Filed 4/26/23 (unmodified opn. attached)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

K.R.,

Petitioner,

v.

THE SUPERIOR COURT OF LOS 

ANGELES COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

 B321655

 (Los Angeles County

 Super. Ct. No. FJ57352)

 ORDER MODIFYING

 OPINION; NO CHANGE

 IN JUDGMENT

THE COURT:

It is ordered that the opinion filed on March 30, 2023, be 

modified as follows:

* Pursuant to California Rules of Court, rule 8.1100, the 

opinion is certified for publication with the exception of parts 

II.C.3 and II.C.4.
2

On page 20, line 6 under subheading 1. Relevant 

Proceedings, change Dr. Ward’s first name from “Kelli” to “Jody” 

so the sentence reads:

The court granted the motion, and on April 20 signed 

an order to allow the expert, Dr. Jody Ward, to 

examine K.R.

There is no change in the judgment.

_________________________________________________________________

WEINGART, J. CHANEY, J. BENDIX, Acting P. J.
Filed 3/30/23 (unmodified opinion)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

K.R.,

Petitioner,

v.

THE SUPERIOR COURT OF LOS 

ANGELES COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

 B321655

 (Los Angeles County

 Super. Ct. No. FJ57352)

ORIGINAL PROCEEDINGS; petition for writ of mandate. 

Christopher Smith, Judge. Petition denied.

Cyn Yamasiro, Markéta Sims, and Martin Lijtmaer for 

Petitioner.

* Pursuant to California Rules of Court, rule 8.1100, this 

opinion is certified for publication with the exception of parts 

II.C.3 and II.C.4.
2

No appearance for Respondent.

George Gascón, District Attorney, Tracey Whitney and 

Felicia Shu, Deputy District Attorneys, for Real Party in Interest.

_____________________

In 2018, the Legislature enacted Assembly Bill No. 1214 

(2017-2018 Reg. Sess.) (Stats. 2018, ch. 991), which repealed the 

then existing statute governing competency proceedings in 

juvenile delinquency cases and replaced it with a new version, 

Welfare and Institutions Code section 709.1 According to the 

bill’s author, the purpose of the bill was to eliminate situations in 

which juveniles found not competent to stand trial “remain[ed] in 

[juvenile] hall without clear timelines governing the length of 

remediation services.” (Sen. Com. on Pub. Saf., Analysis of 

Assem. Bill No. 1214 (2017-2018 Reg. Sess.) June 26, 2018, p. 7.) 

To that end, the new version of the statute provides that for 

juveniles, “the total remediation period shall not exceed one year 

from the finding of incompetency.” (§ 709, subd. (h)(3).)

In this case, almost 15 months elapsed from the time the 

juvenile court found petitioner K.R. incompetent to stand trial 

and referred him for remediation, until the court determined that 

he had been restored to competency and reinstated the 

proceedings. K.R remained in juvenile hall for that entire period. 

He filed a writ petition arguing that the court lost jurisdiction 

when it failed to make a final ruling on his competency by the 

one-year deadline for remediation services, and was required to 

dismiss the case at that point. In the alternative, he argues the 

1 Unless otherwise specified, subsequent statutory 

references are to the Welfare and Institutions Code.
3

court erred by allowing the prosecution to employ its own expert 

to examine him, and asks us to order the juvenile court to strike 

the expert’s testimony.

We disagree with both arguments. In the published portion 

of our opinion, we hold that although section 709 establishes a 

maximum period of one year of remediation, the juvenile court’s 

jurisdiction continues for a reasonable period afterward for the 

court to resolve any dispute still existing at the end of that period 

over whether the minor has attained competency. Even if this 

was not the case, section 709 permits a court to keep juveniles 

accused of certain serious offenses (including several with which 

K.R. was charged) in secure confinement past the one-year 

remediation period for conclusion of competency proceedings. We 

also find that section 709 does not preclude the parties from 

seeking the appointment of their own expert(s) after the initial 

competency hearing. In the unpublished portion, we hold that 

K.R. has not demonstrated prejudicial error from his examination 

by a prosecution expert.

I. FACTS AND PROCEEDINGS BELOW

On August 27, 2020, the People filed a juvenile delinquency 

petition under section 602 alleging that K.R. committed murder, 

in violation of Penal Code section 187, subdivision (a) (count 1); 

home invasion robbery (id., § 211; counts 2 & 3); and residential 

burglary (id., § 459; count 4). K.R. was 17 years old at the time of 

the alleged offenses.

K.R.’s attorney expressed a doubt about K.R.’s competency, 

and the court appointed a psychologist to examine K.R. The 

psychologist found that K.R. had a developmental disability, and 

that as a result, K.R. was unable to consult with counsel and 

assist in preparing his defense. Nevertheless, the psychologist 
4

believed K.R. could be remediated—that is, restored to 

competency.

The parties submitted on the expert’s report, and on 

May 13, 2021, the court found K.R. incompetent to stand trial 

and referred him to remediation services in the hope of restoring 

him to competency. According to employees at the remediation 

program, and in part due to Covid-19 pandemic related 

procedures, K.R. did not begin receiving remediation services 

until approximately three months later, in August.

Section 709, subdivision (h)(1) calls for an evidentiary

hearing “[w]ithin six months of the initial receipt of a 

recommendation” for remediation to determine “whether the 

minor is remediated or is able to be remediated.” The court 

timely conducted this hearing in October 2021 and found that 

K.R. remained incompetent, but that he was likely to be 

remediated, and ordered him to return to remediation. K.R. 

thereafter continued to receive remediation services over the next 

several months. During that time, K.R. was examined by two 

court-appointed psychologists, both of whom concluded that he 

was not competent and was not likely to be restored to 

competency.

With the one-year statutory deadline for remediation 

looming, the People filed a motion on April 8, 2022, to have K.R. 

examined by a psychologist retained by the People. K.R.’s 

attorney objected, arguing that section 709 does not allow the 

People to retain an expert to evaluate a minor after the initial 

competency hearing, and that the prosecutor had not complied 

with the requirements to meet and confer and to inform defense 

counsel in advance about the name of the expert, and the time, 

manner, and scope of the evaluation.
5

The juvenile court ultimately overruled the objection, but 

the litigation on the issue delayed the process. The People’s 

psychologist did not examine K.R. until May 9, 2022, and did not 

file her report opining that K.R. was competent to stand trial

until May 11, 2022. At a hearing on May 12, 2022, K.R.’s 

attorney argued the juvenile court should dismiss the petition 

because section 709 permitted only one year of remediation, and 

that period expired the following day on May 13, 2022. The 

juvenile court denied the motion without prejudice, and 

continued the matter to May 18, 2022, to hear from the 

competing experts.

At the hearing on May 18, 2022, the judge to whom the 

case was assigned recused himself in the middle of the 

evidentiary hearing after learning that he was acquainted with 

one of the percipient witnesses in the case. The matter was then 

reassigned to another judicial officer, who reconvened the hearing 

on May 20, 2022. At the May 20, 2022 hearing, K.R.’s attorney 

renewed the motion to dismiss, and the juvenile court again 

denied it.

K.R. filed the instant petition for a writ of mandate on 

July 15, 2022. While the writ petition was pending, the juvenile 

court found on August 11, 2022, that K.R. was competent to 

stand trial.

2

2 We take judicial notice of the juvenile court’s ruling.
6

II. DISCUSSION

A. Background on Section 709

Because this case turns almost entirely on the 

interpretation of section 709, we begin by describing the aspects 

of that statute relevant to this case.

Proceedings under section 709 are triggered when any 

party or the court itself expresses a doubt as to the minor’s 

competency. (§ 709, subd. (a)(3).) “If the court finds substantial 

evidence raises a doubt as to the minor’s competency, the 

[delinquency] proceedings shall be suspended.” (Ibid.; accord, id., 

subd. (a)(1).)

At this point, unless the parties stipulate to a finding of 

incompetency or agree to submit on the issue, “the court shall 

appoint an expert to evaluate the minor and determine whether 

the minor suffers from a mental illness, mental disorder, 

developmental disability, developmental immaturity, or other 

condition affecting competency and, if so, whether the minor is 

incompetent.” (§ 709, subd. (b)(1).) In addition to the courtappointed expert, “The district attorney or minor’s counsel may 

retain or seek the appointment of additional qualified experts 

who may testify during the competency hearing. . . .” (Id., subd. 

(b)(6).) If the People choose to retain or appoint an expert, they

must first obtain “an order from the juvenile court after 

petitioning the court for an order pursuant to the Civil Discovery 

Act.” (Ibid.)

Unless the parties stipulate that the minor is incompetent 

or agree to submit the matter on the basis of the expert’s finding 

that the minor is incompetent, the court must hold an evidentiary 

hearing at which it is “presumed that the minor is mentally 

competent, unless it is proven by a preponderance of the evidence 
7

that the minor is mentally incompetent.” (§ 709, subd. (c).) If the 

court finds the minor competent, it must reinstate proceedings. 

(Id., subd. (d).)

Upon a finding of incompetence, “all proceedings shall 

remain suspended for a period of time that is no longer than 

reasonably necessary to determine whether there is a substantial 

probability that the minor will attain competency in the 

foreseeable future, or the court no longer retains jurisdiction and 

the case must be dismissed.” (§ 709, subd. (e).)

Under subdivision (f) of section 709, if the minor is alleged 

to have committed only misdemeanor offenses, “the petition shall 

be dismissed” upon a finding of incompetency. In cases involving 

incompetent minors accused of at least one felony, “the court 

shall refer the minor to services designed to help the minor attain 

competency, unless the court finds that competency cannot be 

achieved within the foreseeable future.” (Id., subd. (g)(1).) The 

court must order these remediation services to be “provided in 

the least restrictive environment consistent with public safety,” 

and must consider alternatives to confinement in juvenile hall. 

(Ibid.)

Unless all “parties stipulate to, or agree to the 

recommendation of, the remediation program,” “[w]ithin six 

months of the initial receipt of a recommendation by the 

designated person or entity”3 the court must hold another 

3 The statute does not clearly identify who the “designated 

person or entity” is whose “recommendation” triggers the 

beginning of the six-month time period for the second evidentiary 

hearing. The juvenile court inferred that the six-month clock 

began running upon the receipt of the initial report of the court-
8

evidentiary hearing to determine “whether the minor is 

remediated or is able to be remediated.” (§ 709, subd. (h)(1).) 

The statute contemplates three possible outcomes from this 

hearing. First, “If the court finds that the minor has been 

remediated, the court shall reinstate the proceedings.” (Id., subd. 

(h)(2).) On the other hand, “If the court finds that the minor will 

not achieve competency within six months, the court shall 

dismiss the petition.” (Id., subd. (h)(4).)

The third possibility is that “the court finds that the minor 

has not yet been remediated, but is likely to be remediated within 

six months.” (§ 709, subd. (h)(3).) In this instance, “the court 

shall order the minor to return to the remediation program. 

However, the total remediation period shall not exceed one year 

from the finding of incompetency and secure confinement shall 

not exceed the limit specified in” subdivision (h)(5)(A). (Id., subd. 

(h)(3).) Subdivision (h)(5)(A) in turn provides that “[s]ecure 

confinement shall not extend beyond six months from the finding 

of incompetence,” unless the court considers several factors and 

determines “that it is in the best interests of the minor and the 

public’s safety for the minor to remain in secure confinement.” 

(Id., subd. (h)(5)(B).) In cases where the minor is alleged to have 

appointed expert, who must “make recommendations regarding 

the type of remediation services that would be effective in 

assisting the minor in attaining competency.” (§ 709, subd. 

(b)(3).) The Los Angeles Superior Court protocols on juvenile 

competency hearings interpret the statute the same way. 

(Greenberg, P. J., Competency to Stand Trial Protocol (Mar. 6, 

2019) p. 8 (Protocol) 

<https://www.lacourt.org/division/juvenile/pdf/CompetencyProtoc

ol.pdf> [as of Mar. 28, 2023].) We take judicial notice of this 

document.
9

committed certain serious offenses (which include some of the 

charges against K.R. in this case),

4 the court may “order secure 

confinement of a minor for up to an additional year, not to exceed 

18 months from the finding of incompetence.” (Id., subd. 

(h)(5)(C).)

Section 709 does not explicitly provide for any additional 

competency hearings after the six-month hearing described in 

subdivision (h)(4).5 Neither party here disputes the propriety of a 

hearing after additional remediation is ordered pursuant to 

section 709, subdivision (h)(3). In certain cases involving 

incompetent adult defendants, courts have held that if “the 

statutes do not authorize . . . a [competency] hearing, the court’s 

convening of one . . . exceed[s] its jurisdiction.” (People v. Quiroz

(2016) 244 Cal.App.4th 1371, 1380; accord, In re Taitano (2017) 

13 Cal.App.5th 233, 249-256.) But as our Supreme Court has 

made clear, these cases are “not applicable where there is a 

statutory basis for holding a competency hearing.” (Jackson v. 

Superior Court (2017) 4 Cal.5th 96, 107.) For example, the 

statutory scheme for adults does not expressly require a court 

hearing to determine whether competence has been restored after 

state health officials file a certificate attesting to such 

restoration. (People v. Carr (2021) 59 Cal.App.5th 1136, 1144.) 

4 These offenses are listed in section 707, subdivision (b) 

and include, as relevant to this case, the murder and robbery

charges against K.R.

5 The statute does provide that the juvenile court “shall 

review remediation services at least every 30 calendar days for 

minors in custody and every 45 calendar days for minors out of 

custody prior to the expiration of the total remediation period.” 

(§ 709, subd. (g)(1).).
10

But such hearings are proper and necessary even though they are 

not expressly mentioned because the statutory structure 

“ ‘indicate[s] a legislative intention that such a hearing be 

afforded.’ [Citations.]” (Ibid.)

Similarly, section 709 contemplates a further competency 

hearing such as the one that occurred in this matter, and absurd 

results would ensue if we rejected the possibility of such a 

hearing even though it is not expressly mentioned in the statute. 

As noted above, section 709 specifies that an evidentiary hearing 

shall take place within the first six months of the initial 

recommendation from the “designated person or entity” if there is 

any dispute whether the juvenile has been remediated. (§ 709, 

subd. (h)(1).) At that hearing the court “shall order the minor to 

return to the remediation program” if the court finds it likely the 

minor will be remediated within six additional months (§ 709, 

subd. (h)(3).) Given this statutory language, as the court in J.J.

v. Superior Court (2021) 65 Cal.App.5th 222 (J.J.) noted,

“common sense suggests there must be some sort of hearing 

approximately 12 months after the initial finding of 

incompetency, because without a determination of the juvenile’s 

competence at the 12-month mark, there would be little purpose 

for extending the remediation period to that mark.” (Id. at 

p. 232.) Indeed, it is at least arguable that continued 

confinement for remediation after six months can withstand 

constitutional scrutiny only if there is a possibility of a further 

competency hearing. Otherwise, a minor’s continued 

confinement might violate constitutional restrictions on confining 

an incompetent defendant “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 
11

future.” (Jackson v. Indiana (1972) 406 U.S. 715, 738 [92 S.Ct. 

1845, 32 L.Ed.2d 435]; accord, In re Davis (1973) 8 Cal.3d 798, 

801.)

B. Section 709 Does Not Require Dismissal if 

Competency Related Legal Proceedings Are Not 

Concluded within One Year

K.R. argues that the one-year remediation limit in section 

709, subdivision (h)(3) is absolute, and that “Once 12 months 

[have passed] and the prosecution has not established that the 

client has been remediated, the juvenile court loses jurisdiction, 

and the juvenile petition must be dismissed.” Under section 709, 

subdivision (e), the court may suspend proceedings “for a period 

of time that is no longer than reasonably necessary to determine 

whether there is a substantial probability that the minor will 

attain competency in the foreseeable future, or the court no 

longer retains jurisdiction and the case must be dismissed.” 

According to K.R., by limiting the remediation period to no more 

than one year, the Legislature has set a maximum for the period 

reasonably necessary to determine whether the minor will attain 

competency, and at that point, the court must dismiss the case.

Issues of statutory construction are questions of law subject 

to a de novo standard of review. (California Teachers Assn. v. 

San Diego Community College Dist. (1981) 28 Cal.3d 692, 699.) 

“ ‘We consider first the words of a statute, as the most reliable 

indicator of legislative intent.’ ” (California Building Industry 

Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 

1041.) “ ‘ “We interpret relevant terms in light of their ordinary 

meaning, while also taking account of any related provisions and 

the overall structure of the statutory scheme to determine what 

interpretation best advances the Legislature’s underlying 
12

purpose.” ’ [Citation.] ‘If we find the statutory language 

ambiguous or subject to more than one interpretation, we may 

look to extrinsic aids, including legislative history or purpose to 

inform our views.’ [Citation.]” (In re A.N. (2020) 9 Cal.5th 343, 

351-352.)

Looking first to the words of section 709, subdivision (h)(3) 

sets a maximum time for remediation, but it neither states nor 

implies that the court loses jurisdiction at the end of the 

remediation period. Subdivision (e) indicates that the court must 

dismiss a case after it loses jurisdiction, but it does not set a 

condition for the loss of jurisdiction. Two additional provisions of 

section 709 do require the juvenile court to dismiss a petition in 

circumstances not applicable here. Under subdivision (f), the 

court must dismiss the case if a minor who is accused of only 

misdemeanor offenses is found to be incompetent, and the same 

is true under subdivision (h)(4) if the court finds at the six-month 

hearing that the minor is unlikely to be remediated within six 

more months. If the Legislature had meant to require a 

dismissal at the end of the remediation period, it presumably 

would have said so. (E.g., Delta Stewardship Council Cases

(2020) 48 Cal.App.5th 1014, 1052.)

We also disagree with K.R.’s contention that the court’s 

holding in J.J. supports his position. In that case, following an 

evidentiary hearing, the juvenile court found the remediation

services provided over the prior 12-month period had not restored 

the minor to competency. (J.J., supra, 65 Cal.App.5th at pp. 226-

227.) The Court of Appeal held that at that point, the juvenile 

court was required to release the minor from custody and dismiss 

the petition. (Id. at p. 225.) The court reasoned that, “Since a 

juvenile court must dismiss a juvenile proceeding at the six-
13

month hearing if there is no likelihood the juvenile will be 

remediated by the end of the 12-month remediation period (§ 709, 

subd. (h)(4)), it makes sense that the court must dismiss the 

petition at the 12-month hearing where the juvenile has not, in 

fact, been remediated by the end of the 12-month remediation 

period.” (Id. at pp. 233-234.) Here, unlike in J.J., the court made 

no finding that K.R. remained incompetent at the end of one 

year. Instead, the court was in the process of resolving a dispute 

between the parties regarding whether K.R. was competent 

following remediation. Thus, the requirement to dismiss the case 

under section 709, subdivision (h)(4) was not yet triggered.

K.R.’s interpretation of section 709’s maximum 12-month 

“remediation period” further does not accord with the purpose of 

that time frame. Although section 709 does not define the 

“remediation period,” the legislative history shows that it is the 

period during which juveniles are provided services designed to 

restore them to competency. (E.g., Cal. Bill Analysis, Assem. 

Conc. in Sen. Amend., Assem. Bill No. 1214 (2017-2018 Reg.

Sess.) Aug. 28, 2018, p. 6; Sen. Com. on Public Safety, com. on 

Assem. Bill No. 1214 (2017-2018 Reg. Sess.) June 26, 2018, pp. 5-

6, 9.) K.R.’s interpretation of section 709 thus poses a practical 

problem: A competency hearing cannot be completed 

instantaneously upon the completion of remediation services. 

Adopting K.R.’s position would effectively downsize the statutory 

remediation period to something meaningfully shorter, 

particularly when competency is contested. In order to allow 

enough time to hold a hearing and make a ruling within one year 

of the initial finding of incompetency, the court would need to 

schedule the hearing to begin before the deadline, including 

allotting enough time to conclude the hearing and rule before the 
14

one-year mark (and as illustrated here, an additional buffer in 

case something unexpected arose that delayed the court or 

counsel timely concluding the hearing). That would mean the 

last portion of the remediation period would be effectively 

unavailable, because even if a minor attained competency during 

that time, it would not be possible to complete a hearing and 

reinstate proceedings before the deadline. The Legislature may 

set any maximum remediation period it chooses consistent with 

constitutional restraints, but to allow for the possibility of 

restoration of competence up to the end of that period, there must 

be some allowance for a competency hearing after the 

remediation period has expired if the entirety of that period is 

necessary for remediation services.6

The author of Assembly Bill No. 1214 stated that the bill 

was intended to ensure that “vulnerable kids receive appropriate 

6 We note the Courts of Appeal are currently split on a 

similar issue involving adults, namely whether the maximum 

commitment period under Penal Code section 1370.1, subdivision 

(c)(1) for remediation services includes the period up to and 

including the court making its own determination whether 

competency has been restored. (Compare Rodriguez v. Superior 

Court (2021) 70 Cal.App.5th 628 [commitment period ends when 

certificate of restoration filed], review granted Jan. 5, 2022, 

S272129, with People v. Carr, supra, 59 Cal.App.5th 1136 

[commitment period includes time until trial court makes finding 

whether a defendant is restored to competency].) As shown by 

the above, we find the analogous reasoning of Rodriguez more 

persuasive that the juvenile “remediation period,” like the adult 

commitment period, “cover[s] only the time the defendant 

actually receives treatment to restore his or her competence” and 

“not to the entire period before the trial court’s [finding] . . . of 

restoration to competence.” (Rodriguez, supra, at p. 654.)
15

services . . . within a reasonable time frame in order to get them 

out of [juvenile] hall and in proper placement and care going 

forward.” (Sen. Com. on Public Safety, com. on Assem. Bill 

No. 1214, supra, p. 7.) The legislative history further notes that 

“Research on remediation services suggests a majority of youth 

can be remediated prior [to] a year if they are able to be

remediated” (id. at p. 9), so a hearing on whether a juvenile was 

restored to competency that takes place after the 12-month 

period should occur infrequently because it will be the rare case 

where remediation services consume the entire 12-month period. 

Given the facts before us, we do not believe it violates either the 

letter or spirit of section 709 to allow for a reasonable period of 

time after the expiration of the remediation period for the court 

to conduct a competency hearing. The court may suspend 

proceedings “no longer than reasonably necessary to determine 

whether there is a substantial probability that the minor will 

attain competency in the foreseeable future.” (§ 709, subd. (e).) A 

hearing to determine whether the minor actually has regained 

competency after receiving remediation services is necessary to 

determine whether the suspension of proceedings may end.

To the extent a court hearing addressing whether 

competency has been restored concludes after the applicable 

statutory period for remediation services, any such delays must 

account for the requirement that “ ‘continued commitment [of an 

incompetent defendant] must be justified by progress toward 

[the] goal’ ” of restoring him to competence. (In re Davis, supra, 8 

Cal.3d at p. 804; accord J.J., supra, 65 Cal.App.5th at pp. 238-

239.) The three-month delay from the end of the remediation 

period until the court’s ruling that K.R. was competent to stand 

trial was admittedly long, but in the circumstances of this case, 
16

the delay was not unreasonable. Nearly the entire 12-month 

period was used here because of delays from the Covid-19 

pandemic, and because litigation over the People’s expert delayed 

that expert examining K.R. and preparing a report. Once the 

hearing began, the judge presiding over the case recused himself 

in the midst of the hearing after learning that he was acquainted 

with a percipient witness in the case, and it required some time 

before the new judge could conclude the proceedings.

Our holding on this question should not be interpreted as a 

license to indulge delay and hold minors in secure confinement 

for any extended period following the conclusion of remediation 

services. The circumstances in this case represent the exception, 

not the rule. In most instances, juvenile courts should be able to 

make a final determination regarding a minor’s competency 

before the one-year remediation period has expired, or very soon 

thereafter. It is possible that our analysis in this case would be 

different if the juvenile court had not had a compelling 

justification for the delay here before the final ruling.

Even if section 709 is read to require the court’s 

adjudication of whether remediation services have restored 

competency also must conclude during the 12-month maximum 

for remediation services, dismissal here was not warranted. 

Section 709, subdivision (h)(5)(C) allows the juvenile court to 

order minors accused of serious offenses to remain in “secure 

confinement . . . for up to . . . 18 months from the [initial] finding 

of incompetence.” The People acknowledge that subdivision 

(h)(5)(C) does not extend the maximum remediation period

beyond 12 months, and we agree. Nor does it permit continuing 

to confine a juvenile after the court has determined remediation 

services as set forth in section 709 have not or will not restore a 
17

juvenile to competency. (See J.J., supra, 65 Cal.App.5th at 

p. 242.) But subdivision (h)(5)(C) did permit the juvenile court to 

detain K.R. to resolve issues involving his competence past the 

12-month remediation period with reasonable promptness.

K.R. argues that section 709, subdivision (h)(5)(A) places a 

restriction on the application of subdivision (h)(5)(C). 

Subdivision (h)(5)(A) sets forth several factors7 the court must 

7 K.R also contends that his continued confinement was 

improper because the juvenile court did not make specific 

findings on these factors. He has forfeited this argument by 

failing to object before the juvenile court. At a hearing on 

October 13, 2021, the court stated as follows: “The court has . . . 

considered the factors set forth in [section] 709[, subdivision 

(h)(5)(A)] . . . and finds that upon consideration of these factors 

. . . it is in the best interest of K.R. and the public safety for him 

to remain in his current custodial facility.” K.R.’s attorney did 

not ask the court to clarify its ruling or apply each factor listed in 

subdivision (h)(5)(A) individually. At another hearing on May 12, 

2022, the eve of the expiration of the one-year remediation 

period, the court stated, “This case involves an offense listed in 

subdivision (b) of [section] 707. . . . [¶] The court finds that it is 

necessary and in the best interest of K.R. and the public safety to 

order secure confinement of K.R. . . . until the hearing is 

concluded over the defense objection.” K.R.’s attorney had 

objected to the extension of K.R.’s confinement beyond one year, 

but did not argue that the court’s ruling was improper for failing 

to consider all of the factors in section 709, subdivision (h)(5)(A) 

explicitly. The purpose of the forfeiture rule is “to allow the trial

court to correct its errors and ‘to prevent gamesmanship by the 

defense.’ ” (People v. Arredondo (2019) 8 Cal.5th 694, 710.) By 

waiting until this writ petition to address the issue, K.R. has 

prevented the court from considering the question or explaining 

its reasoning in the first instance.
18

consider before ordering the secure confinement of a minor 

beyond six months, one of which is “[w]here the minor will have 

the best chance of obtaining competence.” (§ 709, subd. 

(h)(5)(A)(i).) Because K.R. was no longer receiving remediation 

services beyond the one-year mark, he argues that the possibility 

of helping him obtain competence could no longer justify his 

secure confinement.

This argument proves too much. As we noted above, we 

agree with K.R. that section 709, subdivision (h)(3) establishes a 

one-year maximum remediation period. But the Legislature, in 

enacting subdivision (h)(5)(C), plainly intended for juvenile 

courts, in appropriate cases, “to order secure confinement of a 

minor for up to . . . 18 months from the finding of incompetence,” 

i.e., after the end of remediation. K.R.’s interpretation would 

effectively write subdivision (h)(5)(C) out of the statute. We must 

avoid a statutory “ ‘construction making some words surplusage’ ” 

(People v. Valencia (2017) 3 Cal.5th 347, 357), “and every word 

should be given some significance, leaving no part useless or 

devoid of meaning.” (City and County of San Francisco v. Farrell

(1982) 32 Cal.3d 47, 54.)

We therefore interpret section 709, subdivision (h)(5)(A)(i) 

as defining one of several relevant factors the court should 

consider when deciding whether to order continued secure 

confinement, not an absolute requirement. When a minor is 

accused of serious offenses, section 709, subdivision (h)(5)(A)(i) 

does not bar the court from ordering secure confinement beyond 

the end of the remediation period under the particular 
19

circumstances of this case to conclude a competency hearing 

following the conclusion of remediation services.8

C. The Juvenile Court Did Not Err by Allowing the 

People to Retain an Expert to Evaluate K.R.

K.R. argues that the juvenile court erred by allowing an 

expert appointed by the People to evaluate him in May 2022, 

almost one year after the court initially found him incompetent. 

According to K.R., the examination was improper because it came 

too late, was contrary to the terms of section 709, and because the 

People failed to comply with the Civil Discovery Act in petitioning 

the court for the examination. We agree with K.R. that the 

prosecutor acted improperly in failing to comply with the Civil 

Discovery Act, but we disagree that this requires ordering the 

juvenile court to strike the expert’s testimony.9

8 Our decision on this issue is limited to the circumstances 

of this case. We need not and do not decide whether section 709, 

subdivision (h)(5)(C) allows for secure confinement of minors 

beyond the one-year remediation period in any other situation or 

for any other reason.

9 The People argue that we should reject these arguments 

as untimely. “Appellate courts generally require that 

nonstatutory writ petitions be filed within 60 days of service of 

the challenged order, i.e., the same 60-day period applicable to 

appeals.” (St. Mary v. Superior Court (2014) 223 Cal.App.4th 

762, 771-772, fn. 14.) In this case, the juvenile court issued its 

order allowing the People’s expert to examine K.R. on April 29, 

2022. K.R. filed his writ petition 78 days later, on July 15. But 

we have “discretion to hear a writ petition beyond the 60-day 

period.” (People v. Superior Court (Lopez) (2005) 125 Cal.App.4th 

1558, 1563.) Because there is no indication that the relatively 
20

1. Relevant Proceedings

On April 8, 2022, after a court-appointed psychologist filed 

a report concluding that K.R. was incompetent and unlikely to 

attain competency in the foreseeable future, the People filed a 

motion to appoint their own expert to evaluate K.R. The court 

granted the motion, and on April 20 signed an order to allow the 

expert, Dr. Kelli Ward, to examine K.R. On April 22, the court 

granted a defense motion for its own expert, Dr. David Contreras, 

to evaluate K.R. Ward went to juvenile hall on April 26 to 

examine K.R., but he refused to speak with her on advice of 

counsel. K.R.’s attorney objected to the examination on the 

grounds that he had not received notice of the court’s order, and 

that the prosecutor had not specified the time, place, manner, 

and scope of the examination, as required by section 709. At a 

hearing on April 29, the court found that although the motion did 

not comply with the terms of the statute, K.R.’s attorney had 

subsequently been provided with the necessary information. The 

court ordered the examination to go ahead.

Ward examined K.R. on May 9, 2022. She conducted 

several tests on K.R. that the previous experts had not employed. 

In addition, Ward did not use the Juvenile Adjudicative 

Competence Interview (JACI), a test that all of the previous 

experts had employed. Ward concluded that K.R. was competent 

to stand trial, and that he had been malingering, or feigning a 

developmental disability, in order to avoid going to trial. In 

minor delay in the filing of the petition has prejudiced the People, 

and the writ was timely with regard to the motion to dismiss 

pursuant to section 709, we will exercise our discretion to address 

the issues surrounding the expert’s evaluation on the merits.
21

reaching this conclusion, Ward relied on several apparent 

inconsistencies in K.R.’s behavior, as well as on tests 

administered by Ward herself and by prior evaluators.

Ward noted that in recorded jailhouse conversations10 with

a fellow inmate, K.R. appeared to understand a great deal about 

the justice system. He knew that he could be held for no more 

than 72 hours without being charged with a crime, worried that 

he might be charged as an adult because he was 18 years old at 

the time of his arrest, and knew to exercise his Miranda rights to 

avoid giving the police information. He believed he could beat 

the case because O.J. Simpson had been acquitted even though 

the police discovered blood on his clothing. He also told the other 

inmate that he was considered “retarded,” and that if he could 

not beat the charges by other means, he would use the Regional 

Center—where juveniles are diagnosed with developmental 

disabilities—as a fallback to fight the case. Ward also reviewed 

recordings of phone calls between K.R. and his mother,11 in

10 At oral argument, K.R.’s attorney acknowledged having 

received the transcripts of the recordings from this Perkins

operation (see Illinois v. Perkins (1990) 496 U.S. 292 [110 S.Ct. 

2394, 110 L.Ed.2d 243] (Perkins)) in discovery at an earlier stage 

of the case. The court-appointed experts who examined K.R.

initially and after six months of remediation seemingly did not 

have access to these transcripts, however, as apparently neither 

the prosecutor nor defense counsel provided them to those 

experts.

11 Ward stated that she received recordings of 

approximately eight phone calls, two of which she included in her 

report. The two calls described in Ward’s testimony and report 

appear to have been outgoing calls from juvenile hall recorded 
22

which K.R. reported what had happened in court that day, 

suggesting that he understood the proceedings. K.R. knew that 

he would be sent home if the court ultimately found him 

incompetent. According to Ward, K.R.’s behavior in these 

recordings indicated that he was capable of a level of planning 

and thinking inconsistent with his previous diagnoses.

Ward also pointed to test results that she believed were 

indicative of malingering. One of the previous evaluators 

administered a memory test designed to screen for malingering. 

K.R. took the test three times and scored well within a range 

indicating malingering. His scores were consistent with those 

someone could achieve by choosing answers at random. On 

another occasion, when attempting a test requiring him to put 

blocks together to form a shape, K.R. appeared to perform the 

test correctly at first, then took the blocks apart and rearranged 

them incorrectly. Ward believed K.R.’s inconsistent performance 

on cognitive tests was also likely due to malingering. In 

elementary school, K.R. had scored a 92, in the average range, on 

a cognitive assessment test, but when he was administered an IQ 

test at age 14 during his first juvenile delinquency proceedings, 

his score dropped to 52. Ward administered another IQ test 

during her evaluation, on which K.R. scored a 67. According to 

Ward, unless K.R. had suffered brain damage or other significant 

shortly after court hearings on December 2 and December 16, 

2021. Contreras, the defense expert, stated that he listened to 

recordings of 13 phone calls. It is not clear from the record when 

the other calls took place, nor when the prosecution obtained the 

recordings of them. Thus, we cannot determine whether it would 

have been possible to provide recordings of any calls to either of 

the previous court-appointed experts.
23

trauma between tests, variations of that magnitude could only be 

explained by “motivational issues.”

Ward concluded that K.R. was able to understand and 

assist his attorney in court proceedings, that he did not suffer 

from a developmental disability, and that he was competent to 

stand trial.

The defense expert, Contreras, reviewed the same phone 

recordings and jail transcripts but reached the opposite 

conclusion. He acknowledged that these transcripts “showed that 

[K.R.] had awareness of what was potentially going on in his 

case,” but this was not sufficient to establish competency. 

Contreras noted that in the phone calls, K.R. often seemed not to 

remember details about what had happened in court that day. In 

addition, in the recordings K.R. seemed to genuinely want to 

learn about his case, something Contreras viewed as inconsistent 

with malingering. To have maintained a charade of ignorance 

over the entire course of the case “would reflect a level of 

sophistication that would be vastly inconsistent with past 

educational records, psychological testing, and previous 

behavioral observations.”

The juvenile court did not agree with all of Ward’s

conclusions. In particular, the court found that K.R. did suffer 

from an intellectual disability, “particularly as it applies to his 

ability to process learning a language.” But the court found the 

jail recordings persuasive, indicating that K.R. understood the 

way the court system worked and his rights within it. On that 

basis, the court found that K.R. was competent to assist his 

counsel and understand the proceedings.
24

2. The Examination Was Not Contrary to the Terms of 

Section 709

Two different subdivisions of section 709 provide for 

evidentiary hearings. Subdivision (c) addresses the initial 

determination of the minor’s competency. It states that, unless 

the parties stipulate that the minor is incompetent, “[t]he 

question of the minor’s competency shall be determined at an 

evidentiary hearing.” Subdivision (h)(1) provides for a second 

evidentiary hearing after six months.12 A third provision, 

subdivision (b)(6), allows “[t]he district attorney or minor’s 

counsel [to] retain or seek the appointment of additional qualified 

experts who may testify during the competency hearing.”

K.R. contends that the parties are allowed to appoint their 

own experts only at the initial evidentiary hearing. We disagree. 

Nothing in the statute suggests that different evidentiary 

hearings should proceed by different rules. To the contrary, 

section 709, subdivision (h)(1) states that “[t]he provisions of 

subdivision (c) shall apply at this stage of the proceedings.” K.R. 

notes that the provision allowing the parties to appoint their own 

experts does not appear in subdivision (c), but rather in 

subdivision (b)(6). Because most of the provisions in subdivision 

(b) describe the expert’s role at the initial competency hearing, 

12 In this case, the evaluation by a prosecution expert took 

place in the context of a third competency hearing near the end of 

the one-year remediation period. As we explain above (see 

Discussion, part A, ante), section 709 implicitly allows for such 

hearings to occur. In the absence of explicit instructions from the 

Legislature, we assume the rules applicable to six-month 

hearings under subdivision (h)(1) also apply to subsequent 

competency hearings.
25

and because subdivision (h)(1) does not explicitly mention 

subdivision (b), K.R. argues that the People’s right under 

subdivision (b)(6) to employ an expert to examine a minor does 

not apply at a subsequent hearing. Although K.R. does not say 

so, the logic of this argument, if accepted, would also read section 

709 to bar a juvenile from retaining his or her own expert after 

the initial competency hearing.

This argument attempts to parse the text of the statute too 

finely. Section 709, subdivision (h)(1), in stating that “[t]he 

provisions of subdivision (c) shall apply,” implies that the rules 

for proceedings under subdivision (c), including those pertaining 

to the role of experts, also apply. Furthermore, subdivision (b)(6) 

states that the parties may retain their own experts to “testify 

during the competency hearing,” without specifying the first 

competency hearing only. The other provisions in subdivision (b) 

appear primarily aimed at defining the qualifications and 

conduct of appointed experts at the first competency hearing, but 

there is no reason they would not also apply to experts who 

testify at subsequent hearings.

We note the circumstances of this case suggest that the 

appointment of a party’s own expert can sometimes be more 

useful at a later hearing than at the initial hearing. Issues 

surrounding a minor’s competency that were not initially 

apparent may surface several months later. In a similar 

situation in a case involving competency proceedings for an adult 

defendant, the court in Baqleh v. Superior Court (2002) 100 

Cal.App.4th 478 rejected applying the text of the statute 

narrowly to bar an examination by the prosecution’s expert. The 

defendant argued that because the statutes did not explicitly 

allow for the prosecution’s expert to examine the defendant, no 
26

examination was permitted. (Id. at p. 489.) The court disagreed: 

“Considering that a party that wished to dispute the opinion of a 

court-appointed expert would be unable to do so effectively 

without the use of its own expert, the absence of an express 

statutory restriction on the use of such experts renders it highly 

implausible that the Legislature intended any such restriction.” 

(Id. at p. 490.) The same logic counsels in favor of allowing the 

parties to retain their own experts to examine the minor and 

testify at all evidentiary hearings in competency proceedings for 

minors.

3. The People Were Not Dilatory in Seeking to Appoint 

their Own Expert

K.R. contends that the trial court erred by allowing the 

remediation period to be extended as a result of the People’s 

expert’s examination of K.R. We disagree. As we explained 

above (see Discussion, part B, ante), the court is not required to 

dismiss a case immediately when the remediation period expires 

without a finding that the minor has attained competency. In 

this case, there is no indication that the prosecution waited an 

unnecessarily long time before seeking to retain an expert to 

examine K.R., nor that the expert’s evaluation unduly delayed 

the case.

K.R. proposes no standard for judging whether a request to 

appoint an expert has come too late. In the absence of any 

statutory limitation on the time to appoint an expert, we must 

defer to the discretion of the juvenile court in setting a limit, and 

in this case we perceive no abuse of that discretion. The People 

first sought to retain their expert on April 8, 2022, the day after 

the court’s appointed expert, Dr. Oona Appel, testified that, in 

her opinion, K.R. was incompetent and unlikely to attain 
27

competency within the foreseeable future. The prosecution might 

have anticipated the need to retain its own expert sooner—Appel 

filed her report with the court in late February, with an update 

on March 8—but the prosecutor may have recognized that she 

needed to retain her own expert only after examining Appel at 

the hearing on April 7. Nearly a month of litigation ensued over 

the question of whether Ward, the People’s expert, should be 

allowed to examine K.R., but even so, Ward managed to conduct 

her examination and file her report within a few days, just before 

the May 13 end of the remediation period. The court most likely 

would have issued its final ruling on K.R.’s competency sooner, 

except that the judge assigned to the case recused himself from 

the case during Ward’s testimony on May 18 after realizing that 

he was acquainted with one of the percipient witnesses.

To be sure, the prosecutor might have been able to reduce 

some of the delays in the case by requesting to appoint a 

prosecution expert sooner, or by providing the transcripts of the 

Perkins operation to Appel. But this does not mean the juvenile 

court abused its discretion by allowing the appointment of a 

prosecution expert in April 2022.

4. The People’s Failure to Comply with the Civil 

Discovery Act when Appointing its Expert Did Not 

Prejudice K.R.

When the People intend to appoint an expert to examine a

minor, they must first “petition[ ] the court for an order pursuant 

to the Civil Discovery Act (Title 4 (commencing with Section 

2016.010) of Part 4 of the Code of Civil Procedure).” (§ 709, subd. 

(b)(6); see also Baqleh v. Superior Court, supra, 100 Cal.App.4th 

at p. 491 [holding that the Civil Discovery Act applies to 

examinations in adult competency hearings].) The relevant 
28

section of the Civil Discovery Act for this purpose is Code of Civil 

Procedure section 2032.310, which provides that when a party

seeks to conduct a mental examination, it must file a motion 

“specify[ing] the time, place, manner, conditions, scope, and 

nature of the examination, as well as the identity and the 

specialty, if any, of the person or persons who will perform the 

examination. The motion shall be accompanied by a meet and 

confer declaration under [s]ection 2016.040.” (Code Civ. Proc., 

§ 2032.310, subd. (b).)

We agree with K.R. that the People in this case failed to 

comply with the statute. On April 8, 2022, the People filed their 

motion seeking to retain an expert to evaluate K.R., but did not 

include a meet and confer declaration or any of the information 

regarding the examination specified in Code of Civil Procedure 

section 2032.310. On April 20, the court signed an order 

instructing the probation department and K.R. to allow the 

expert to examine K.R., but K.R.’s attorney told the court that he 

was not aware of the order until Ward went to the juvenile hall to 

conduct the examination, and K.R. called him. K.R.’s attorney 

instructed K.R. not to participate in the examination, and the 

court held a hearing to resolve the matter. At the hearing, the 

court granted the motion to allow the People’s expert to examine 

K.R., even though the prosecutor never filed a motion that

complied with the Civil Discovery Act.

If the juvenile court erred by granting the motion in these 

circumstances, however, the error was harmless.13 Although the 

13 Because K.R.’s claim is based solely on the application of 

state statutes, we review for harmless error under the Watson

standard. (People v. Epps (2001) 25 Cal.4th 19, 29.) That is, he 
29

People’s motion was defective, K.R.’s attorney was able to learn 

the relevant information and challenge the scope of the 

evaluation before it occurred. The prosecutor gave K.R.’s 

attorney a copy of Ward’s curriculum vitae before the hearing, 

and K.R.’s attorney spoke with Ward about the tests she planned 

to conduct. Afterward, he acknowledged that Ward “does seem 

qualified pursuant to the statute,” and that “she’s perfectly 

acceptable as an evaluator in this kind of case.” K.R. argues that

the prosecutor’s disclosure was insufficient because Ward told his 

attorney about “certain tests that she would possibly administer,” 

but did not say exactly which tests she would use “because it 

depended . . . on how the evaluation was going.” Ward’s answer 

seems reasonable in light of the complexities of a psychological 

exam, and we have no reason to believe she would have been able 

to produce a more complete answer if the People’s motion had 

complied with the Civil Discovery Act.14

must show that “it is reasonably probable that a result more 

favorable to the appealing party would have been reached in the 

absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 

836.)

14 The court’s effort to ameliorate the inadequacies of the 

prosecutor’s motion distinguishes this case from Baqleh v. 

Superior Court, supra, 100 Cal.App.4th 478. In Baqleh, as here, 

the prosecution failed to comply with the Civil Discovery Act in 

seeking to employ an expert to evaluate an incompetent 

defendant. The court granted the defendant’s writ petition and 

blocked the evaluation because, “Among other things, the order 

permits unspecified individuals to examine petitioner at times 

and places of their choosing with respect to matters that may be 

unrelated to his competence to stand trial.” (Baqleh, supra, at

p. 492.)
30

K.R. argues that if the motion had complied with the Civil 

Discovery Act, it would have revealed that Ward did not intend to 

use the JACI during the examination. The superior court’s 

protocols for juvenile competency proceedings state that when a 

panel expert examines a juvenile, the JACI “shall be used unless 

its use is contraindicated.” (Protocol, supra, at p. 4.) We disagree 

that Ward’s failure to use the JACI was a valid basis for 

challenging her examination of K.R. The court protocols “may 

serve as useful guidance concerning the placement, detention, 

and treatment of minors found incompetent in delinquency 

proceedings. But [they do] not independently give rise to any 

claim for relief because [they do] not by [themselves] have any 

binding force of law. (In re Albert C. (2017) 3 Cal.5th 483, 492.) 

Second, by their own terms, the protocols require use of the JACI 

in examinations by panel experts, and they do not purport to 

apply to experts retained by one of the parties. There is no 

reason to believe the court would have required Ward to use the 

JACI in her examination if the issue had been presented.

K.R. also objects to Ward’s employment of “interrogation” of 

K.R. in her evaluation. In making this argument, K.R. refers to a 

section of Ward’s testimony in which she stated, “one of the 

things that I always ask people that I’m evaluating for 

competency is, ‘what do you say happened?’ ” Ward recounted 

that when K.R. responded to this question, “he said he didn’t do 

it. He didn’t kill anybody, which is an alternative explanation for 

his behavior. And he also says he had no memory of anything 

that happened that day.” There is no indication that Ward asked 

K.R. anything more about his participation in the alleged 

offenses, and we are aware of nothing else in the record that 

would constitute an interrogation. K.R. cites no authority to 
31

support his claim that Ward’s question was improper. To the 

contrary, the Supreme Court has recognized that “determining a

defendant’s mental competency requires an assessment of the

defendant’s ability to understand the nature of the proceedings 

and to assist counsel in conducting a defense. ([Pen. Code,] 

§ 1367, subd. (a).) To make this assessment, the mental health

expert will want to evaluate the defendant’s ability to discuss the 

facts of the case, even though the defendant’s guilt of the offense 

charged is not relevant to the inquiry.” (People v. Pokovich (2006) 

39 Cal.4th 1240, 1251.) Questions from a prosecution expert 

about the crime in the course of a mandatory evaluation do not 

violate the defendant’s privilege against self-incrimination so 

long as “the defendant’s statements during the examination are 

inadmissible for any purpose at trial.” (Id. at p. 1252.) We see no 

reason a different rule would apply in juvenile delinquency 

proceedings.

At the end of the hearing where the court ordered Ward’s 

examination to proceed, the court stated that, “The time, place, 

manner, conditions, and scope of the examination have now been 

discussed with the parties on the record, as have the expert’s 

qualifications and proposed scope of examination. This reality 

provides the court with some assurances that K.R.’s statutory 

rights under the civil discovery statute have been duly 

considered.” The court’s assessment seems generally accurate, 

even if the prosecutor did not fulfill the requirements of section 

709, subdivision (b)(6) in filing her motion.

When Ward testified, K.R.’s attorney cross-examined her 

extensively. In addition, K.R.’s own expert, Contreras, responded 

to Ward’s report and explained why he believed Ward was wrong. 

These responses were apparently effective. In explaining its 
32

ruling that K.R. was competent to stand trial, the court stated 

that it disagreed with Ward’s conclusion that K.R. did not have 

an intellectual disability. The court did not rely on Ward’s 

evaluations and test results. Instead, what “tip[ped] the scale for 

the court” was listening the recordings of K.R. speaking with 

fellow inmates and with his mother, in conversations indicating 

that he understood the court proceedings and “that he could use 

his eligibility as a regional center consumer to get the case 

dismissed.” The record does not show that if the People’s motion 

had complied with the Civil Discovery Act, or even if Ward had 

not examined K.R. at all, there is a reasonable probability that he 

would have attained a better outcome.

DISPOSITION

The petition for writ of mandate is denied.

CERTIFIED FOR PARTIAL PUBLICATION

WEINGART, J.

We concur:

CHANEY, J.

BENDIX, Acting P. J.