In re S.S. ( 2023 )

Filed 3/30/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Tehama)
----
In re S.S., a Person Coming Under the Juvenile Court C097055
Law.
THE PEOPLE, (Super. Ct. No. 22JU-000046)
Plaintiff and Respondent,
v.
S.S.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tehama County, Matthew C.
McGlynn, Judge. Reversed and remanded for further proceedings.
Law Office of Theresa Stevenson, Theresa Osterman Stevenson, under
appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Ross K.
Naughton, Deputy Attorneys General, for Plaintiff and Respondent.
1
Minor S.S. (minor) appeals from an order transferring him from the juvenile court
to a court of criminal jurisdiction, pursuant to former Welfare and Institutions Code
1
section 707. (Stats. 2018, ch. 1012, § 1, amended by Stats. 2022, ch. 330, § 1.) Minor
contends: (1) the juvenile court’s findings were not supported by substantial evidence
and (2) subsequent legislation applies retroactively and requires reversal because the
juvenile court did not comply with new requirements for transfer hearings. The People
concede the second argument. We agree with the parties that the new law applies
retroactively and conclude we must reverse the transfer order and remand for an
amenability hearing in compliance with the new law. We, therefore, need not address
minor’s first contention.
BACKGROUND
A. Petition and Transfer Motion
The Tehama County District Attorney’s Office filed a petition alleging that minor,
age 17 at the time, committed murder (Pen. Code, § 187) and attempted murder (Pen.
Code, §§ 21a, 187) using a deadly or dangerous weapon (Pen. Code, § 12022, subd.
(b)(1)), bringing minor within the jurisdiction of the juvenile court (§§ 602, 650). The
petitioner then filed a motion to transfer minor from the juvenile court to a court of
criminal jurisdiction, pursuant to former section 707. The petitioner later amended the
petition to allege minor also committed two counts of assault with a deadly weapon (Pen.
Code, § 245, subd. (a)(1)) and two counts of exhibiting a deadly weapon (Pen. Code,
§ 417, subd. (a)(1)), and to allege minor inflicted great bodily injury upon the murder and
attempted murder victims (Pen. Code, § 12022.7, subd. (a)).
1 Undesignated statutory references are to the Welfare and Institutions Code.
2
B. Witness Reports of the Incident
In preparation for the hearing on the transfer motion, the probation officer filed a
report on minor’s behavioral patterns and social history. The report also summarized
reports from the Tehama County Sheriff’s Office regarding the incident that led to the
filing of the petition. Officers arrived at a house hosting a party and found two people
had been stabbed. Minor had attended the party with three friends. Minor drank alcohol
and was visibly drunk at the party, and he still smelled of alcohol when officers
confronted him at his house later that night. One of minor’s friends reported that a group
of boys was harassing a group of girls at the party, so he and minor spoke with the boys
to get them to stop. Other witnesses reported minor and his friend threatened to stab,
shoot, or kill people. One witness reported a large fight involving minor. Several
witnesses reported minor’s friend holding minor back from several physical
confrontations, which minor’s friend confirmed.
Though the details varied, many witnesses reported that, either during the large
disturbance or in two separate incidents, minor stabbed two people. One victim, E.B.,
reported minor began accosting his friend, and when E.B. stepped in between, minor
stabbed him twice in the back. The other victim, E.V., died of a single stab wound to the
abdomen. A witness reported minor had swung the knife at him but missed and hit E.V.
instead. That witness also reported minor had then stabbed E.V. a second time, which
was not consistent with the hospital’s treatment notes or other witness reports. When
police officers found minor at his home later that night, he had blood on his sweatshirt, he
refused to come out to speak with them for approximately 30 minutes, and he changed his
clothes before coming out.
The probation officer also interviewed minor. Minor stated he had been drinking
all day, the day of the party. He then drank beer at the party, was “pretty drunk,” and
only remembered “bits and pieces” of the night. Minor did not remember any physical
altercation at the party. Rather, he remembered five people waiting for him when he got
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home; they started a fight with minor and his friend because they were mad that one
member of the group’s sister was with minor. Minor believed he had not stabbed anyone
that night.
C. Psychological Evaluation
The probation office also filed an evaluation of minor by a court appointed clinical
psychologist, Dr. J. Reid McKellar. (§ 707, subd. (a)(2)). Dr. McKellar reported that,
earlier in his childhood, minor was physically abused by his stepfather and witnessed
extensive domestic violence against his mother. Based on interviews with minor and his
mother, consultation with the probation officer, and various documentary sources, Dr.
McKellar diagnosed minor with generalized anxiety disorder, trauma and stressor related
disorder, alcohol use disorder, and cannabis use disorder. Due to these disorders and
underdeveloped coping skills, minor “may be prone to externalizing his fears and sense
of alienation in an impulsive manner” and is “likely prone to impulsive and destructive
behaviors, particularly when under the influence of a substance or alcohol.” Minor’s
“capacity to make sound decisions is further undermined by unresolved trauma concerns,
which are most evident in [minor]’s symptoms of anxiety and sleep disturbance.” Dr.
McKellar explained that minor would benefit from: (1) moral recognition training or
empathy training; (2) trauma-focused cognitive behavioral therapy, including cognitive
techniques to help reduce symptoms of anxiety and depression; (3) 12-step facilitative
drug abuse therapy; (4) assertiveness training; and (5) vocational assessment and
coaching.
The probation report noted minor had been referred to Tehama County Child
Protective Services six times for general neglect and physical abuse. The report also
detailed minor’s prior angry, insulting, and disobedient behavior in school and minor’s
history of substance abuse, starting at age 13.
4
D. Transfer Hearing and Ruling
At the hearing on the petitioner’s motion to transfer minor to a court of criminal
jurisdiction, the only evidence introduced in addition to the probation report and the
psychological evaluation was an autopsy report introduced by the petitioner. The parties
addressed the five criteria that section 707, subdivision (a)(3) requires the juvenile court
to consider. After taking a recess to review the documents in light of the parties’
arguments, the juvenile court first noted the petitioner had the burden of proving by a
preponderance of the evidence that the case should be transferred. (See Cal. Rules of
Court, rule 5.770(a).)2 The juvenile court then analyzed the evidence with respect to
each of the five criteria. We detail the juvenile court’s analysis in our discussion below.
After analyzing each of the five criteria, the juvenile court concluded minor was
“not fit to be treated within the jurisdiction of the juvenile court” and ordered minor
transferred to a court of criminal jurisdiction. Minor timely appealed from the transfer
order.
DISCUSSION
A. Amendments to Section 707
At the time of minor’s transfer hearing, the governing law and the corresponding
Rule of Court required the petitioner to establish by a preponderance of the evidence that
“the minor should be transferred to a court of criminal jurisdiction.” (Former § 707,
subd. (a)(3), as amended by Stats. 2018, ch. 1012, § 1; rule 5.770(a).)3 Effective
January 1, 2023, the Legislature amended section 707, adding the following language:
“In order to find that the minor should be transferred to a court of criminal jurisdiction,
the court shall find by clear and convincing evidence that the minor is not amenable to
2 Undesignated rule references are to the California Rules of Court.
3 As of the filing of this opinion, the Judicial Council has not revised rule 5.770(a)
to conform to the amended section 707.
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rehabilitation while under the jurisdiction of the juvenile court.” (§ 707, subd. (a)(3), as
amended by Stats. 2022, ch. 330, § 1, (Assembly Bill No. 2361).) This changed the
finding a juvenile court must make before ordering a transfer in two ways: (1) raising the
standard of proof and (2) requiring a new specific finding regarding amenability to
rehabilitation.
To determine the scope and effect of these changes, we examine the text “to
determine the Legislature’s intent so as to effectuate the law’s purpose.” (People v.
Lewis (2021) 11 Cal.5th 952, 961.) “We consider the ordinary meaning of the relevant
terms, related provisions, terms used in other parts of the statute, and the structure of the
statutory scheme.” (McHugh v. Protective Life Ins. Co. (2021) 12 Cal.5th 213, 227.)
“[T]he Legislature ‘is deemed to be aware of existing laws and judicial constructions in
effect at the time legislation is enacted.’ ” (People v. Frahs (2020) 9 Cal.5th 618, 634.)
And, “when the Legislature amends a statute, we presume it was fully aware of the prior
judicial construction.” (White v. Ultramar (1999) 21 Cal.4th 563, 572.)
1. Legal Background
In its analysis of these amendments, the Legislature explained that the changes
were intended to address recent developments in law and new scientific research
regarding juveniles:
“Over the last several years, there have been a series of U.S. Supreme Court cases
involving juvenile defendants that have recognized the inherent difference between
juveniles and adults for purposes of sentencing, relying in part on research on brain and
adolescent development. (See Roper v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1138,
161 L.Ed. 2d]; Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct. 2011, 176 L.Ed. 825];
J.D.B. v. North Carolina (2011) 564 U.S. 261 [131 S. Ct. 2394, 180 L.Ed. 310 ]; Miller v.
Alabama (2012) 567 U.S. 460 [132 S.Ct. 2455, 183 L.Ed. 2d 407].) The Court
summarized those differences in Miller:
6
“ ‘Roper and Graham establish that children are constitutionally different from
adults for purposes of sentencing. Because juveniles have diminished culpability and
greater prospects for reform, we explained, ‘they are less deserving of the most severe
punishments.’ Graham, 560 U.S., at [p.] 68, 130 S.Ct. 2011, 176 L.Ed. 2d 825. Those
cases relied on three significant gaps between juveniles and adults. First, children have a
‘ “lack of maturity and an underdeveloped sense of responsibility,” ’ leading to
recklessness, impulsivity, and heedless risk-taking. Roper, 543 U.S., at [p.] 569,
125 S.Ct. 1183, 161 L.Ed. 2d 1. Second, children ‘are more vulnerable . . . to negative
influences and outside pressures,’ including from their family and peers; they have
limited ‘contro[l] over their own environment’ and lack the ability to extricate themselves
from horrific, crime-producing settings. Ibid. And third, a child’s character is not as
‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less likely to be
‘evidence of irretrievabl[e] deprav[ity].’ (567 U.S. 460, 570 [125 S.Ct. 1183, 161 L. Ed.
2d 1].)’
“This body of case law and the research relied upon in these cases prompted the
passage of several juvenile justice reform measures in the state in the past decade. In
addition, the voters passed Proposition 57 in 2016, which among other things, eliminated
the ability of a prosecutor to file charges against a juvenile offender directly in criminal
court. (See, Voter Information Guide for 2016
.)” (Sen. Rules Com.,
Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2361 (2021-2022
Reg. Sess.) Aug. 3, 2022, pp. 4-5; accord Assem. Com. on Public Safety, Analysis of
Assem. Bill No. 2361 (2021-2022 Reg. Sess.) as amended Mar. 31, 2022, pp. 4-5.)
Continuing this trend, the bill’s author explained that the amendments to section
707 “ ‘will reduce arbitrary determinations surrounding the transfer of juveniles to adult
court by establishing that the court’s decision to transfer a juvenile must be based on
sufficient evidence. Rehabilitation is the way forward, and that includes giving juveniles
7
who have made a mistake the opportunity to create a new future as they prepare to reenter
our society as adults.’ ” (Assem. Off. of Chief Clerk, 3d reading analysis of Assem. Bill
No. 2361 (2021-2022 Reg. Sess.) as amended Mar. 31, 2022, p. 1.)
2. Clear and Convincing Evidence
Assembly Bill No. 2361’s purpose was in part achieved by raising the standard of
proof to “clear and convincing evidence.” (§ 707, subd. (a)(3).) “The standard of proof
known as clear and convincing evidence demands a degree of certainty greater than that
involved with the preponderance standard, but less than what is required by the standard
of proof beyond a reasonable doubt.” (Conservatorship of O.B. (2020) 9 Cal.5th 989,
998; see also Evid. Code, § 115.) “ ‘Clear and convincing’ evidence requires a finding of
high probability.” (In re Angelia P. (1981) 28 Cal.3d 908, 919, superseded by statute on
another issue as stated in In re Cody W. (1994) 31 Cal.App.4th 221, 229-230; accord
Judicial Council of California Civil Jury Instructions (2023) CACI No. 201.) Courts
have also described the standard “as requiring that the evidence be ‘ “so clear as to leave
no substantial doubt”; “sufficiently strong to command the unhesitating assent of every
reasonable mind.” ’ ” (In re Angelia P., at p. 919.)
3. Amenability to Rehabilitation
Assembly Bill No. 2361 also requires juvenile courts to find “the minor is not
amenable to rehabilitation while under the jurisdiction of the juvenile court.” (§ 707,
subd. (a)(3).) This language resembles earlier versions of section 707, which, from the
enactment of the Juvenile Court Law in 1961 until the approval of Proposition 57, the
Public Safety and Rehabilitation Act of 2016, required juvenile courts to analyze whether
minors are “amenable to the care, treatment, and training program available through the
facilities of the juvenile court.” (Compare Stats. 1961, ch. 1616, § 2, p. 3485 and Stats.
2015, ch. 234, § 2 with Ballot Pamp., Gen. Elec. (Nov. 8, 2016) text of Prop. 57, p. 142.)
Given the Legislature’s refocusing on minors’ amenability to rehabilitation, expert
testimony will likely be necessary for a complete analysis. Our Supreme Court has
8
offered substantial guidance for this analysis that applies to the new language as well as
the old: “Though the standards for determining a minor’s fitness for treatment as a
juvenile lack explicit definition [citations], it is clear from the statute that the court must
go beyond the circumstances surrounding the offense itself and the minor’s possible
denial of involvement in such offense. . . . [¶]. . . Since the dispositive question is the
minor’s amenability to treatment through the facilities available to the juvenile court,
testimony of experts that the minor can be treated by those facilities is entitled to great
weight in the court’s ultimate determination. Moreover, if the court otherwise decided
that the [juvenile court] program was best suited to the needs of the minor, it could hold
him unfit if those experts testified that rehabilitation might require treatment beyond the
date of his mandatory discharge.” (Jimmy H. v. Superior Court (1970) 3 Cal.3d 709,
714-715.)
The renewed focus on rehabilitation also means courts must take care not to place
too much weight on the probation officer’s “report on the behavioral patterns and social
history of the minor.” (§ 707, subd. (a)(1).) Even after the approval of Proposition 57,
when juvenile courts only considered “[w]hether the minor can be rehabilitated prior to
the expiration of the juvenile court’s jurisdiction,” (§ 707, former subd. (a)(2)(B)(i)), as
one of five criteria for determining whether to transfer a minor to criminal court, courts
cautioned against accepting probation officer’s conclusions regarding minors’ prospects
for rehabilitation. For example, in J.N. v. Superior Court (2018) 23 Cal.App.5th 706, the
appellate court held the juvenile court’s finding that minor was unsuitable for treatment
as a juvenile because he only had three years left before he aged out of the juvenile
court’s jurisdiction was not supported by substantial evidence because the finding was
based solely on the probation officer’s unsupported conclusion:
“Here, the prosecution did not present any expert testimony concerning the
programs available, the duration of any of the programs, or whether attendance would
rehabilitate J.N. before termination of the juvenile court’s jurisdiction. There was no
9
evidence that demonstrated existing programs were unlikely to result in J.N.’s
rehabilitation, why they were unlikely to work in this case, or that they would take more
than three years to accomplish the task of rehabilitating J.N.
“Even if we were to accept the probation officer’s conclusion in the suitability
report as an expert opinion, and we do not, the conclusion under this factor was not
supported by the evidence. ‘If we could accept plaintiff’s expert witnesses’ testimony at
face value, this testimony would itself support the trial court’s findings. However, we
may not do so. “ ‘The chief value of an expert’s testimony in this field, as in all other
fields, rests upon the material from which his opinion is fashioned and the reasoning by
which he progresses from his material to his conclusion; . . . it does not lie in his mere
expression of conclusion.’ ” [Citation.] “Where an expert bases his conclusion upon
assumptions which are not supported by the record, upon matters which are not
reasonably relied upon by other experts, or upon factors which are speculative, remote or
conjectural, then his conclusion has no evidentiary value. [Citations.] In those
circumstances the expert’s opinion cannot rise to the dignity of substantial
evidence. [Citation.] When a trial court has accepted an expert’s ultimate conclusion
without critical consideration of his reasoning, and it appears the conclusion was based
upon improper or unwarranted matters, then the judgment must be reversed for lack of
substantial evidence.” [Citation.] “If [the expert’s] opinion is not based upon facts
otherwise proved, or assumes facts contrary to the only proof, it cannot rise to the dignity
of substantial evidence.” [Citations.]’
“The probation officer’s opinion in his report was not substantial evidence because
the opinion lacked support by substantial evidence. [Citation.] There was no evidence as
to the efforts necessary to rehabilitate J.N. and no evidence as to why available programs
were unlikely to result in rehabilitation in the time allotted. This lack of evidence
rendered any opinion based on the report without evidentiary value. Therefore, the
prosecution failed to establish by a preponderance of evidence J.N. was unsuitable for
10
treatment in the juvenile court. The court’s finding J.N. was unsuitable was not
supported by substantial evidence and was, therefore, an abuse of discretion.” (J.N. v.
Superior Court, supra, 23 Cal.App.5th at p. 722.)
Taken together, the changes to section 707 refocus juvenile courts on minors’
amenability to rehabilitation. Under prior versions of the statute, courts determined
whether minors were “fit and proper subject[s] to be dealt with under the juvenile court
law” and considered “rehabilitation” and “amenability to care, treatment, and training” as
part of the analysis. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 548-549; see
also § 707, former subd. (a)(1), as amended by Stats. 2007, ch. 137, § 1.) After
Proposition 57 removed the language regarding both fitness and amenability, some courts
that had referred to section 707 hearings as “fitness hearings” began referring to “transfer
hearings.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 306, fn. 4; see also
Ballot Pamp., Gen. Elec. (Nov. 8, 2016) text of Prop. 57, pp. 142-145.) Now that section
707 makes “amenab[ility] to rehabilitation” the ultimate determination, juvenile courts
would be better served referring to “amenability hearings.” The analysis of the five
criteria set forth in the statute should be focused through the lens of amenability to
rehabilitation.
B. Retroactivity
As an initial matter, we agree with the parties that the amended version of section
707 applies retroactively to this case. As the parties note, the recent amendments have
similar ameliorative effects to amendments made to section 707 by Proposition 57, which
prohibited prosecutors from charging juveniles with crimes directly in a court of criminal
jurisdiction and gave the prosecution the burden of proof at transfer hearings. (§ 707,
former subd. (a)(1), as amended by Prop. 57 (Nov. 9, 2016) § 4.2; Evid. Code, § 500; see
People v. Superior Court (Lara), supra,4 Cal.5th at p. 303.) Our Supreme Court held
those amendments applied retroactively because they effectively reduced the possible
punishment for juveniles: “[t]he possibility of being treated as a juvenile in juvenile
11
court — where rehabilitation is the goal — rather than being tried and sentenced as an
adult can result in dramatically different and more lenient treatment.” (Lara, at p. 303;
see In re Estrada (1965) 63 Cal.2d 740; People v. Francis (1969) 71 Cal.2d 66.) The
latest amendments likewise make it more difficult to transfer juveniles from juvenile
court, which similarly reduces the possible punishment for juveniles. Accordingly, we
conclude the current version of section 707 applies retroactively to minor’s case, which is
not yet final. (See People v. McKenzie (2020) 9 Cal.5th 40, 45 [presumption of
retroactivity “ ‘ “applies to any such proceeding which, at the time of the supervening
legislation, has not yet reached final disposition in the highest court authorized to review
it” ’ ”].)
C. Analysis
We also agree with the parties that, applying the amendments to section 707
retroactively, the juvenile court erred in ordering minor’s transfer. The juvenile court
expressly applied the former preponderance of the evidence standard and directed its
analysis to whether minor was “fit for juvenile court,” not whether minor is “amenable to
rehabilitation while under the jurisdiction of the juvenile court.” Though it applied the
law in effect at the time, the juvenile court violated the retroactively-applied current
version of section 707.
Given these errors, we must determine whether a “miscarriage of justice” has
resulted. (Cal. Const., art. VI, § 13.) Because the juvenile court erred in applying state
law, we will find a miscarriage of justice occurred only if “ ‘after an examination of the
entire cause, including the evidence,’ [we are] of the ‘opinion’ 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; People v.
Gonzalez (2018) 5 Cal.5th 186, 195-196.)
The parties, by urging remand for a new transfer hearing, implicitly agree a more
favorable result for minor is reasonably probable. Taking into account the heightened
12
standard of proof and viewing the juvenile court’s analysis of the five section 707 criteria
through the lens of amenability to rehabilitation, we conclude it is reasonably probable
the juvenile court would not order minor’s transfer under the current version of section
707.
1. Degree of Criminal Sophistication
For the “degree of criminal sophistication exhibited by the minor” (§ 707, subd.
(a)(3)(A)(i)), the juvenile court found minor had no intellectual or other impairment that
limited his ability to know the difference between right and wrong. The court found
minor had not acted impetuously, contrary to the psychological report’s conclusion that
minor would act impulsively and violently when feeling anxious or frustrated, especially
when under the influence of alcohol. The court disregarded testimony minor had
confronted a group of boys who had been harassing a group of girls, and found that minor
had not been provoked and was not under any peer pressure. The court also found
minor’s childhood trauma would not contribute to the crimes he committed, contrary to
the psychological report’s conclusion that minor’s capacity to make sound decisions was
undermined by unresolved trauma from the physical abuse he suffered and witnessed as a
child. The court concluded that, because minor had a knife, threatened to kill with that
knife, and, in fact, killed with that knife, his degree of criminal sophistication was so
significant that he was not “a fit and proper subject to benefit with the — to remain
within the jurisdiction of the juvenile court.”
The juvenile court’s analysis does little to explain the “criminal sophistication” of
drunkenly fighting at a party with a knife, which suggests the higher standard of proof
may change the juvenile court’s analysis. (See Kevin P. v. Superior Court (2020)
57 Cal.App.5th 173, 193 [“the mere fact that a minor is of normal intelligence. . . [or
minor’s] knowledge that his actions were wrong and his ability ‘to appreciate risks and
consequences of criminal behavior’ [citation] . . . do not in and of themselves
demonstrate criminal sophistication”].) More importantly, this analysis is not directed to
13
the ultimate question of whether minor is amenable to rehabilitation. Rather, the court
rejected the only pieces of evidence relevant to minor’s amenability to rehabilitation, the
psychologist’s uncontested conclusions that minor’s mental health diagnoses likely led
minor to act impulsively and violently, rather than in a sophisticated manner, and that
minor’s conditions were treatable. Giving this evidence the greater weight accorded in
the new statute suggests a reasonable probability the juvenile court would not order
minor’s transfer.4
2. Rehabilitation Prior to Expiration of Juvenile Court Jurisdiction
Next, considering “[w]hether the minor can be rehabilitated prior to the expiration
of the juvenile court’s jurisdiction” (§ 707, subd. (a)(3)(B)(i)), the juvenile court found
that in the four and a half months since the incident, minor had turned 18 years of age and
had shown no remorse for his actions, which meant there was not enough time for the
juvenile court to rehabilitate him. The court did not address how long the juvenile court
could maintain jurisdiction over minor or discuss the psychological report’s findings that
minor would benefit from a number of common counseling and treatment programs. The
court also found minor denied being involved in any altercations the night of the party,
contrary to minor’s statement to the probation officer that he had been attacked by a
group of boys from the party at his house that night. The court also faulted minor for
refusing to accept responsibility despite his bloodstained clothes, for his affect in the
interview with the probation officer, and for failing to engage in offered treatment at
juvenile hall. Accordingly, the court found this criterion also indicated minor was not “fit
for the juvenile court.”
4 Our analysis of the evidence now in the record does not limit what the parties may
offer into evidence on remand. (§ 707, subd. (a)(3) [petitioner and minor may submit any
relevant evidence].)
14
Given the amended statute’s greater emphasis on rehabilitation, the juvenile court
and the prosecution placed undue weight on the fact that minor had just turned 18 years
of age. The juvenile court could retain jurisdiction over minor until at least age 25, given
the severity of the charges against him. (§§ 607, subd. (c), 707, subd. (b)(1); Pen. Code,
§ 190; see also § 1800; O.G. v. Superior Court (2021) 11 Cal.5th 82, 93 [§ 1800, subd.
(a) “permits the prosecutor to petition for an extension of juvenile court jurisdiction, even
past the age of 25, if discharging a juvenile offender ‘would be physically dangerous to
the public because of the person’s mental or physical deficiency, disorder, or abnormality
that causes the person to have serious difficulty controlling his or her dangerous
behavior’ ”].)
In addition, proper analysis of this criterion generally requires “expert testimony
concerning the programs available, the duration of any of the programs, or whether
attendance would rehabilitate [the minor] before termination of the juvenile court’s
jurisdiction.” (J.N. v. Superior Court, supra, 23 Cal.App.5th at p. 722.) The prosecution
here presented no evidence to demonstrate what minor’s rehabilitative needs were, much
less why they could not be met within the juvenile court’s jurisdiction. The juvenile
court nevertheless finding it lacked sufficient time to rehabilitate minor was an abuse of
discretion even prior to the recent amendments. (Kevin P. v. Superior Court, supra,57 Cal.App.5th at p. 200; accord J.N., at pp. 721-722.) Accordingly, we conclude the
analysis of this criterion also suggests a reasonable probability the juvenile court would
not order minor’s transfer under the new version of section 707.
3. Previous History in the Juvenile Justice System
Considering “minor’s previous delinquent history” (§ 707, subd. (a)(3)(C)(i)), the
juvenile court noted minor’s only other involvement with the juvenile court: less than
two weeks prior to the incident at the party, minor had been arrested for brandishing a
firearm during an altercation at a party. The Butte County District Attorney’s Office had
declined to file a petition in that matter and the juvenile court had placed minor on
15
informal probation. The court added that minor had yelled something indicating a gang
affiliation but did not explain how this connected to minor’s previous history, given the
only evidence of this was from a witness to the current offenses, not the prior offense.
The court found the prior incident also was not caused by childhood trauma, again
contradicting the psychological report. Rather, the court found the prior incident
demonstrated minor wanted to be a “criminal” and a “thug” and “he continued that
conduct on the night of the party, resulting in the victimization of several individuals and
the death of a child.” The court concluded this criterion was “significant,” implying it
supported minor’s transfer.
In similar cases, courts analyzing this factor have found that more significant prior
contacts with the juvenile justice system than minors weighed against transfer to a court
of criminal jurisdiction. In C.S. v. Superior Court, the petition alleged the minor had
committed “ ‘the unprovoked murder of an unarmed innocent child.’ ” (C.S. v. Superior
Court, (2018) 29 Cal.App.5th 1009, 1033.) But the minor “ ‘had very few offenses in
comparison with other youth of his age in similar circumstances,’ ” so the court upheld
the juvenile court’s finding that this criterion weighed against transfer to criminal court.
(Id. at p. 1032.) In J.N. v. Superior Court, the petition likewise alleged murder, and the
court upheld the juvenile court’s finding that the minor’s two prior petitions alleging
fighting in public and truancy weighed against transfer to criminal court. (J.N. v.
Superior Court, supra, 23 Cal.App.5th at pp. 711-712, 719-720.)
While the affirmance of these court’s findings does not necessarily mean the
juvenile court abused its discretion in this case, it does indicate that this is a close issue.
Section 707’s new focus on amenability to rehabilitation shifts the court’s inquiry to
whether minor’s one prior incident makes him not amenable to rehabilitation. Given this
shift in focus, we conclude this criterion also suggests a reasonable probability the
juvenile court would not order minor’s transfer.
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4. Previous Rehabilitation Attempts
The juvenile court then considered the “[s]uccess of previous attempts by the
juvenile court to rehabilitate the minor.” (§ 707, subd. (a)(3)(D)(i).) The court gave little
weight to this criterion because minor had been “on informal probation for less than two
weeks, which is not sufficient treatment to indicate that he was successful or not.”
Nevertheless, the court disagreed with the probation report’s assessment that minor
would be “fit to be treated within the juvenile court” because minor’s subsequent violent
conduct after being on informal probation indicated “failure of any type of treatment he
received.” The court did not indicate whether minor received any treatment while on
informal probation.
The parties did not introduce evidence of any attempts to rehabilitate minor during
the less than two-week period between his first interaction with a juvenile court and the
offense at issue. The juvenile court did not give this criterion great weight, but, in the
absence of any evidence that previous rehabilitation attempts make minor not amenable
to rehabilitation, there is a reasonable probability the juvenile court would find this
criterion supports treating minor as a juvenile under the current statute.
5. Circumstances and Gravity of Alleged Offense
Lastly, the juvenile court addressed “the gravity of the offense.” (§ 707, subd.
(a)(3)(E)(i).) The court found minor “was the sole perpetrator,” threatened several
victims, stabbed several victims, and killed one victim. The court explained: “there is no
greater harm than murder, and that’s exacerbated by the fact that [minor] murdered a 14-
year-old child who was not engaged in doing anything other than trying to save another
victim.” The court also indicated it believed minor had been seeking out an original
victim, though the probation report indicates minor was looking for one of the friends he
attended the party and returned home with.
Though the gravity of the alleged offense is necessarily undisputed, the juvenile
court also relied on its own unique interpretation of facts contrary to the probation report
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in analyzing this criterion. Under the heightened standard of proof, the probation report’s
conflicting interpretation of minor’s attempts to locate a specific individual at the party
may change the juvenile court’s analysis to some extent. We conclude the juvenile
court’s analysis of this criterion does not affect the probability the court would change its
decision to transfer minor under the current version of section 707.
6. Conclusion
Because the amendments to section 707 significantly change how the juvenile
court must analyze the evidence to determine whether to transfer minor to a court of
criminal jurisdiction, we conclude there is a reasonable probability the court would not
have transferred minor had it applied the current law. Accordingly, we will reverse the
juvenile court’s transfer order and remand for further proceedings consistent with current
law.
The amended version of section 707 requires the juvenile court to consider each of
the five statutory criteria and how those criteria affect minor’s amenability to
rehabilitation while under the jurisdiction of the juvenile court. (§ 707, subd. (a)(3).)
This is not a simple task for the court or for the parties, who must introduce evidence
relevant to this complicated determination, likely including expert testimony. This
difficulty reflects the Legislature’s caution: “The transfer of a juvenile to adult court is
an extremely serious decision with a lifetime of consequences, and one which should not
be taken lightly.” (Assem. Off. of Chief Clerk, 3d reading analysis of Assem. Bill
No. 2361 (2021-2022 Reg. Sess.) as amended Mar. 31, 2022, p. 1.) After the amenability
hearing, the juvenile court must “recite the basis for its decision in an order entered upon
the minutes, which shall include the reasons supporting the court’s finding.” (§ 707,
subd. (a)(3).) This means the court should “explicitly ‘articulate its evaluative process’
by detailing ‘how it weighed the evidence’ and by ‘identify[ing] the specific facts which
persuaded the court’ to reach its decision” whether to transfer minor to a court of criminal
jurisdiction. (C.S. v. Superior Court, supra, 29 Cal.App.5th at pp. 1034-1035.) The
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court’s explanation, like its analysis, should focus on minor’s amenability to
rehabilitation.
DISPOSITION
The juvenile court’s order transferring minor to a court of criminal jurisdiction is
reversed, and the matter is remanded to the trial court to conduct an amenability hearing
pursuant to current law and for further proceedings as may be just under the
circumstances.
\s\ ,
McADAM, J.*
We concur:
\s\ ,
DUARTE, Acting P. J.
\s\ ,
BOULWARE EURIE, J.
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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