L.R. v. Superior Court CA4/3 ( 2021 )

Filed 7/6/21 L.R. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
L.R.,
Petitioner,
v. G059599
THE SUPERIOR COURT OF ORANGE (Super. Ct. Nos. 07WF2103 &
COUNTY, 19DL1078)
Respondent; OPINION
THE PEOPLE,
Real Party in Interest.
Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Lewis W. Clapp, Judge. Petition denied.
James M. Crawford for Petitioner.
Todd Spitzer, District Attorney, and Holly M. Woesner, Deputy District
Attorney, for Real Party in Interest.
No appearance by Respondent.
This is a unique case. The juvenile court had to determine whether
29-year-old L.R. should be retained in the juvenile court for crimes he committed when
he was 16 years old and the jury convicted him of 10 years earlier. The court concluded
he should not. In his petition for writ of mandate, L.R. argues the court erred by ordering
him transferred to criminal court. We disagree and deny the petition.
I. Facts of the Offense
Around midnight one summer evening in 2007, L.R. and Jose Armendariz,
who were both 16 years old, and Luis Menchaca and Diane Estrada decided to “hit up”
Oliver Martinez and Michelle Miller as they walked on a freeway overpass. L.R.,
Armendariz, and Menchaca were members of the Down Crowd gang, and Menchaca
recognized Martinez as a member of Crow Village, a rival gang. Menchaca asked
Martinez if he had a lighter. Martinez replied, “‘Aren’t you that pussy from dick
cravers?’” which was a derogatory term for the Down Crowd gang. Menchaca said,
“‘Fuck Crow.’” L.R. pulled out a handgun and shot Martinez, shot Miller, and shot
Martinez a few more times. Martinez and Miller died. L.R. reloaded the gun and gave it
to Armendariz.
As L.R. and his confederates left the scene, Estrada called a friend to pick
them up. The police arrived before they could escape. Armendariz hid the gun, and L.R.
threw a pair of gloves. A police officer found both. Forensic testing revealed L.R.’s
DNA was on the gun and gloves, and he had gunshot reside on his right hand.
Armendariz’s dominant left hand was not tested for gunshot residue because it was in a
cast. Estrada told police that L.R., Armendariz, and Menchaca followed the victims but
she did not know who shot them because she remained behind to act as the lookout. L.R.
told officers he was a member of Down Crowd with the moniker of “‘Turtle’” and named
two rival gangs, neither of which was Crow Village. He denied knowing Armendariz or
Menchaca, or being involved in the shooting. Menchaca told officers he was a member
of Down Crowd with the moniker of “‘Puppet’” and said Crow Village was a rival gang.
2
He eventually recounted the gang confrontation and L.R.’s shooting the two victims.
Armendariz corroborated Menchaca’s account.
II. Criminal Court Proceedings
An amended information charged L.R. with two counts of murder for a
1
criminal street gang (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(3), (22), counts 1 and
2) and street terrorism (§ 186.22, subd. (a), count 3). As to counts 1 and 2, the
information alleged L.R. was 16 years of age (Welf. & Inst. Code, § 707, subd. (d)(1)), he
committed the offenses for a criminal street gang (§ 186.22, subd. (b)(1)), and a principal
intentionally discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)). L.R.
turned 16 years old just 25 days before the offenses.
At trial, the prosecution’s theory was L.R. was the actual shooter while
Armendariz aided and abetted in the murders. During the first trial, the jury convicted
L.R. of count 3 but could not reach verdicts on counts 1 and 2. During the second trial,
the jury convicted L.R. of counts 1 and 2, and found true all the allegations. In January
2011, the trial court sentenced L.R. to prison for life without the possibility of parole plus
65 years.
III. Appellate Court Proceedings
In People v. Ramirez et al. (2013) 219 Cal.App.4th 655, we affirmed L.R.’s
convictions, reversed his sentence because it amounted to cruel and unusual punishment,
and remanded for resentencing. Our Supreme Court granted the Attorney General’s
petition for review and later transferred the matter to this court to reconsider its decision
in light of People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez). (People v. Ramirez
(Dec. 18, 2013 & July 9, 2014, S214133 [nonpub. orders].)
In People v. Ramirez et al. (Aug. 27, 2014, G044703) [nonpub. opn.], we
again affirmed his convictions but reversed his sentence and remanded the matter to the
1
All further statutory references are to the Penal Code, unless otherwise
indicated.
3
trial court to resentence L.R. in light of Gutierrez, supra, 58 Cal.4th 1354. In our
opinion, as relevant here, we explained Menchaca testified in exchange for a plea deal.
Menchaca testified concerning the charged offenses and uncharged conduct involving
him, L.R., and Armendariz. The two instances of uncharged conduct occurred one month
and a few days before the charged offenses. They went into rival gang territory, initiated
gang challenges to young males, and Armendariz shot his gun at the young males but
missed. Later, our Supreme Court denied L.R.’s petition for review. (People v. Ramirez
(Nov. 12, 2014, S221726 [nonpub. order].)
IV. Further Criminal Court Proceedings
The trial court continued resentencing numerous times over the next two
years. Before the trial court resentenced L.R., California voters passed Proposition 57,
which changed Welfare and Institutions Code sections 602 and 707 (section 707)
regarding prosecution of minors in adult court. (Prop. 57, as approved by voters, Gen.
Elec. (Nov. 8, 2016).) After the parties filed sentencing briefs, L.R. filed motions
requesting the trial court transfer the case to juvenile court pursuant to Proposition 57.
The prosecution filed opposition. The trial court granted L.R.’s request to transfer the
case to the juvenile court but stayed the transfer.
The Orange County District Attorney (OCDA) appealed. He also filed a
petition for writ of mandate/prohibition and requested an immediate stay. This court
granted in part the request for an immediate stay, but we allowed the juvenile court to
proceed with any scheduled hearing to allow witnesses to testify. (People v. Superior
Court (Ramirez) (July 12, 2018, G056544 [nonpub. order].) Later, we summarily denied
the petition for writ of mandate and dissolved the stay. (People v. Superior Court
(Ramirez) (July 27, 2018, G056544 [nonpub. order].) Our Supreme Court denied the
OCDA’s petition for review. (People v. Superior Court (Ramirez) (Oct. 10, 2018,
S250418 [nonpub. order].)
4
In People v. Ramirez (2019) 35 Cal.App.5th 55, 67-68, this court concluded
the trial court properly transferred the matter to the juvenile court to conduct a transfer
2
hearing. Our Supreme Court denied the OCDA’s petition for review. (People v.
Ramirez (Aug. 14, 2019, S256191 [nonpub. order].) The trial court transferred the case
to the juvenile court to determine whether L.R. should be transferred to criminal court
pursuant to section 707, subdivision (a)(2).
V. Juvenile Court Proceedings
After transfer, the Orange County Probation Department (OCPD) and
Dr. Martha L. Rogers filed reports with the juvenile court. We discuss both reports in
detail.
A. OCPD Section 707 Report
Probation officer Pablo Yepez prepared the OCPD’s section 707 report. In
his report, Yepez addressed the following: the circumstance of the offense and
investigation; victim information; his interviews of L.R. and his parents, and other
interested parties; L.R.’s youth, family, school history, and adjustment in custody; and
section 707’s five fitness criteria.
As to his interview of L.R., Yepez stated L.R. admitted he was “infatuated
with the gang lifestyle” and he sought comfort and acceptance from gang members who
he met in junior high school. He was “jumped into Down Crowd” about one year before
the incident. He was arrested for alcohol possession and given the opportunity to resolve
the arrest informally by going to substance-abuse counseling, but he refused to
participate. L.R. explained that after his brother died unexpectedly, he understood the
pain he caused the victims’ families. He expressed remorse for his actions and
2
We grant L.R.’s request to take judicial notice of the record on appeal in
case No. G056522. (Evid. Code, §§ 459, 452, subd. (d).) We assume his additional
reference to People v. Torres, case No. G058849 was a typographical error because it is
unrelated to this case.
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“believe[d] he had ‘learned his lesson.’” While in custody, L.R. earned his high school
diploma, read philosophy books, and taught himself a foreign language. He participated
in minimal “‘prison politics’” to avoid being assaulted. He denied taking drugs or
drinking “pruno.” He did not participate in rehabilitative programs because he was
ineligible and he did not participate in counseling because of “‘prison politics.’” But he
admitted he previously dealt with anger by acting aggressively and stated he learned how
to be patient and “calm himself down.” L.R. said that if he were released, he would live
with his family and help his parents, study electrical engineering in college, and help
“‘kids like him.’”
With respect to his youth and family history, Yepez stated L.R.’s mother
reported he was one of six children and he met all development milestones. His mother
stated she was “‘over protective’” and L.R. was rebellious and would disobey her and her
husband. She added their relationship changed when she returned to work. His mother
did not know L.R.’s friend but learned from a police officer his friend’s residence was “a
known ‘gang house.’” L.R.’s parents did not believe he suffered any childhood distress.
His mother reported one occasion when she slapped her husband, and he struck her—the
young L.R. saw the retaliation. It did not appear the incident affected him. As to the day
of the shooting, Mother said she had to go to Tijuana to obtain dental work. L.R. wanted
to join her, but she declined because she had to bring a piece of furniture back with her.
She blamed herself for what happened. L.R.’s father admitted he was an alcoholic while
L.R. was a child.
Yepez reported L.R. was in gifted and talented education (GATE) in
elementary school and advanced classes in intermediate school. L.R. noticed his friends
were not in the same advanced classes and he purposefully failed them so he would not
be called a “‘nerd.’” In high school, L.R. developed a truancy problem and stopped
attending school. He attended a few continuation schools where he associated with
“negative peer influences.”
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Yepez detailed L.R.’s adjustment on probation and in custody. Probation
records showed he had two previous charges the OCDA dismissed. While in Orange
County Juvenile Hall from 2007 to 2009, L.R. suffered 18 behavior notices and five
special incident reports. One behavior notice involved displaying gang hand signs during
church. One special incident report involved getting tattooed. He met with a therapist on
three occasions. In prison from 2011 to 2014, he suffered two rule violation reports. The
first involved the destruction of property. We provide the following description of the
second August 2012 incident in its entirety: “[L.R.] and 49 other Southern Hispanic
inmates were involved in a mass disturbance. [Records] indicate two Southern Hispanic
inmates were non-compliant with correctional officers responding to an unrelated
incident. One of the Southern Hispanic inmates took a combative stance against the
correctional officers, as the remainder of the Southern Hispanic inmates including [L.R.]
advanced toward the ‘skirmish line.’ Consequently, [L.R.] received 12 months of
Administrative Segregation Confinement for violating rule 3005(d)(1)—Battery on Non-
Inmate with insufficient force to cause serious injury.” While at the Theo Lacy Facility
from December 2014 to the time of the report, L.R. suffered six incident reports, two of
which bear mentioning. In July 2018, L.R. “‘flipped off’” the guard station because the
guard turned the television off. We provide the following description of the April 2019
incident in its entirety: “Deputies observed an inmate from an adjoining unit pass
contraband to another inmate through the connecting door. The deputies attempted to
retrieve the contraband from the inmate who received the contraband. The deputies
attempted to search the inmate’s cell, but he became defiant. During this time, [L.R.] was
located at the dayroom phones. [L.R.] then ran toward the deputies in an attempt to assist
the defiant inmate. [L.R.] reached for a responding deputy’s hands. [L.R.] stated at the
disciplinary hearing, ‘I have nothing but respect for the deputies. I’m sorry.’
Consequently, [L.R.] received 30 days of Disciplinary Isolation.” L.R. said he had to get
involved because of “‘prison politics.’”
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Yepez reported Miller’s mother stated Miller’s 15-year-old son has been
without his mother for 12 years. Miller’s mother was in disbelief L.R. could go home
and asked when her daughter can come home. He reported Martinez’s father became ill
during the trial when he saw photographs of his son trying to protect Miller.
Yepez addressed section 707’s criteria. As to L.R.’s criminal
sophistication, Yepez reported L.R. did not suffer from any cognitive or developmental
delays. Although L.R. saw one instance of domestic violence between his parents, L.R.
did not believe the incident affected him. Yepez stated 16-year-old L.R. exhibited
sophistication in arming himself and using a gun but he exhibited immaturity and
impulsiveness when reacting violently to Martinez’s verbal slight. Additionally, L.R.
refused to cooperate with the officers’ investigation. Yepez opined L.R. exhibited “a
moderate degree of sophistication.”
With respect to whether L.R. could be rehabilitated prior to the juvenile
court’s jurisdiction expiring, Yepez stated 28-year-old L.R. was beyond the juvenile
court’s jurisdiction. Based on his age, L.R. would be subject to a two-year period of
control from the date of commitment and would serve 18 months. Yepez opined he
would benefit from postrelease transitional support and supervision. Alternatively, the
court could sentence him to stayed time and refer him to the Youth Development court
where he could receive services.
As to L.R.’s previous delinquent history, Yepez reported L.R. purposefully
failed his intermediate school honors classes. L.R. began associating with Down Crowd
gang members during ninth grade. While at various continuation high schools, his
behavior deteriorated. Yepez reported L.R. has not benefited from previous attempts at
rehabilitation because this was the first allegation filed in the juvenile court.
Finally, after reciting the circumstances of the offenses, Yepez reported he
was unable to interview L.R. about the offenses. Yepez stated, however, L.R. was
remorseful for his conduct and regretted the pain he caused the victims’ families.
8
In conclusion Yepez opined L.R. was mature and appeared eager to
participate in the interview. Yepez added L.R.’s father’s alcoholism and the domestic
violence incident could have affected him. Yepez “credit[ed]” L.R. for his “minimal” in-
custody disciplinary history. The circumstances of the offense caused Yepez concern.
Yepez explained that although L.R. had not benefitted from rehabilitative services, “it
appears as though [he] is on the appropriate path to rehabilitation.” Yepez opined, “It is
believed that [L.R.] would have been found suitable for [j]uvenile [c]ourt proceedings
had a previously . . . [section] 707 report been originally ordered.” Yepez recommended
the juvenile court find L.R. to be suitable for juvenile court proceedings.
B. Rogers’ Report
Rogers conducted a psychological evaluation and submitted a report on
L.R.’s behalf. Rogers reported 28-year-old L.R. did not suffer from any early
development problems and he met his physical and mental milestones. As an adolescent,
L.R. was overweight, which caused him insecurity, and his family called him “‘Gordo,’”
which caused him embarrassment. L.R. was in GATE and honors classes, but the
intermediate school moved him to regular classes because of a lack of effort, disciplinary
problems, and truancy. He wanted “to fit in and be cool” and “prove himself to peers.”
L.R.’s school records stated his parents failed to hold him accountable and did not give
permission to receive counseling services in October 2006. He admitted he suffered two
juvenile arrests, which were resolved informally. He said that while incarcerated he
taught himself German, and studied philosophy, history, psychology, and religion. His
reading helped his mind and love of learning to grow. He wanted to be an engineer,
teacher, or machine operator. L.R. admitted he was an underage drinker and had a
problem with alcohol. He also admitted that while incarcerated, he drank alcohol four or
five times, once as recently as two and one-half years ago. He refused to participate in
counseling as a youth and did not participate in in-custody services because of “‘prison
politics.’” He denied participating in any gang-related misconduct while in custody. He
9
added that while in custody, he did his best to “stay out of trouble,” but he was not
always successful. He explained it was not his fault, and he did what he had to do to
survive.
Rogers reported L.R. answered a series of self-appraisal prompts. L.R.
stated the worst day of his life was when his brother died unexpectedly. When asked
what he liked best about himself, he answered he was “a good-looking person” and his
“mind: my intellect.” When asked what he liked least about himself, he answered the
following: “[T]here is not really much I dislike about myself. . . . I guess physically I
would like to look a bit more fit but that could change through more exercise and way
better dieting. Also [sic] would like to work on my posture to stand up straighter. Other
than that, I’m [okay] I think.” When asked what he would change about himself, he said
his eyesight so he did not have to wear glasses, but nothing else. A prompt asked L.R.
what he would do if he could turn back the clock and unring the bell. He replied the
following: “[D]efinitely study harder in school. Try to have a better work ethic as a kid.
Not care what others think . . . . Not pick bad friends. Not join a gang. Read more and
learn more. There’s a lot of things I’d do differently.” L.R. stated if he could change one
thing he would not be incarcerated but free to live a good life. He said the biggest
mistake he made was joining a gang because “[e]verything negative that has happened
[was] a culmination or probable consequence of that.” L.R.’s three wishes were the
following: “I would wish for my freedom, to have perfect health and perfect health for
my family . . . I would want freedom above all else because it’d give me the liberty and
possibility to work and follow my dreams . . . .”
Rogers administered several psychological tests to provide a
comprehensive evaluation of L.R. Rogers reported L.R. exhibited a “slight propensity
towards positive self-presentation.” He also exhibited feelings of helplessness, anxiety,
stress, worry, and a preference to avoid interacting with others. Finally, he suffered from
10
low self-esteem and excessive self-criticalness and he met the criteria for being at a
higher risk of committing suicide.
Rogers reported L.R. acknowledged having problems with negative
relationships and resented people he could not control. He avoided deeper relationships
because he feared people would demand more than he could cope with and he was
“constantly concerned about how others view him.” She added he “tests as more socially
inept than he presents himself” and “[h]is emotional neediness may lead to ineffective or
maladaptive behavior in close relationships.” Rogers explained he thinks “logically” to
make “reasonable conclusions about relationships,” but he intellectualizes to cope with
unfamiliar, unmanageable, or unpleasant feelings. She added, “he may need to spend
extra time figuring out how to adapt to unfamiliar or changing circumstances.” Rogers
opined his test results showed he was elevated for Obsessive Compulsive and Narcissistic
Personality Disorder.
Rogers reported L.R.’s alcohol use “classif[ied] him as having had a high
probability of a severe substance abuse use disorder in the six months” before the
murders. His disorder would have placed him “at a relatively high risk for legal problems
and other types of norm violations compounded by his substance abuse[]” and his “risk of
acting out would have been very high.” Rogers diagnosed L.R. as suffering from alcohol
use disorder and dysthymic disorder with obsessive-compulsive traits.
Rogers addressed section 707’s criteria, but she did not make a definitive
finding on each criterion. Instead, she recited each criterion’s elements and discussed the
relevant evidence without opining whether the criterion weighed in favor of retention or
transfer.
With respect to the degree of criminal sophistication, Rogers opined it was
reasonable to conclude his cognitive abilities were average or better for his age at the
time of the offenses because he tested as gifted. She explained the ability to delay and
think through consequences are not fully formed in 16-year-old males. She added his
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alcohol abuse exacerbated the situation by impairing his judgment and increasing his
impulsivity. Rogers stated L.R.’s mother was overprotective and when she returned to
work, L.R. sought direction and approval from older gang members with whom he was
“‘infatuated.’” For example, he refused gifted school programming to avoid his peers
ridiculing him. Rogers stated that although L.R. did not create the distraction, the
circumstances of the offense demonstrated intentionality—he participated in a gang
challenge, and after he shot a rival gang member, he shot a second victim and reloaded
the gun. She opined that when under pressure, L.R. was “more prone to comply and/or
act before thinking” Rogers concluded he was still reluctant to agree he looked up to his
codefendants for approval and “he tests still as not skilled interpersonally, somewhat
socially avoidant and was likely more dependent on both these two codefendants for
social approval and seeking status with them in the gang.”
As to whether L.R. could be rehabilitated before the expiration of juvenile
court’s jurisdiction, Rogers noted he was beyond the scope of local juvenile court
jurisdiction. She added that because of his age, this was a unique situation and if he was
released, “there should be a careful plan in place . . . with particular focus upon substance
abuse treatment.”
With respect to L.R.’s previous delinquent history, Rogers stated he started
associating with Down Crowd gang members when he was in ninth grade and with six
months to one year, his behavior “‘spiraled out of control.’” (Italics omitted.) She
opined L.R.’s parents were not assertive enough to control him.
With respect to the success of previous attempts by the juvenile court to
rehabilitate L.R., Rogers noted his parents refused school counseling probably because he
told them he would not attend. At the time of the offenses, he was “socially dependent”
and he was prone to depression. She explained he was amendable to treatment. She cited
to the fact that since he had been in custody, he sought and admired adult role models
who provide him guidance to achieve his goals. She concluded he needed help adjusting
12
to adult-level life in the community, dealing with age-appropriate relationships, finding
educational and occupational training, and managing stress without alcohol.
As to the circumstances and gravity of the offense, Rogers noted L.R. shot
and killed two people and “[t]here’s no way that the severity of the offenses can be
minimized.” She added L.R. considered his gang involvement “‘stupid.’” (Italics
omitted.) She opined, however, he was genuinely remorseful for what he did and the
pain he caused the victims’ families, in part because of the deep impact his brother’s
death had on him.
Rogers concluded L.R. matured significantly and would benefit further
from services to deal with the issues if he were released. She stated he developed the
self-discipline to participate in any programming and he was an excellent candidate for
education and training. She said he had a good likelihood of becoming a skilled
tradesperson or professional “if his felonies can be overcome.” She stated his substance
abuse issues “should be continually monitored.” She opined, “his risk in the community
3
is minimal as long as he remains substance-free.”
C. Evidentiary Hearing
At a multi-day hearing, the juvenile court heard from three witnesses and
admitted into evidence the parties’ exhibits. The court admitted into evidence the
prosecution’s exhibits: section 707 report, our prior opinion in People v. Ramirez et al.,
supra, G044703, and a transcript of Farmer’s testimony. The court also admitted into
evidence L.R.’s exhibits: our prior opinion in People v. Ramirez, supra, 35 Cal.App.5th
55, Rogers’ report, letters, and certificates, and L.R.’s letter.
3
The parties disagree about the import of Rogers’ opinion. In his petition,
L.R. asserts Rogers, like Yepez, concluded he should remain under and was suitable for
juvenile court jurisdiction. The OCDA disputes this. In his reply, L.R. cites to Rogers’
discussion of the five criteria. Rogers never expressly opined the juvenile court should
retain jurisdiction. Her discussion of the five criteria speaks for itself.
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Yepez testified at length about his section 707 report, and we need not
repeat that information. We provide his testimony where it supplements or provides
context to his report. Yepez testified this was the third or fourth section 707 report he
had prepared. His recitation of the circumstances of the offense was based on police
reports and not trial court transcripts. He stated there was no evidence L.R. had been
“jumped out” of the gang or been debriefed to demonstrate a severed connection from the
gang. As to L.R.’s in custody disciplinary history, Yepez stated the tattoo he got was a
Down Crowd gang tattoo. Yepez described the mass disturbance involving 50 inmates
and the physical altercation with the officer as both gang related, i.e., L.R. had to
participate or the gang would assault him. He equated “prison politics” as gang activity.
Regarding his statement L.R. did not participate in counseling because of prison politics,
L.R. told him that if you participate in counseling “you are no longer good to the gang”
and you become a target. Yepez believed L.R.’s possessed above average intelligence,
but noted he was the only person in his family to have been involved in a gang.
On cross-examination, Yepez stated he considered L.R.’s in custody
academic achievements and self-study of various subjects in making his
recommendation. He said one correctional officer described L.R. as “a really good kid in
custody[]” and “well-behaved.” Yepez thought it demonstrated maturity to immediately
apologize to the deputy who he tried to grab and he accepted his punishment without
comment. He said L.R. participated in substance abuse counseling and anger
management studies “when that was available.” On redirect examination, Yepez
admitted he took L.R.’s claims about self-studying German and philosophy at face value.
On recross-examination, Yepez agreed L.R. mentioned specific philosophy books and
quoted from them.
The juvenile court asked Yepez to clarify his statement in the section 707
report that had the court conducted a section 707 hearing in 2007, the court would not
have transferred him to criminal court. Yepez admitted he did not know what the court
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would have done then. On redirect examination, he clarified that in 2007, the OCPD
would have concluded he was suitable for juvenile court.
L.R.’s father testified on his behalf. Father stated that since L.R. had been
in custody, his family visited him on a regular basis because they loved him and were
devoted to him. Father stated the family was committed to helping L.R. achieving his
personal, education, and career goals if released from custody. Father said L.R. had
improved himself while in custody and they would help him obtain any counseling he
needed to transition back into society.
L.R.’s younger brother (Brother) testified on his behalf. Brother stated they
were close growing up until L.R. started hanging out with older guys who were “losers”
the summer before L.R.’s freshman year. Brother visited L.R. regularly while he was in
custody, and L.R. genuinely seemed to want to rebuild their relationship. Brother
believed L.R. had matured emotionally and spiritually. Brother said the entire family was
committed to supporting L.R. if he were released. Finally, Brother stated L.R. was not a
danger to society because he was committed to being a good citizen and member of the
family, educating himself, and working.
The parties stipulated to admission of the former testimony of Department
of Juvenile Justice (DJJ) Patrol Agent Michael Farmer, a court and probation department
liaison with the intake services section. Farmer provided detailed testimony about DJJ
jurisdiction, intake categorization, and programming. Farmer stated that at intake, a
juvenile undergoes psychological, educational, and sociological assessments to develop
an individualized treatment plan. He explained the treatment plan was based on cognitive
behavioral interventions that focused on changing how juveniles think, feel, and behave.
He said there was a program designed to assist juveniles with social networking, i.e., peer
pressure, but there was no gang intervention program. Farmer explained that if a person
was sentenced to a life term, the jurisdiction expired at the age of 25 or two years from
the date of commitment if the person was already over the age of 23. He added DJJ had
15
about 18 months to work with a juvenile because they were transferred to the court and
probation department three to four months before they were released. He stated
individuals were categorized and provided a release hearing date based on the crime
committed and the murder baseline was seven years. He added that in preceding years,
the length of stay for a first degree murder offense was between 47 and 70 months. On
cross-examination, Farmer stated older individuals who were committed to DJJ
participated in their program more effectively and efficiently because of their experience.
After the close of evidence, the prosecutor argued DJJ did not have the
necessary time or programming to rehabilitate L.R. The prosecutor asserted L.R.’s
conduct and statements demonstrated he had aged but not matured. He added his career
plans were unrealistic and inconsistent, telling people what they wanted to hear. The
prosecutor argued there was evidence to support each of the five criteria and the court
should order him transferred to criminal court.
L.R.’s counsel provided argument to supplement his written brief. Counsel
noted L.R. turned 16 years old less than one month earlier, and “but for those few days,
he would have stayed in juvenile court.” Counsel argued the prosecution failed its
burden to establish L.R. could not be rehabilitated and his record in custody demonstrated
he could be rehabilitated. Counsel stated the OCPD would have found him suitable for
juvenile court both then and now. Counsel added Rogers, who subjected him to a
comprehensive and probing examination, also concluded he was suitable for juvenile
court.
At a hearing the next day, the juvenile court ordered L.R. transferred to
criminal court. The court thanked counsel for a professional and exhaustive presentation.
After noting a minor’s brain is not fully developed, the court stated it spent a lot of time
on weekends and mornings considering all the evidence to arrive at a just result in these
very difficult cases. The court informed counsel it would address each factor and the
16
relevant evidence, and indicate where the prosecution satisfied its burden and where it did
not.
First, the juvenile court initially opined L.R. exhibited “a high degree of
criminal sophistication” but clarified it “was sophisticated.” The court noted that
although Martinez’s insult of Down Crows was spontaneous, L.R. did not act impulsively
because he armed himself and participated “in a gang hit up.” The court cited to the fact
that after he shot Martinez, he shot Miller, reloaded the gun, and gave the gun to
Armendariz. The court opined that for a 16 year old, he was of average maturity and
above average intelligence. The court was troubled by the fact he consciously decided to
fail his classes to gain acceptance and prove himself in the gang. The court opined,
“[t]here’s no doubt that the peers that he had at that time probably exerted some pressure
on his behavior, at least in his own mind, he decided that he wanted to -- in fact, I think
he said he wanted to prove himself to gain acceptance.” The court added there was no
evidence he suffered any mental or emotional trauma. The court concluded the
prosecution satisfied its burden on this factor.
As to the second criterion, whether the juvenile court could rehabilitate
L.R. before its jurisdiction expired, the court concluded it did not weigh in favor of
retention or transfer. The court commended him on the progress he had made in his
education, rehabilitation, and maturation. The court noted he attended a few therapy
sessions but he did not take advantage of juvenile hall’s extensive programming. The
court balanced his progress against his in custody disciplinary record and the time it had
to rehabilitate him—at most two years. The court was troubled by the fact L.R. allowed
prison politics to result in two disciplinary violations, and prevented him from
participating in rehabilitative programming. After stating L.R. shot Martinez and Miller
in part because of peer pressure or to prove himself, the court opined him submitting to
pressure was “a recurring theme” that concerned the court. When L.R.’s counsel
questioned the court’s characterization of the mass disturbance incident and said L.R. was
17
not charged with a crime, the court explained it based its opinion solely on the report’s
description of the incident. The court concluded the evidence left it “doubting” there was
sufficient time to rehabilitate him before the court lost jurisdiction. The court repeated
the criterion did not weigh in favor of retention or transfer and “pretty much evens out.”
The juvenile court explained the third criterion, L.R.’s delinquent history,
weighed in favor of retaining him in juvenile court. The court explained L.R. exercised
poor judgment by purposefully failing honors classes and associating with gang members
but he did not suffer any criminal charges. It also reasoned he exercised poor judgment
during the two instances of uncharged conduct. The court mused the uncharged conduct
was unreliable because Menchaca received a greatly reduced sentence.
The juvenile court also concluded the fourth criterion, previous attempts to
rehabilitate, also weighed in favor of retaining jurisdiction in juvenile court. The court
noted that although L.R. refused his parents’ efforts to enroll him in substance abuse
counseling, “there really haven’t been any” attempts to rehabilitate him.
Finally, the juvenile court opined the circumstances and gravity of the
offense, the fifth criterion, weighed in favor of transferring him to criminal court. The
court reasoned L.R. armed himself with a loaded gun and “participate[d] in a gang hit
up.” It said he intentionally shot Martinez and then decided to shoot Miller. The court
added the harm was great because they were both dead, and Miller left a son who grew
up without his mother. The court opined his conduct was not the result of significant
trauma that would have impaired his mental and emotional development. The court
concluded this factor weighed in favor of transfer to adult court.
The juvenile court concluded, “So in totality, the court believes that the
[OCDA] has met his burden of proof by a preponderance of the evidence. [¶] . . .
[Yepez’s and Rogers’] recommendations, while appreciated, are not determinative . . . .
[¶] So the court’s finding and ruling is that he should be transferred to adult court.”
18
DISCUSSION
“To justify the transfer of a minor from juvenile court to the criminal court
system, the prosecution bears the burden of establishing by a preponderance of the
evidence the minor is not a suitable candidate for treatment under the juvenile court
system. [Citations.] There are five statutory factors. The court shall consider the five
factors and recite the basis for its decision in an order entered upon the minutes.
[Citation.]” (J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 715 (J.N.).)
“[A] decision to transfer a minor to adult/criminal court . . . require[s] a
juvenile court to clearly and 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. [Citation.] In most cases, this requirement will be met where
the juvenile court performs a factual analysis of the relevant factors as to each criterion—
as the juvenile court did in this case—and then specifies the criteria that weighed in favor
of transfer. . . . In all cases, appellate review would be greatly assisted if the juvenile
court states which of the . . . criteria weighed in favor of transfer, against transfer, or
neither in favor of or against transfer.” (C.S. v. Superior Court (2018) 29 Cal.App.5th
1009, 1029, fn. omitted (C.S.).) “Nothing in section 707 indicates that the . . . court [is]
required to give equal weight to each of the five criteria or that it would necessarily be an
abuse of discretion to find that one criterion outweighed the other criteria.” (Id. at
p. 1035.)
“We review the juvenile court’s finding the minor was unsuitable for
treatment in the juvenile court for error under an abuse of discretion standard. [Citation.]
‘There must be substantial evidence adduced at the hearing that the minor is not a fit and
proper subject for treatment as a juvenile before the court may certify him to the superior
court for prosecution. [Citations.]’ [Citation.] [¶] In reviewing the juvenile court’s
decision, ‘[t]he . . . court’s findings of fact are reviewed for substantial evidence, its
conclusions of law are reviewed de novo, and its application of the law to the facts is
19
reversible only if arbitrary and capricious.’ [Citation.] ‘All exercises of discretion must
be guided by applicable legal principles . . . . [Citations.] If the court’s decision is
influenced by an erroneous understanding of applicable law or reflects an unawareness of
the full scope of its discretion, the court has not properly exercised its discretion under
the law. [Citation.] Therefore, a discretionary order based on an application of improper
criteria or incorrect legal assumptions is not an exercise of informed discretion and is
subject to reversal. [Citation.]’ [Citation.] The ‘discretion must be exercised in
accordance and within the framework prescribed by the Legislature.’ [Citation.]” (J.N.,
supra, 23 Cal.App.5th at pp. 714-715.)
“The standard is deferential: ‘When a trial court’s factual determination is
attacked on the ground that there is no substantial evidence to sustain it, the power of an
appellate court begins and ends with the determination as to whether, on the entire
record, there is substantial evidence, contradicted or uncontradicted, which will support
the determination . . . .’ [Citation.]” (People v. Superior Court (Jones) (1998) 18 Cal.4th
667, 681, fn. omitted (Jones).)
I. Criminal Sophistication
The first criterion is the degree of criminal sophistication exhibited by the
minor. (§ 707(a)(3)(A)(i).) Section 707(a)(3)(A)(ii) specifies that when evaluating this
criterion, “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.” The juvenile
court found this factor weighed in favor of unsuitability.
L.R. argues the record includes no evidence establishing he was criminally
sophisticated and the juvenile court improperly evaluated this criterion. He claims his
20
age, immaturity, underdeveloped intellectual capacity, and susceptibility to peer pressure
supported the conclusion was not criminally sophisticated. Substantial evidence
supported the court’s conclusion.
The record demonstrated L.R. turned 16 years old less that one month
before he shot and killed the two victims. In his report, Yepez stated L.R.’s parents
indicated he met all development milestones and did not suffer any cognitive or
developmental delays. The evidence unquestionably established he was above average
intellectually because he was in GATE and honors classes. L.R. reported he purposefully
failed those classes because his friends were not in those classes, which although unwise
demonstrated calculated thinking. Additionally, he stated he sought acceptance from
gang members, indicating he was susceptible to peer pressure.
As to the offenses, Yepez and Rogers both opined L.R. acted impulsively in
response to Martinez’s insult. But the evidence demonstrated L.R. armed himself with a
gun and when Menchaca spotted a rival gang member, L.R. willingly participated in the
gang hit up. After L.R. shot Martinez and Miller, he reloaded the gun. From this
evidence one could reasonably conclude he was willing to continue his violent conduct.
He then demonstrated shrewdness by giving the gun to Armendariz to dispose of. The
court reasoned that although L.R. was 16 years old and subject to “some [peer] pressure,”
he was gifted intellectually and mentally and emotionally healthy. His conscious
decision to arm himself, participate in a gang confrontation, shoot two people, and try to
dispose of the incriminating evidence tended to establish sophisticated thinking. This
was substantial evidence the court could reasonably rely on to conclude the OCDA
proved by a preponderance of the evidence L.R. was criminally sophisticated.
L.R. contends the OCDA offered no evidence to dispute Yepez’s and
Rogers’ findings. Rogers did not offer an ultimate opinion and her comments would
support either conclusion. And Yepez opined he “display[ed] a moderate degree of
21
sophistication.” The court, in fact, relied on many of Yepez’s and Roger’s factual
findings on this and other criterion.
We note the procedural posture of this case was unique and the juvenile
court reviewed a plethora of material it would not have had if it heard the motion before
trial and before L.R. spent 14 years in custody. The court did mention each of the
considerations supporting this first criterion. Nevertheless, the court could have done a
better job discussing all the evidence that related to this, and the other criterion. The
record includes other evidence that was relevant to this criterion, as the OCDA notes.
For example, L.R. wore gloves during the shooting and threw them as he fled. There was
sufficient evidence for the juvenile court to conclude the OCDA established by a
preponderance of the evidence L.R. was criminally sophisticated. But a more thorough
discussion of that evidence would have provided a comprehensive picture of L.R.’s
criminal sophistication and provided a more meaningful record for review. (C.S., supra,
29 Cal.App.5th at p. 1029 [court required to identify specific facts that it found
4
persuasive].)
II. Future Attempts to Rehabilitate
The second criterion is “[w]hether the minor can be rehabilitated prior to
the expiration of the juvenile court’s jurisdiction.” (§ 707(a)(3)(B)(i).) Section
707(a)(3)(B)(ii) specifies that when evaluating this criterion, “the juvenile court may give
weight to any relevant factor, including, but not limited to, the minor’s potential to grow
4
In C.S., the court stated, “The current version of the California Judges
Benchguide 117 recommends that juvenile court judges ‘use a ruling worksheet’ and
provides a sample worksheet. (Cal. Judges Benchbook: Juvenile Delinquency Transfer
of Jurisdiction Hearing (CJER 2018) Statement of Reasons, § 117.18.) The sample
worksheet, provided in appendix B of that benchbook, recommends that as to each of the
section 707(a)(3) criteria, the juvenile court make a ruling as to whether ‘the Petitioner
[has/has not] met their burden’ and whether each criterion ‘mitigates [for/against] transfer
to adult court.’” (C.S., supra, 29 Cal.App.5th at p. 1029, fn. 11.)
22
and mature.” The juvenile court found this factor neither weighed in favor of suitability
or unsuitability—it was equal.
In his petition’s factual recitation, L.R. states, “The court found this factor
did not weigh in favor of petitioner being transferred to adult court.” In his petition’s
argument section, he argues all the evidence supports the finding he could be
rehabilitated before the juvenile court’s jurisdiction terminates. In his reply however,
L.R. cites to the juvenile court’s comment there was insufficient time to rehabilitate him
and states, “in the end [the juvenile] court ruled this factor weighed in favor of a transfer
to adult court.” He is wrong. The record reflects the court did not conclude this criterion
weighed in favor of transfer to criminal court. Three times it stated this criterion was
equal. We must determine whether the court’s ruling was supported by substantial
evidence. It was.
The record includes evidence L.R. made progress in his education,
rehabilitation, and maturation. While in custody, he earned his high school diploma and
self-studied various subjects. He attended a few therapy sessions. Finally, Father and
Brother visited him and they both felt he had matured. Conversely, there was also
evidence his progress did not conclusively establish the juvenile court could rehabilitate
him before its jurisdiction terminated. The evidence demonstrated L.R. participated in
the mass disturbance and tried to grab a deputy’s hands because of prison politics. There
was also evidence he refused rehabilitative programming because of prison politics. The
court relied on this evidence to conclude that L.R. made “some strides,” but it was
concerned peer pressure continued to influence him and it would continue to do so if he
were released. In essence, the court mused his progress was lacking and he still had to
5
mature. Substantial evidence supported the court’s conclusion this criterion was equal.
5
We remind the court, however, the prosecution has the burden to prove
each criterion by a preponderance of the evidence. If the criterion was equal, the
prosecution did not satisfy its burden.
23
L.R. argues his performance demonstrated “[h]is potential to grow and
mature is boundless[]” and there was plenty of time for him to rehabilitate before the
juvenile court’s jurisdiction terminated. He cites to the specific programming that he
states will help rehabilitate him. L.R. claims he “moved away from gang involvement”
and the record includes no evidence “would be oppositional, defiant, anti-social or
recalcitrant.”
The OCDA argues the juvenile court erred because the following evidence
the court did not mention demonstrated L.R. could not be rehabilitated before the juvenile
court’s jurisdiction terminated: there was no evidence L.R. left the gang; while in
juvenile hall he got a gang tattoo and displayed gang hand signs in church; he received
6
31 disciplinary actions of various degrees while he was in custody; L.R. would likely
receive 18 months of rehabilitation for a crime that required between 47 and 70 months
of rehabilitation; DJJ did not have the gang intervention programming he required; and
Rogers opined “there should be a careful plan in place . . . with particular focus upon
substance abuse treatment.”
The parties ask this court to reweigh the evidence and the court’s
determination and reach a different result on this criterion. That is not our role. (Jones,
supra, 18 Cal.4th at p. 681.) Substantial evidence supported the court’s conclusion this
criterion was equal.
III. Previous Delinquent History
The third criterion is the minor’s previous delinquent history.
(§ 707(a)(3)(C)(i).) Section 707(a)(3)(C)(ii) specifies that when evaluating this criterion,
“the juvenile court may give weight to any relevant factor, including, but not limited to,
the seriousness of the minor’s previous delinquent history and the effect of the minor’s
6
In his report, Yepez “credit[ed]” L.R. for his “minimal” in-custody
disciplinary history. We do not share Yepez’s characterization of L.R.’s disciplinary
history. Our recitation of his major disciplinary violations speak for themselves.
24
family and community environment and childhood trauma on the minor’s previous
delinquent behavior.” The juvenile court found this factor weighed in favor of suitability.
The record is void of any evidence L.R. previously suffered true findings in
the juvenile court. The juvenile court explained that although L.R. exercised poor
judgment in school and by associating with gang members, he did not suffer any charges.
The court was not persuaded by the uncharged conduct evidence because Menchaca got a
plea deal in exchange for his testimony.
The OCDA, however, asserts the uncharged conduct evidence was evidence
of his delinquent history and supported transfer to criminal court. In essence, the OCDA
asks this court to reweigh the evidence and the court’s determination and reach a different
result. Again, that is not our role. (Jones, supra, 18 Cal.4th at p. 681.) Substantial
evidence supports the court’s conclusion this criterion weighed in favor of retention.
IV. Previous Attempts to Rehabilitate
The fourth criterion is the “[s]uccess of previous attempts by the juvenile
court to rehabilitate the minor.” (§ 707(a)(3)(D)(i).) Section 707(a)(3)(D)(ii) specifies
that when evaluating this criterion, “the juvenile court may give weight to any relevant
factor, including, but not limited to, the adequacy of the services previously provided to
address the minor’s needs.” The juvenile court found this factor weighed in favor of
suitability.
Again, there was no evidence L.R. previously suffered true findings in the
juvenile court, and thus, the juvenile court had made no previous efforts to rehabilitate
him. The juvenile court explained that although L.R. refused to participate in substance
abuse counseling, the juvenile court had not made any efforts to rehabilitate him. The
OCDA does not challenge the court’s conclusion. Substantial evidence supports the
court’s conclusion this criterion weighed in favor of retention.
25
V. Circumstances and Gravity of the Offense
The fifth criterion is the circumstances and gravity of the offense alleged to
have been committed by the minor. (§ 707(a)(3)(E)(i).) Section 707(a)(3)(E)(ii)
specifies that when evaluating this criterion, “the juvenile court may give weight to any
relevant factor, including but not limited to, the actual behavior of the person, the mental
state of the person, the person’s degree of involvement in the crime, the level of harm
actually caused by the person, and the person’s mental and emotional development.”
Section 707 “does not exclude juveniles charged with murder from consideration for
treatment in juvenile court.” (J.N., supra, 23 Cal.App.5th at p. 724.) The juvenile court
found this factor weighed in favor of unsuitability.
L.R. initially asserts the juvenile court erred because section 707 does not
exclude juveniles charged with murder from consideration for treatment in juvenile court
and the court did not identify any circumstances that was more grave than any other
homicide. But curiously he states the following: “Admittedly, there was some evidence
supporting the court’s conclusion that criterion five weighed against [him] remaining in
juvenile court. . . . The record contains substantial evidence showing one of the five
criteria – gravity and the circumstances of the offense – weighed in favor of adult court,
but that the remaining criteria weighed in favor of juvenile court.” L.R. first challenges
the court’s conclusion then seems to concede the court properly weighed this criterion
required transfer. Nevertheless, we will not accept his apparent concession but instead
address the merits.
The record includes evidence L.R. knowingly participated in a gang
confrontation where he intentionally shot and killed two people and prepared to commit
more violence. L.R. armed himself with a loaded gun before walking with his fellow
gang members. During their midnight walk, Menchaca saw Martinez, a rival gang
member, and created a distraction. When Martinez insulted them, L.R. shot the rival
gang member one time. He then turned the gun on Miller, who did not participate in the
26
encounter, and shot her preventing her from aiding Martinez. L.R. returned the gun to
the rival gang member and shot a few more times to ensure he was dead. One can only
surmise what L.R. was thinking. But one can reasonably conclude that after eliminating
a rival gang member, he disabled the gang member’s companion, and then ensured the
gang member was dead, evincing a calculated thinking.
In addressing this criterion, the juvenile court addressed each of the
relevant characteristics. The court noted the evidence demonstrated L.R. did not suffer
any significant trauma that would mitigate his conduct. The court concluded L.R.’s
personal conduct of intentionally shooting two people resulting in their deaths was
sufficiently grave to warrant transferring him to criminal court. Substantial evidence
supports the court’s conclusion. We recognize a juvenile who commits murder is not
prevented from benefitting from the juvenile court’s rehabilitation efforts. However, the
court’s conclusion based on the circumstances of these two gang-related murders was not
beyond the bounds of reason. Contrary to L.R.’s claim, this was not a garden variety
murder. He committed two murders that made him eligible for the death penalty.
(§ 190.2, subd. (a)(3).)
L.R. relies on J.N., supra, 23 Cal.App.5th 706, to argue the court erred by
ordering him transferred to criminal court. In J.N., the juvenile court’s order specified
three section 707 criteria weighed against transfer to criminal court and two section 707
criteria weighed in favor of transfer to criminal court. (J.N., supra, 23 Cal.App.5th at
p. 715.) The J.N. court concluded substantial evidence supported the court’s findings as
to the three section 707 criterion that weighed against transfer to criminal court. But it
concluded no substantial evidence supported the court’s findings the other two criteria
weighed in favor of transfer to criminal court. One of those factors was the
circumstances and gravity of the offense. As to that factor, J.N. was not the shooter and
he was shaken by the killing. (J.N., supra, 23 Cal.App.5th at p. 724.) The J.N. court thus
27
concluded the juvenile court abused its discretion by ordering him transferred to criminal
court. (Ibid.)
L.R. acknowledges that J.N. was not the shooter but he claims the facts “are
not so distinguishable” as to limit its applicability here. The factual distinction makes all
the difference. L.R. was the shooter, and he killed two people. J.N. is of no help to L.R.
Substantial evidence supported the juvenile court’s conclusion the OCDA proved by a
preponderance of the evidence the circumstances and gravity of the offenses weighed in
favor of transfer.
VI. Evaluative Process
The juvenile court made express findings as to which criterion weighed in
favor of retention, transfer, or were neutral. The court concluded the first and fifth
criteria supported transfer. But it found the third and fourth criteria supported retention.
That left the second criteria, which it opined neither supported transfer nor retention. The
court’s ruling effectively ended evenly balanced. The court concluded “in totality” the
prosecution satisfied its burden of proving L.R. was not suitable for juvenile court by a
preponderance of the evidence.
In doing so, however, the juvenile court failed to perform an important part
of the evaluative process by articulating how it cumulatively weighed the different
statutory criterion and how that weighing affected its decision to transfer L.R. to the
criminal court. In the future, the court should perform this step to provide the appellate
court with a more complete record for review.
Nevertheless, we are mindful section 707 does not require the juvenile
court to give equal weight to each of the factors. Additionally, a court does not
necessarily abuse its discretion by finding one criterion outweighed the other criteria.
(C.S., supra, 29 Cal.App.5th at p. 1035.) Based on juvenile court’s comments we can
reasonably conclude the first criterion (criminal sophistication) and the fifth criterion
(circumstances and gravity of the offense) outweighed the other criterion. Based on our
28
conclusion substantial evidence supported the court’s findings on each criterion, the court
did not abuse its discretion by ordering L.R. transferred to criminal court.
DISPOSITION
The petition is denied.
O’LEARY, P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
29