Proposition 57 and Charging Minors as Adults – A Paradigm Shift

         Changes Created by Prop. 57 in Charging Minors as Adults

   Proposition 57 was the second major change to juvenile transfer hearings within a year that evidences a new rehabilitative focus in which the transfer criteria are viewed in light of the minor’s maturity, intellectual capacity, physical, mental, and emotional health at the time of the alleged offense, and his ability to appreciate risks and consequences of criminal behavior, along with other environmental factors.  The first was S.B. 382 which became effective on January 1, 2016.

For decades Welfare and Institutions Code section 707 had set forth five criteria a court was to use to determine whether a minor charged with a crime should answer to the charge in juvenile court or adult criminal court:

(1) “The degree of criminal sophistication exhibited by the minor,” (2) “Whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction,” (3) “The minor’s previous delinquent history,” (4) “Success of previous attempts by the juvenile court to rehabilitate the minor,” and (5) “The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.”

But S.B. 382 added factors that had to be considered under each of the traditional five criteria.  (See Stats. 2015, ch. 234, § 2.)  For example, the following are the factors to be considered under criteria (1) “The degree of criminal sophistication exhibited by the minor”:

When evaluating the criterion specified in clause (i), the juvenile court may give weight to any relevant factor, including, but not limited to, the minor’s age, maturity, intellectual capacity, and physical, mental, and emotional health at the time of the alleged offense, the minor’s impetuosity or failure to appreciate risks and consequences of criminal behavior, the effect of familial, adult, or peer pressure on the minor’s actions, and the effect of the minor’s family and community environment and childhood trauma on the minor’s criminal sophistication.

(Cal. Welf. & Inst. Code, § 707(a)(2)(ii).)

“SB 382 was intended to clarify the factors for the juvenile court to consider when determining whether a case should be transferred to criminal court by emphasizing the unique developmental characteristics of children and their prior interactions with the juvenile justice system.”  (Advisory Com. com., foll. Cal. Rules of Court, Rule 5.770.)

S.B. 382 was followed eleven months later by Proposition 57, which extended S.B. 382’s focus on rehabilitation.  “That is, the intent of the electorate in approving Proposition 57 was to broaden the number of minors who could potentially stay within the juvenile justice system, with its primary emphasis on rehabilitation rather than punishment.”  (People v. Vela (2017) 11 Cal.App.5th 68, 76, review granted July 12, 2017, S242298.)

Prop. 57 has given us the present version of Welfare and Institutions Code section 707, which radically changes the procedure to transfer minors into adult criminal court.  First, Prop. 57 eliminated “direct filing.”  It did so by deleting former subdivision (d) of section 707.  Former subdivision (d) allowed the prosecution to bypass a fitness hearing by directly filing an accusatory pleading in adult criminal court against any minor 16 years of age or older who was accused of committing one of the serious crimes listed in section 707 subdivision (b).  And former subdivision (d) allowed the prosecution to bypass a fitness hearing by directly filing an accusatory pleading in adult criminal court against any minor 14 years of age or older under certain specified statutory criteria.  But under Prop. 57:

The charging instrument for all juveniles must now be filed in juvenile court.  Prosecutors may still move the court to transfer certain categories of cases to criminal court, but the juvenile court is vested with the sole authority to determine whether a juvenile should be transferred.  Juveniles accused of felonies are guaranteed a right to a fitness hearing before being sent to the criminal division of superior court to be tried as an adult.

(People v. Marquez (2017) 11 Cal.App.5th 816, 821, review granted July 26, 2017, S242660.)

Second, Prop. 57 reversed the burden of proof when there is a fitness or transfer hearing.  It did this in different ways.  It started by deleting former subdivision (c) of section 707.  Former subdivision (c) applied to those minors 14 years old or older who were accused of committing the serious crimes listed in section 707 subdivision (b).  Former subdivision (c) created a presumption that a minor was unfit for treatment in juvenile court unless the court concluded that the minor would be amenable to treatment through juvenile court facilities based on an evaluation of the five criteria mentioned above.  Here’s how former subdivision (c) read in part:

With regard to a minor alleged to be a person described in Section 602 by reason of the violation, when he or she was 14 years of age or older, of any of the offenses listed in subdivision (b), upon motion of the petitioner made prior to the attachment of jeopardy the court shall cause the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor being considered for a determination of unfitness.  Following submission and consideration of the report, and of any other relevant evidence that the petitioner or the minor may wish to submit, the minor shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence, which evidence may be of extenuating or mitigating circumstances, that the minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court based upon an evaluation of each of the criteria specified in subparagraph (A) of paragraphs (1) to (5) inclusive:…..

(Cal. Welf. & Inst. Code § 707(c), West’s California Penal Code with      Selected Provisions from Other Codes and Rules of Court (2016 ed.) p. 2601, emphasis added.)

Furthermore, this prior law required a finding of fitness to be supported by a finding that the minor is fit under “each and every one of those criteria.”  (Cal. Welf. & Inst. Code § 707(c)(5)(B), West’s California Penal Code with Selected Provisions from Other Codes and Rules of Court (2016 ed.) p. 2602.)

Thus under the old law a minor had the burden of proof to rebut the presumption of unfitness to be treated in juvenile court by a preponderance of the evidence.   (People v. Superior Court (Steven S.) (1981) 119 Cal.App. 162, 177.)  And the court was “required to make findings that the minor is fit and proper under each of five criteria.”  (Sheila O. v. Superior Court (1981) 125 Cal.App.3d 812, 814-815.)  But under Prop. 57 the prosecution now has the burden of proof.  Welfare and Institutions Code section 707 subdivision (a)(1) now provides that in a case where a minor 16 years old or older is charged with committing a felony, or a minor 14 or 15 years old is charged with committing one of the serious crimes listed in subdivision (b), “the district attorney or other appropriate prosecuting officer may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction.”  (Emphasis added.)  And since the prosecution would be the moving party in a proceeding to transfer a minor from juvenile to adult court, the prosecution has the burden of proof.  (Cal. Evid. Code §§ 500, 550.)  More specifically, under Prop. 57:  “In a  transfer of jurisdiction hearing under section 707, the burden of proving that there should be a transfer of jurisdiction to criminal court jurisdiction is on the petitioner, by a preponderance of the evidence.”  (Cal. Rules of Court, Rule 5.770 (a).)  And, “On the child’s motion, the court must determine whether a prima facie showing has been made that the offense alleged is an offense that makes the child subject to transfer as set forth in subdivision (a).” (Cal. Rules of Court, Rule 5.766 (c).)

Takeaway Regarding Changes Made by Prop. 57 when Government seeks to Charge Minors as Adults

 The new law created by Prop. 57 has created a new paradigm shift where the DA must prove that a minor should be charged as an adult. There is a hearing required to charge a minor as an adult, and they are no longer able to “direct file” into adult court. The DA has the burden of proof to establish that based on several factors, the minor deserves to be treated like an adult and thus punished as an adult.

At Honeychurch & Boyd, we take pride in protecting the rights of minors,  which can be all the more important in serious cases where the charges could implicate serious punishment, or even life in prison. If your loved one is a minor, or a previous minor, who is charged with a crime, and they were arrested in the Solano County communities of Fairfield, Green Valley, Vacaville, Benicia, Vallejo, Dixon, or Rio Vista, or anywhere in  Napa and Yolo Counties, do not hesitate to call our office today to schedule a free consultation, to learn how our outstanding attorneys can assist in  achieving the best possible results in your case.