. Five disagreed with Woods’ opinion, in its 2015 opinion in the case decided by the Supreme Court yesterday. Justice Sandy Kriegler wrote for Div. Five:

“We hold that the Protocol is not entitled to the force of law, and the 120-day limit on detention does not define due process.”

He said that Los Angeles Superior Court Judge Denise McLaughlin-Bennett “properly observed that the Protocol ‘is not law,’ it is a set of guidelines, which a judge is free to consider in his or her discretion.”

Kriegler acknowledged that Nash provided “a thoughtful and articulate memorandum relating to the processing of delinquency cases involving competency issues,” but commented:

“A single judge, even a presiding judge, cannot determine how the law is to be applied by a co-equal trial court, particularly on matters which necessarily require flexibility and the exercise of discretion.”

High Court Opinion

In yesterday’s opinion, in In re Albert C., S231315, Liu wrote:

“The Protocol may serve as useful guidance concerning the placement, detention, and treatment of minors found incompetent in delinquency proceedings. But it does not independently give rise to any claim for relief because it does not by itself have any binding force of law. The Protocol was not adopted as a local rule….Nor was it authorized by any state statute….And it was not adopted by the trial court in Albert’s case as an exercise of its inherent authority to control the proceedings….

“Nor does the Protocol by its own force establish a constitutional rule of decision, as Jesus G. seemed to suggest.”

McLaughlin-Bennett declared Albert C. to be a ward of the court after determining he had regained competence and he admitted two allegations of the petition.

Liu said there was no need to determine whether the length of incarceration violated due process, aside from the protocol, declaring that any due process deprivation “could not have prejudiced” the outcome.


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