J.J. v. Superior Court

Filed 6/7/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

J.J.,
Petitioner,
v. A162060
THE SUPERIOR COURT OF THE
COUNTY OF CONTRA COSTA,
(Contra Costa County
Respondent,
Super. Ct. No. J1900651)

THE PEOPLE,
Real Party in Interest.

Does Welfare and Institutions Code section 709, which describes
incompetency proceedings for minors who are subject to delinquency petitions
in juvenile court, allow the secure confinement of those minors beyond the
statutory period for remediation of their competency?1

1 Unless indicated otherwise, all statutory references are to the Welfare
and Institutions Code.
1
 Petitioner J.J. was alleged to have committed offenses within the
meaning of section 707, subdivision (b). The juvenile court declared him
incompetent to stand trial, suspended the delinquency proceedings against
him, and ordered remediation services for J.J. in juvenile hall (§ 709). After
six months, the court extended remediation and J.J.’s confinement to 12
months, at which point the court found that J.J. still had not attained
competency. Although the maximum period for remediation under section
709 is stated to be 12 months, the court ordered his continued confinement
pending finalization of an exit order and post-release services to assist his
reentry into the community, finding the confinement necessary and in the
best interests of the minor and public safety. (See § 709, subd. (h)(5)(C)
[allowing confinement of certain juveniles for up to 18 months where
“necessary and in the best interests of the minor and the public’s safety”].)
We agree with J.J. that the juvenile court lacked authority to order his
continued confinement under section 709, subdivision (h)(5)(C). Once the
court determined that J.J. had not attained competency at the end of the
statutory remediation period, no further confinement could be ordered given
the state of the record in J.J.’s case, and the court was required to dismiss the
delinquency petition and release J.J. (in the absence of civil commitment
proceedings). Furthermore, the purpose of section 709 is to protect a minor
from juvenile proceedings during incompetency and to provide remediation
services with a goal of restoring the minor to competence. Section 709,
subdivision (h)(5) does not permit the involuntary confinement of a minor
beyond the statutory remediation period for the purpose of arranging post-
release services that are not designed to restore competency.

2
 I. FACTS AND PROCEDURAL HISTORY
In July 2019, the Contra Costa County District Attorney filed a
delinquency petition pursuant to section 602, alleging that J.J. had
committed nine felony counts of forcible lewd conduct with a minor (Pen.
Code, § 288, subd. (b)(1)). The next day, J.J. was detained in juvenile hall.
In August 2019, J.J.’s counsel expressed a doubt as to his competency
and the court suspended the delinquency proceedings pursuant to section
709. At a contested competency hearing on November 20, 2019, Dr. Karen
Franklin opined that J.J. was incompetent to stand trial. The court found
him incompetent, continued his detention, and referred him to competency
remediation services in juvenile hall.
After J.J. had been confined for six months, the court held an
evidentiary hearing on June 2, 2020, to determine whether J.J. was
remediated and his competency restored. (§ 709, subd. (h)(1).) The court
found that he remained incompetent but extended the remediation period for
six months based on a further finding that J.J. could likely be remediated
within that time. (§ 709, subd. (h)(3).) J.J. remained in juvenile hall.
In September 2020, Dr. Franklin submitted a report of her reevaluation
of J.J.’s competence, opining that he remained incompetent to stand trial.
Diagnosed with Mild Intellectual Disability, J.J. was in the eleventh grade
but read at a second-grade level, his IQ score was lower than 99.6 percent of
children his age, his learning ability score was worse than 99.9 percent, and
his capacity to focus attention was poorer than 93 percent. Although
provided competency training, J.J. had difficulty in the program and still did
not understand pleas and could not articulate a defense. Dr. Franklin opined
that “[m]ost prominently impaired were [J.J.’s] capacities to meaningfully
consult with counsel and assist in preparing his defense,” as he lacked

3
capacity to rationally weigh and evaluate his options, seek out relevant
information, retain essential information, articulate rational support for
decisions, “[e]ngage meaningfully in this defense,” “participate in planning
strategy,” “[c]hallenge witnesses,” or “testify relevantly.” Moreover, his
“capacity to consult meaningfully with counsel and assist in the preparation
of his defense remain essentially unchanged” since the last competency
examination. In fact, his comprehension of very basic information degraded
over time, so “even if his attorneys work intensively with him to break down
case issues so that he can understand them, any comprehension he attains
may be fleeting.” Dr. Franklin did not indicate that J.J.’s competency might
be restored with further remediation services.
On December 15 and 31, 2020, roughly one year after the initial finding
of incompetence, the court held another contested competency hearing.2 Dr.
Franklin’s opinion was submitted to the court; the prosecutor presented a
witness who testified that J.J. was nonetheless competent to stand trial,
based largely on a mock trial. In addition to issues of J.J.’s competency, the
court and parties discussed whether juveniles who (like J.J.) were alleged to
have perpetrated offenses under section 707, subdivision (b), could be
confined beyond the statutory remediation period pursuant to section 709,
subdivision (h)(5)(C). The core debate—echoed in this appeal—centered
around this: while subdivision (h)(3) of section 709 caps the remediation
period at 12 months after the initial finding of incompetency, subdivision
(h)(5) allows for secure confinement up to 18 months for juveniles alleged to

2
The parties stipulated at a hearing on November 13, 2020, that the
deadline for competency remediation under section 709, subdivision (h)(3)
was tolled for one month, given Emergency Rule 7(e) and the fact that J.J.
had not received remediation services for a month due to the COVID-19
pandemic. On December 15, 2020, the court ruled that the period was tolled
due to the unavailability of remediation services, not Emergency Rule 7(e).
4
have committed section 707, subdivision (b) offenses, upon a finding that
such confinement would be in the best interests of the minor and the public’s
safety.
On December 31, 2020, the juvenile court issued a minute order stating
as follows: “The Court finds minor has not attained competency. The Court
finds, pursuant to WIC 709(h)(5)(C) that it is necessary and in the best
interests of the minor and the public safety for the minor to remain in secure
confinement in juvenile hall pending the development of an exit plan and
services for the minor to assure he has appropriate support upon his release
from custody. Probation shall prepare a report for next hearing with an exit
plan for minor upon dismissal of petition and release of minor so that he can
be released to [the] community with all supportive therapeutic and housing
services in place. . . . Probation shall consult with and work with father in
connection with the plan and his needs to assist the minor in successfully and
safely transitioning back into the community.” (Italics added.)
On January 12, 2021, the court continued J.J.’s detention in juvenile
hall until February 23, 2021, pending the finalization of out-of-custody
transition services. Through counsel, J.J. asked the court to be released
because his continued confinement violated his due process and equal
protection rights. The court declined, explaining that it was in J.J.’s “best
interest, not just all of ours, [J.J.] needs these services, [J.J.]’s best interest,
and the safety of the community, to keep him in the juvenile hall.” The court
based its conclusion on the severity of the delinquency allegations and the
level of services J.J. had received.
On February 3, 2021, J.J. filed a motion in the juvenile court for his
immediate release and dismissal. At a hearing on February 9, 2021, the
prosecutor insisted that section 709, subdivision (h)(5)(C) allowed

5
confinement of a juvenile charged with offenses under section 707,
subdivision (b) for 18 months, and the period between the 12-month cutoff for
remediation (subdivision (h)(3)) and the 18-month cutoff for confinement
(subdivision (h)(5)(C)) could be used for “getting services in place” for the
juvenile and to “bridge the gap” between confinement on the section 602
petition and filing a civil commitment. J.J.’s counsel countered that J.J.’s
release was required because, inter alia, the remediation period had ended
without J.J. regaining competence.
At the conclusion of the February 9, 2021 hearing, the juvenile court
denied J.J.’s motion. The court ordered him to remain in juvenile hall until
February 23, 2021, pursuant to section 709, subdivision (h)(5)(C), while
services were set up for his return to the community.
J.J. sought writ relief in this court, seeking reversal of the juvenile
court’s order of February 9, 2021, and an order requiring his release and the
dismissal of the charges against him.3 We obtained briefing from the parties,
who each propose conflicting interpretations of the relevant statutes, yet
agree that the juvenile court’s statutory construction was problematic and
that writ relief should be granted.

3
The present petition is a follow-up to an initial writ petition J.J. filed
on February 1, 2021, which we denied because J.J. had not (1) provided an
adequate record to enable informed review (Upshaw v. Superior Court (2018)
22 Cal.App.5th 489, 497, fn. 4 [“[I]t is a writ petitioner’s burden to present a
procedurally and substantively adequate writ petition. . . .”]; Sherwood v.
Superior Court (1979) 24 Cal.3d 183, 186–187; Cal. Rules of Court, rule
8.486(b)(1)), or (2) demonstrated that he initially exhausted other adequate
remedies at law in the juvenile court by way of a noticed motion, to
commence a process by which his contentions could be meaningfully and
thoroughly vetted in that court in the first instance. This refiled petition
cured the record deficiencies, and followed motion proceedings in the juvenile
court.
6
 We decided writ review should be granted to resolve these questions of
first impression of importance to the juvenile bench and bar, which bear not
only on J.J.’s claim of unlawful confinement but also future cases involving
the detention of incompetent youth beyond the one-year statutory
remediation period. (Hogya v. Superior Court (1977) 75 Cal.App.3d 122,
129–130; see also Omaha Indemnity Co. v. Superior Court (1989) 209
Cal.App.3d 1266, 1273–1274.) “[G]iven that the petition raised a question of
first impression appropriate for resolution in a published opinion, we
deliberately chose to issue an OSC [order to show cause] instead of an
alternative writ, since the latter procedure would have permitted reversal of
the challenged order with the undesirable result of potentially rendering the
issue moot.” (Paul Blanco’s Good Car Company Auto Group v. Superior
Court (2020) 56 Cal.App.5th 86, 99.) Cognizant of the inherent urgency of the
situation and J.J.’s claim of irreparable harm, we expedited further briefing
and our review of this matter.
Meanwhile, on February 23, 2021—nearly two months after the
juvenile court found that J.J. had not regained competency under section 709
– the district attorney filed a petition to commit J.J. pursuant to section
6500.4 J.J. filed a demurrer to the commitment petition. On March 9, 2021,
the court overruled the demurrer and ordered J.J. detained pursuant to the
section 6500 petition. The court granted J.J.’s motion to dismiss the section
602 delinquency petition.
On March 12, 2021, the district attorney filed a motion to reconsider
the dismissal of the delinquency petition so the juvenile records would
remain unsealed for the civil commitment proceedings. The court reinstated

4
Under section 6500, subdivision (b), a person with a developmental
disability may be committed to the Department of Developmental Services for
treatment and residential placement if found to be a danger to self or others.
7
the delinquency petition on March 19, 2021 and set a jury trial on the civil
commitment petition for April 19, 2021. The trial was thereafter vacated
pursuant to a negotiated disposition; J.J. was released upon agreeing to
outpatient services, and the civil commitment petition may be dismissed if
J.J. makes good faith efforts to participate in those services. The delinquency
petition has again been dismissed.
Given that the delinquency petition has been dismissed, and J.J. is no
longer confined pursuant to section 709, subdivision (h)(5)(C) and the
February 9, 2021 order, J.J.’s challenge to that order is moot. We
nonetheless exercise our discretion to decide the petition on the merits.
(E.g., Last Frontier Healthcare Dist. v. Superior Court (2019) 33 Cal.App.5th
492, 495, fn. 3.) The issues raised by the petition present questions of first
impression and could arise in other cases. (People v. Armogeda (2015) 233
Cal.App.4th 428, 433 [“An appellate court has discretion to decide a moot
claim that presents questions of general public concern, ‘particularly in the
area of the supervision of the administration of criminal justice.’ ”].)
II. DISCUSSION
J.J. contends the continuation of his secure confinement pending
arrangement of post-release services, after the court had found that he had
not attained competence by the end of the 12-month statutory remediation
period, violated section 709 and his constitutional rights. We begin with a
closer look at section 709.
A. Section 709
If the juvenile court has a doubt that a minor who is subject to any
juvenile proceeding is competent—meaning the minor lacks sufficient present
ability to assist in his or her defense or lacks a rational and factual

8
understanding of the nature of the charges—the court must suspend the
juvenile proceedings. (§ 709, subd. (a)(1) & (2).)
Unless the parties stipulate that the minor lacks competency, the court
must appoint an expert to determine whether the minor suffers from a
mental illness, mental disorder, or other condition affecting competency and
whether the minor is incompetent. (§ 709, subd. (b)(1) & (2).)
An evidentiary hearing on the minor’s competency is then held as set
forth in section 709, subdivision (c). The minor is presumed competent
“unless it is proven by a preponderance of the evidence that the minor is
mentally incompetent.” (§ 709, subd. (c).)
If, at this initial competency hearing, the court finds that the minor is
competent, “the court shall reinstate [the juvenile] proceedings and proceed
commensurate with the court’s jurisdiction.” (§ 709, subd. (d).) If, on the
other hand, the court finds the minor incompetent, “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).) If the
petition alleges only misdemeanors, the petition is dismissed. (§ 709, subd.
(f).)
When the minor is found to be incompetent, the court must “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.” (§ 709, subd. (g)(1).) In addition, the court may “refer the minor to
treatment services to assist in remediation that may include, but are not
limited to, mental health services, treatment for trauma, medically
supervised medication, behavioral counseling, curriculum-based legal

9
education, or training in socialization skills, consistent with any laws
requiring consent.” (§ 709, subd. (g)(1).) “Services shall be provided in the
least restrictive environment consistent with public safety,” and a “finding of
incompetency alone shall not be the basis for secure confinement.” (§ 709,
subd. (g)(1).) The court must review remediation services at least every 30
days for minors in custody. (§ 709, subd. (g)(1).)
Section 709 provides for a second competency hearing (six-month
hearing). Subdivision (h)(1) of the statute provides: “Within six months of
the initial receipt of a recommendation by the designated person or entity,
the court shall hold an evidentiary hearing on whether the minor is
remediated or is able to be remediated.” (§ 709, subd. (h)(1).)
If, at the six-month hearing, the court finds the minor has been
remediated (competent), the court must reinstate the juvenile delinquency
proceedings. (§ 709, subd. (h)(2).) If the court finds that the minor has not
been remediated and is not likely to achieve competency within six more
months, the court must dismiss the petition and “may invite persons and
agencies with information about the minor . . . to the dismissal hearing to
discuss any services that may be available to the minor after jurisdiction is
terminated” or refer the minor for possible civil commitment under section
5300 et seq. or section 6550 et seq. (§ 709, subd. (h)(4).)
“If the court finds that the minor has not yet been remediated, but is
likely to be remediated within six months, the court shall order the minor to
return to the remediation program.” (§ 709, subd. (h)(3), italics added.) The
“total remediation period,” however, “shall not exceed one year from the
finding of incompetency.” (§ 709, subd. (h)(3), italics added.)
Section 709, subdivision (h)(3) also provides a cutoff for the “secure
confinement” of the juvenile, stating that it “shall not exceed the limit

10
specified in subparagraph (A) of paragraph (5).” Subparagraph (A) of
paragraph (h)(5) in turn provides that secure confinement “shall not extend
beyond six months from the finding of incompetence” unless “the court
determines . . . that it is in the best interests of the minor and the public’s
safety for the minor to remain in secure confinement” after considering where
the minor will have the best chance of obtaining competence, whether the
placement is the least restrictive for the minor, why alternatives to secure
confinement are not available or appropriate, and whether the placement is
necessary for the safety or the minor or others. (§ 709, subd. (h)(5)(A) & (B).)
The statute does not state how far “beyond six months from the finding of
incompetenc[y]” a juvenile can be held, except as set forth in section 709,
subdivision (h)(5)(C), which provides: “Only in cases where the petition
involves an offense listed in subdivision (b) of Section 707 may the court
consider whether it is necessary and in the best interests of the minor and
the public’s safety to order secure confinement of a minor for up to an
additional year, not to exceed 18 months from the finding of incompetence.”
(Italics added.) Section 707, subdivision (b) lists serious felonies including
murder, arson, robbery, and rape.5
Accordingly, on the face of section 709, the remediation period can be
extended to as many as 12 months after the initial finding of incompetency if
the juvenile is reasonably likely to be remediated (§ 709, subd. (h)(3)), while
707(b) juveniles can be securely confined for up to 18 months from the finding
of incompetency upon additional findings (§ 709, subd. (h)(5)(C)). If taken
literally, the statute would allow the court to order a juvenile to 18 months of

5 For brevity, we refer to juveniles who are alleged to have committed
offenses under section 707, subdivision (b) as “707(b) juveniles.” In addition,
all references hereafter to statutory subdivisions are to subdivisions of
section 709, unless otherwise indicated.
11
secure confinement, six months of which would be served beyond the
remediation period.
The juvenile court and the parties in this case have advocated varying
interpretations of this statutory language. The court—and the People at the
time of the hearing at issue in this appeal—took the statutory language at
face value, concluding that secure confinement is capped under subdivision
(h)(5)(C) at 18 months and the remediation period is capped under
subdivision (h)(3) at 12 months, and further concluding that the extra six
months of confinement time can be used to fashion exit orders and
post-release services. But J.J.—and the People on appeal—reject this
construction on the ground that the juvenile’s confinement for a
non-remediation purpose is inconsistent with other provisions in the statute
and gives rise to constitutional concerns. We discuss this matter post, as one
of the main issues in this appeal.
Before we get to that issue, however, we consider another aspect of the
statute. As mentioned, section 709 explicitly provides for an initial
competency hearing (subd. (c)) and a six-month competency hearing (subd.
(h)(1)). J.J. does not dispute the rulings at these hearings, challenging
instead the court’s February 2021 order issued after a third competency
hearing in December 2020. Section 709 does not explicitly provide for a third
competency hearing. As J.J. notes, however, 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. The People do not disagree.
We therefore assume that the December 2020 evidentiary hearing, roughly

12
12 months after the initial finding of incompetency, was consistent with
section 709.
B. Analysis
J.J. contends the order continuing his secure confinement beyond one
year from the initial finding of incompetence (and thus beyond the
remediation period) was erroneous for two reasons. First, once the court
determined in December 2020 that J.J. had not been remediated, as a matter
of law J.J. had to be released and the delinquency petition had to be
dismissed, so the court lacked authority to invoke subdivision (h)(5)(C) in
February 2021 to extend his secure confinement. Second, even if the court
retained authority to extend confinement under subdivision (h)(5(C), that
subdivision was not intended to extend a juvenile’s confinement beyond the
12-month remediation period for the purpose of crafting exit orders and
post-release services, but only to give the court time to finish its adjudication
of the minor’s competence. J.J. therefore urges his continued confinement
pursuant to section 709 was unlawful.
The People reject J.J.’s argument that the court lost authority to extend
his confinement under subdivision (h)(5)(C). The People agree, however, that
the court acted improperly, because while subdivision (h)(5)(C) authorized the
court to extend the confinement time to 18 months, it could do so
constitutionally only if the remediation period was also extended to 18
months. In fact, the People argue, despite the statutory language, the
12-month remediation period is implicitly extended to 18 months when
confinement is extended to 18 months, and the failure of the statute to say so
is merely a matter of legislative oversight. The People thus insist the
February 9, 2021 order could be made right if we were to direct the juvenile
court to order remediation services for J.J. during his confinement.

13
 We therefore tackle two issues: (1) whether the court was obligated to
dismiss the section 602 petition and release J.J. upon a finding that he had
not regained competency by the end of the 12-month rehabilitation period;
and (2) whether the period between the 12-month maximum rehabilitation
period and the 18-month maximum confinement period could be used to
confine him until the court found there were suitable post-release services.
1. Dismissal Upon J.J. Not Attaining Competence
Under subdivision (h)(4), if the juvenile court finds at the six-month
hearing that the minor “will not achieve competency within six [more]
months, the court shall dismiss the petition.” (§ 709, subd. (h)(4), italics
added.) The court may invite persons and agencies with information about
the minor to attend “the dismissal hearing” to discuss services for the minor
after jurisdiction is terminated and to refer the minor for evaluation under
other code sections if appropriate. (§ 709, subd. (h)(4).) However, there is no
provision in subdivision (h)(4) for continued remediation services, let alone
continued confinement, if the court finds that the minor’s competence will not
be restored within six months after the six-month hearing.
Here, while the court did not make such a finding at the six-month
hearing, it did find at the 12-month hearing that J.J. still had not attained
competence, explaining that J.J. had no ability to communicate with counsel,
understand decisions he had to make, make them, or assist in any
meaningful way in his defense. At that point, J.J. claims, it was incumbent
on the court to dismiss the proceedings and release him. (§ 709, subd. (h)(4).)
The People do not dispute that a dismissal and release would be
required upon a finding that J.J. would not likely be restored to competence.
But the People deny that such a finding was made here, because the court

14
“found only that petitioner had not regained competence, not that he was
unable to regain competence.”
Context, however, is everything. When the court found that J.J. had
“not attained competency” at the 12-month hearing, the 12-month statutory
remediation period was over. (§ 709, subd. (h)(3).) It is no surprise that the
court did not explicitly find that J.J. was unlikely to regain competence in the
future, since no such finding was required by the statute or requested by the
parties. The court did not lament the unavailability of further services for
competency restoration, but concerned itself with services to assist J.J.’s
release. Further, the parties do not point us to evidence that J.J. was likely
to attain competency. To the contrary, in requesting J.J.’s civil commitment,
the People represented to the court that he was “not likely to be restored to
competency in the foreseeable future.”
Since a juvenile court must dismiss a juvenile proceeding at the
six-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. Accordingly, the finding that J.J. had not attained
competence at the 12-month hearing required the court to dismiss the
delinquency petition, thus ending the court’s jurisdiction over J.J. and
compelling his release from confinement.6

6 We also note that J.J.’s failure to attain competency by the end of the
12-month remediation period might compel dismissal of the proceedings for
another reason. If competency is not attained within “the reasonable period
of time necessary to determine whether there is a substantial probability that
[the juvenile] will attain [competency] in the foreseeable future,” the
juvenile’s confinement must end for due process reasons (Jackson v. Indiana
(1972) 406 U.S. 715, 738) and the juvenile proceedings can no longer be
15
 We recognize that the People contend the 12-month statutory
remediation period is implicitly extended to 18 months for 707(b) juveniles if
certain findings are made under subdivision (h)(5)(C) to extend confinement
to 18 months. If the People’s construction of section 709 were correct, the
12-month remediation cutoff stated in the statute would not bar further
remediation services, and the court might not have to dismiss the proceedings
if it made the requisite findings. The People’s argument is unavailing here,
however. First, the argument was not made to the juvenile court. Second,
when the court determined that J.J. had not regained competency in
December 2020, the court had not made any findings under subdivision
(h)(5)(C) that would have extended the confinement period to 18 months.
Third, the court did not find in December 2020 that there was any likelihood
J.J. would be restored to competency so as to justify further remediation
services. No basis appeared for extending the remediation period.
Accordingly, upon finding that J.J. was not remediated at the
December 2020 hearing, the juvenile court was obligated to dismiss the

suspended (§ 709, subd. (e)), which would result in the dismissal of those
proceedings as well as the juvenile’s release. (See In re Davis (1973) 8 Cal.3d
798, 801 [“Unless such a showing of probable recovery is made within this
period, defendant must either be released or recommitted under alternative
commitment procedures.”].) If the Legislature in section 709 has permissibly
equated the period reasonably necessary to determine the probability of the
juvenile attaining competency (subd. (e)) with the 12-month remediation
period (subd. (h)), dismissal of J.J.’s delinquency case was required as a
matter of law. If the period is instead a separate consideration that depends
on the facts of each case, dismissal under subdivision (e) would require a
factual finding that the court here did not make. We need not resolve this
question to resolve the appeal.
16
petition and release J.J., and it had no authority to extend his confinement
under subdivision (h)(5)(C).7
2. No Confinement Without Purpose of Remediation
Even if the juvenile court was not compelled to release J.J. in December
2020 due to its finding that he had not attained competence, the court’s
extension of J.J.’s confinement under subdivision (h)(5)(C) would be
erroneous if subdivision (h)(5)(C) cannot be used to extend confinement solely
for the purpose of crafting exit orders and post-release services.
To resolve this question, we interpret subdivision (h)(5)(C) according to
fundamental rules of statutory construction. The “first task in construing a
statute is to ascertain the intent of the Legislature so as to effectuate the
purpose of the law.” (Dyna-Med, Inc. v. Fair Employment & Housing Com.
(1987) 43 Cal.3d 1379, 1386.) “In determining such intent, a court must look
first to the words of the statute themselves, giving to the language its usual,
ordinary import and according significance, if possible, to every word, phrase
and sentence in pursuance of the legislative purpose.” (Id. at pp. 1386–1387.)
If the statute’s language is ambiguous or susceptible of more than one
reasonable interpretation, the court may turn to extrinsic aids to assist in

7 Although not addressed by the parties, there is no indication that the
dismissal compelled by section 709 can be delayed for the purpose of ordering
post-release services while the minor remains confined. As mentioned, when
the court finds that the juvenile will not likely regain competence within six
months at the six-month hearing, it may invite informed persons and
agencies to the dismissal hearing to discuss services that may be available
after jurisdiction is terminated (§ 709, subd. (h)(4)), but this suggests a call
for readiness at the dismissal hearing to discuss possible services, not a
postponement of the dismissal to finalize those services while the juvenile
languishes in confinement. Similarly, subdivision (e) provides that, “[p]rior
to a dismissal, the court may make orders that it deems appropriate for
services,” but in context that refers to the court ordering remediation services
until it must dismiss the case.
17
interpretation. (In re. C.H. (2011) 53 Cal.4th 94, 100–101.) “Both the
legislative history of the statute and the wider historical circumstances of its
enactment may be considered” in this regard. (Dyna-Med, supra, 43 Cal.3d
at p. 1387.) Moreover, a “statute should be construed whenever possible so as
to preserve its constitutionality.” (Ibid.)
a. Language of Subdivision (h)(5)(C)
Subdivision (h)(5)(C) reads: “Only in cases where the petition involves
an offense listed in subdivision (b) of Section 707 may the court consider
whether it is necessary and in the best interests of the minor and the public’s
safety to order secure confinement of a minor for up to an additional year, not
to exceed 18 months from the finding of incompetence.” (Italics added.)8
The plain meaning of subdivision (h)(5)(C) is that the court can confine
707(b) juveniles up to 18 months from the initial finding of incompetence,
upon a finding that such confinement is necessary and in the best interests of
the minor and public safety. The subdivision is silent, however, as to the
purposes for any confinement after the 12-month remediation period.
Specifically, the subdivision does not state whether necessity and the “best
interests of the minor and the public’s safety” can justify continued
confinement solely to arrange post-release services, or whether the
confinement must be premised on a prospect of remediation.
By the terms of subdivision (h)(5), the “best interests of the minor and
public’s safety” must be evaluated in light of certain factors: where the minor
will have the best chance of obtaining competence, whether the placement is

8 The phrase, “up to an additional year,” means a year in addition to the
initial six months referenced in subdivision (h)(1). Arguably, the court can
order this extra year of confinement at the six-month hearing, as opposed to
ordering an additional six months confinement at the six-month hearing and
ordering the balance at a subsequent 12-month hearing. The parties do not
raise this issue, and we need not address it to resolve the appeal.
18
the least restrictive for the minor, why alternatives to secure confinement are
not available or appropriate, and whether the placement is necessary for the
safety of the minor or others. (§ 709, subd. (h)(5)(A).) These factors
acknowledge a concern with personal and public safety, but they also suggest
a tethering of extended confinement with remediation, as well as a sensitivity
to placing the minor in the least restrictive appropriate environment. The
factors do not state whether the best interests of the minor and public safety
can justify confinement of the minor solely to arrange post-release services.9
Other provisions of subdivision (h) do not answer the question either.
Subdivision (h)(4) allows the court, upon finding at the six month hearing
that a juvenile will not be remediated within six more months, to “invite
persons and agencies with information about the minor . . . to the dismissal
hearing to discuss any services that may be available to the minor after
jurisdiction is terminated.” (Italics added.) It also allows the court to “refer
the minor for evaluation” pursuant to section 5300 et seq. [e.g., confinement
for treatment for up to 180 days for certain persons who threatened,
attempted, or inflicted substantial physical harm] and section 6550 et seq.
[where juvenile court finds minor is described by section 300, 601, or 602 and
is in doubt concerning the person’s mental health]. (Italics added) But
neither subdivision (h)(4) nor any other provision states that the court can
confine the juvenile after the 12-month remediation period, under the
authority of subdivision (h)(5)(C), merely because the court awaits the
finalization of post-release services. To the contrary, such an interpretation

9 We note that the parties debated the level of J.J.’s dangerousness at
the juvenile court hearing. The People pointed primarily to the nature of his
alleged offenses. J.J. pointed to his generally good behavior at juvenile hall,
urging there was no documented indication of violence or sexually
inappropriate behavior. He had no prior criminal history.
19
would be at odds with the overall statutory purpose—as discussed next—
which reflects an intent to confine juveniles only to restore competency.
b. Statutory Purposes and Language as a Whole
Taking the statutory language as a whole, section 709 reveals two
overarching purposes. First, the statute protects a minor from juvenile
proceedings while the minor is incompetent within the meaning of the
statute—essentially, unable to contribute meaningful to his or her defense.
(§ 709, subd. (a)–(c), (e)–(f), (h)(4).) Second, during a period no longer than
reasonably necessary to decide whether this competency will be attained, the
statute provides services to the minor to help restore competency so that the
juvenile proceedings can recommence. (§ 709, subd. (d), (e), (g)(1), (h)(2)–(3);
see People v. Waterman (1986) 42 Cal.3d 565, 570 [“The goal of treatment for
incompetence . . . is to restore the mental ability to stand trial.”].)
The latter purpose—remediation in the hope of restoration to
competency—is pursued through the provision of therapy, treatment, and
other remediation services, delivered to the minor while the minor is either
confined or not. (§ 709, subd. (g)(1).) These remediation services, the statute
warns, should be “provided in the least restrictive environment consistent
with public safety.” (§ 709, subd. (g)(1); see also § 709, subd. (h)(5)(A)(ii)
[“least restrictive setting appropriate for the minor”].) “A finding of
incompetency alone shall not be the basis for secure confinement,” and the
court must “consider appropriate alternatives to juvenile hall confinement,”
including several set forth in the statute. (§ 709, subd. (g)(1).) If the minor
moves from in-custody status to out-of-custody status, the county must
provide alternatives for the continued delivery of remediation services.

20
(§ 709, subd. (g)(1).) Thus, subdivision (g) anticipates the possibility of
remediation without secure confinement, but it does not contemplate
confinement without remediation.
To be sure, section 709 mentions the “public’s safety,” but not to justify
confinement without remediation. While subdivision (g)(1) specifies that
“[s]ervices shall be provided in the least restrictive environment consistent
with public safety,” that statement is made in describing the court’s referral
of the minor to services “designed to help the minor attain competency” and
“services to assist in remediation.” Subdivision (h)(5) refers to extending
confinement to 18 months upon a finding that it is “necessary and in the best
interests of the minor and the public’s safety,” but that determination is
based not solely on protecting the public, but also on whether it will give the
minor the “best chance of obtaining competence” and whether less restrictive
alternatives have been ruled out (factors which the court here did not
explicitly evaluate). In short, section 709 aims to accommodate public safety
in determining the location of remediation services, but it does not purport to
justify confinement solely for the purpose of protecting the public without
remediation services for restoration of competency.
c. Constitutional Considerations
In interpreting subdivision (h)(5)(C), we must not only consider the
words of the subdivision and the language of the statute as a whole, but also
arrive at a construction that avoids serious constitutional doubts.
(Dyna-Med., Inc., supra, 43 Cal.3d at p. 1387.) The parties agree that
continuing a juvenile’s confinement under section 709 without remediation
services would, at a minimum, raise substantial due process questions.
In Jackson v. Indiana (1972) 406 U.S. 715 (Jackson), the United States
Supreme Court ruled: “[A] person charged by a State with a criminal offense

21
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. If it is determined that this is not the case, then the
State must either institute the customary civil commitment proceeding that
would be required to commit indefinitely any other citizen, or release the
defendant.” (Id. at p. 738.) “At the least, due process requires that the nature
and duration of commitment bear some reasonable relation to the purpose for
which the individual is committed.” (Ibid., italics added.) “[E]ven if it is
determined that the defendant probably soon will be able to stand trial, his
continued commitment must be justified by progress toward that goal.”
(Ibid.)
Our Supreme Court followed Jackson in In re Davis (1973) 8 Cal.3d
798, adopting the “rule of the Jackson case that no person charged with a
criminal offense and committed to a state hospital solely on account of his
incapacity to proceed to trial may be so confined more than a reasonable
period of time necessary to determine whether there is a substantial
likelihood that he will recover that capacity in the foreseeable future, and
that unless such a showing of probable recovery is made within such period,
he must either be released or recommitted under alternative commitment
procedures.” (Id. at p. 801.) Because the protections of Jackson and Davis
reflect essentials of due process, they apply to the detention of minors found
incompetent to stand trial. (In re Albert C. (2017) 3 Cal.5th 483, 490.)
Continuing the involuntary confinement of a juvenile under section
709, after it was determined that the juvenile had not regained competency
during the statutory remediation period, and without a finding that he would
be remediated during an extended confinement, could arguably constitute

22
holding the juvenile beyond the “reasonable period of time necessary to
determine whether there is a substantial probability that he will attain that
capacity in the foreseeable future.” (Jackson, supra, 406 U.S. at p. 738; see
id. at pp. 725–726; Davis, supra, 8 Cal.3d at p. 806 [“if petitioners are making
no reasonable progress toward that goal [restoring competency], they must be
released or held subject to alternative commitment procedures”].) And
keeping the juvenile confined solely for the purpose of arranging post-release
services is plainly contrary to the premise that commitment “must be
justified by progress toward [the] goal” of restoration to competency. (Id. at
p. 804.)
We must remember, of course, that a minor in J.J.’s position has not
been found guilty of any crime, the allegations against him have not been
substantiated, and, although deemed to be incompetent to stand trial, the
juvenile has not necessarily been found, after relevant mental health
examination, to be a danger to himself or others. (See Jackson, supra, 406
U.S. at pp. 737–738.) There is no basis for his confinement under section 709
except as a byproduct of efforts to restore his ability to aid in his defense
against the charges; without services to restore this competency, the legal
justification for his confinement under section 709 evaporates.
Because continued confinement of a juvenile beyond the remediation
period for a purpose other than restoration to competency would potentially
violate the juvenile’s due process rights, subdivision (h)(5)(C) cannot be found
to authorize such confinement.10

10 J.J. also contends a juvenile’s confinement under section 709 without
remediation services violates the Fourteenth Amendment right to equal
protection and the Eighth Amendment right against cruel and unusual
punishment. (Citing Jackson, supra, 406 U.S. at p. 730 [subjecting
individuals to a more lenient commitment standard and more stringent
23
 d. Legislative History
The first version of section 709, effective January 1, 2011, embraced the
constitutional mandate set forth in In re Davis: “If the minor is found to be
incompetent by a preponderance of the evidence, 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.” (Former § 709, subd. (c).) The statute did not specify a
duration for remediation services or secure confinement, or state how long is
“reasonably necessary” to decide where there was a substantial probability of
competency. (Ibid.; see In re Albert C., supra, 3 Cal.5th at p. 491.)
To address the concern that section 709 might be used to retain minors
too long in remediation, the statute was amended by Assembly Bill No. 1214
(2017–2018 Reg. Sess.), effective January 1, 2019 (AB 1214). AB 1214
provided the version of the statute we have today, except for technical
amendments irrelevant to the petition before us. (Stats. 2019, ch. 161, § 1.)
The author of AB 1214, California Assembly member Mark Stone,
summarized the need for the legislation as follows: “AB 1214 would establish
timelines and processes relating to the determination of competency in court
proceedings and the evaluation and delivery of remediation services. While
existing law establishes juvenile competency and sets forth guidelines for
these proceedings, there remain some operational ambiguities among
practitioners relative to the types of remediation services to be delivered, who

release standard than those applied to persons not charged with offenses
violated equal protection]; Robinson v. California (1962) 370 U.S. 660,
665–667 [involuntarily confining an individual due to mental illness
constitutes cruel and unusual punishment unless accompanied by adequate
treatment].)
24
is the appropriate entity to deliver them, and where a youth will receive
those services and for how long. This bill seeks to provide additional
guidance around these questions. [¶] The practical impact is that there are
times in which juveniles are remaining in the hall without clear timelines
governing the length of remediation services. It is important that not only do
these vulnerable kids receive appropriate services, but that they do so within
a reasonable time frame in order to get them out of the hall and in proper
placement and care going forward.” (Sen. Com. on Pub. Saf., Analysis of
Assem. Bill No. 1214 (2017–2018 Reg. Sess.) June 20, 2018, p. 7, italics
added.)
Put simply, the intent behind section 709 as it stands today, including
the 12-month remediation period added in subdivision (h)(3), was to set a
deadline by which remediation services would be completed so that juveniles
would not languish in “the [juvenile] hall.” (Sen. Com. on Pub. Saf., Analysis
of Assem. Bill No. 1214, supra, at p. 7.)
At the same time, it was recognized that section 709 would allow
confinement of 707(b) juveniles for up to 18 months, at least in part to protect
public safety. In support of AB 1214, the Chief Probation Officers of
California (CPOC) in June 2018 noted: “Although the prior legislation
represented a giant step forward, clear timelines and processes are necessary
to balance public safety with the treatment needs of the accused [¶] . . . [¶]
AB 1214 sets forth a [six] month minimum time in custody and one year for
the provision of remediation services.” (Sen. Com. on Pub. Saf., Analysis of
Assem. Bill No. 1214, supra, at p. 9.) CPOC also observed that “[r]esearch on
remediation services suggests majority of youth can be remediated prior [to] a
year if they are able to be remediated.” (Ibid.) “Although very rare, the bill
does recognize there may be circumstances which necessitate a custodial

25
setting and addresses this issue by allowing a petition to the court for a civil
commitment pursuant to WIC 5300 et seq., or WIC 6550 et seq. . . . Further,
in cases involving 707b petitions, a youth may remain in the hall up to 18
months upon the finding of incompetency. . . We believe these provisions
strike the balance between the safety of the youth and community and
ensures the youth do not remain in a custodial setting longer than they would
if they had been adjudicated. . . . [I]t is imperative we look to alternatives to
custody where appropriate and are providing remediation services in the
most suitable, least restrictive setting for the safety of the youth and the
community . . . .” (Sen. Com. on Pub. Saf., Analysis of Assem. Bill No. 1214,
supra, at p. 9., italics added.)11
The legislative history, therefore, confirms a desire to limit the
duration of remediation efforts so juveniles do not languish in confinement.
Like the language of the statute, it further discloses a willingness to confine
707(b) juveniles for up to 18 months for the best interests of the minor and

11 An earlier effort to amend section 709, Assembly Bill No. 935
(2017–2018 Reg. Sess.), had provided for a maximum of 12 months of
remediation services and six months of secure confinement for all minors, but
as to 707(b) juveniles allowed the court to “consider whether it is necessary
and in the best interest of the minor and the public’s safety to order secure
confinement of a minor for up to an additional six months, not to exceed one
year.” (Assem. Bill No. 935 (2017–2018 Reg. Sess., § 1 [proposed § 709, subd.
(h)(5)(A)]; italics added.) In other words, the bill proposed a maximum of 12
months confinement for 707(b) juveniles, matching the 12-month remediation
period. Governor Jerry Brown vetoed AB 935 in October 2017, however,
expressing concern “with the rare instances in which youth are accused of
very serious crimes” and “encourag[ing] further review as to how these
situations may be accounted for while preserving the author’s underlying
intent.” (Governor’s Veto Message, Assem. Bill No. 935 (Oct. 19, 2017).) The
Governor’s veto message was quoted by the Senate Committee on Public
Safety without elaboration in its analysis of AB 1214. (Sen. Com. on Pub.
Saf., Analysis of Assem. Bill No. 1214, supra, at p. 8.)
26
public safety, but there is no legislative statement that a juvenile court could
do what the court did here—continue confinement after the juvenile
remained incompetent at the 12-month mark, solely for the purpose of
arranging post-release services.
e. Conclusion
Based on the statutory language, statutory purposes, constitutional
case law, and legislative history, there is no indication that section 709 can be
used to confine a juvenile involuntarily, after he is determined to be
incompetent at the end of the 12-month remediation period, solely for the
purpose of delaying his release until post-release services (to which he
objected) have been arranged and approved. In this case, none of the
post-release services were purported to be for restoration of competency or
even ancillary to that purpose. The February 9, 2021 order was erroneous.
We realize the importance of protecting public safety and the laudatory
aim of assisting the juvenile in his or her return to the community, and we
recognize the juvenile court’s concerns in this regard. But we question the
idea that an additional six months of confinement is needed to devise
post-release services in order to protect the minor and the public. While the
district attorney and others may need time to arrange for post-release
services, in most instances the parties will suspect any need for such services
long before the 12-month hearing, given psychiatric competency reports and
monthly reviews of remediation services. And by all indications, post-release
services would be voluntary, leaving the efficacy of those services largely up
to the juvenile.
At any rate, a perceived need to shield the public from the juvenile and
to put in place post-release services is not sufficient in itself to justify
involuntary confinement of the juvenile under section 709. Other statutory

27
mechanisms are available and a far better fit. (E.g., § 5300 [180-day
confinement for further treatment of imminently dangerous persons, after
14-day certification]; § 6500 et seq. [commitment of person with
developmental disability who has been found incompetent to stand trial and
dangerous to others], § 6550 et seq. [applicable where minor has been found
to be described by sections 300, 601, or 602].) In fact, the issues we decide
here would have been obviated if the People had pursued a civil commitment
of J.J. under section 6500 earlier, such that his confinement after the
remediation period would have been pursuant to that statute rather than
subdivision (h)(5)(C).
Accordingly, we hold that a juvenile cannot be confined under
subdivision (h)(5)(C) beyond the statutory remediation period, where the
juvenile has not attained competence by the end of that remediation period,
there is no finding that he would attain competence in the foreseeable future,
and confinement is prolonged solely to find post-release services rather than
to restore the juvenile to competency.12

12 We need not consider further what the Legislature had in mind by
allowing up to 18 months of confinement for 707(b) juveniles. Accordingly,
we do not decide whether confinement of a 707(b) juvenile beyond the
12-month statutory remediation period under subdivision (h)(5)(C) would be
unconstitutional; whether (as the People urge) any constitutional infirmity
could be cured by the continued provision of remediation services and an
implied extension of the 12-month remediation period; whether (as J.J. urges)
continued confinement would be permissible only to finish adjudication of
competency; or whether confinement might continue pending completion of
remediation services where, for example, the remediation period had been
tolled or where the juvenile is found likely to regain competence during the
extended period. Subject to constitutional constraints, including that
confinement cannot exceed a period reasonably necessary to determine
whether the minor can attain competency in the foreseeable future, the
Legislature may allow the courts to continue confinement upon specified
findings as it pursues the goal of restoring the minor to competence.
28
 III. DISPOSITION
The juvenile court erred in its February 9, 2021 order. Because the
petition’s request for relief has become moot, however, the petition is denied.

29
 NEEDHAM, J.

We concur.

SIMONS, Acting P. J.

BURNS, J.

J.J. v. Superior Court / A162060
30
A162060 / J.J. v. Superior Court

Trial Court: Superior Court of Contra Costa

Trial Judge: Honorable Anita L. Santos

Counsel: Joni Spears, Deputy Public Defender, Robin Lipetzky, Public
Defender, and Brigitte Nicoletti, Post-Bar Fellow, for Petitioner.

No appearance for respondent.

Xavier Becerra, Attorney General, Matthew Rodriquez, Acting Attorney
General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M.
Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising
Deputy Attorney General, and Bridget Billeter, Deputy Attorney General.

31