In re E.P. ( 2023 )

Filed 3/17/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re E.P., a Person Coming 2d Juv. No. B319738
Under the Juvenile Court Law. (Super. Ct. No. 21JV00138)
(Santa Barbara County)
THE PEOPLE,
Plaintiff and Respondent,
v.
E.P.,
Defendant and Appellant.
The Greek philosopher Heraclitus observed that “nothing
endures but change.” The California legislature must have had
Heraclitus in mind when it changed a variety of laws in the penal
and juvenile codes.
Here we consider changes in the law concerning fitness
hearings to determine whether offenses committed by juveniles
belong in juvenile or adult court.
A juvenile wardship petition alleged against E.P. alleged
two counts of murder (Pen. Code, § 187, subd. (a)), two counts of
attempted murder (id., §§ 664, 187, subd. (a)) and one count of
street terrorism (id., § 186.22, subd. (a).)
The juvenile court held a fitness hearing pursuant to
Welfare and Institutions Code 1 section 707. The court ordered
the case transferred to criminal court. Since the hearing, section
707 has been amended. (Stats. 2022, ch. 330, § 1.) We reverse
and remand for a new fitness hearing pursuant to section 707 as
amended. The Attorney General agrees.
FACTS
E.P. was 17 years old at the time of the incident. He was a
member of the Carpas street gang. The gang’s territory is in
Carpinteria. Two of E.P.’s family members, Angel V., and
Oscar T., are also members of the Carpas gang. E.P.’s uncle, who
lives across the street from E.P., is a Carpas gang leader.
Assault of March 6, 2020
On March 6, 2020, members of the Eastside Santa Barbara
street gang (Eastside gang) assaulted members of the Carpas
gang at a market in Goleta. The Eastside gang used blunt
instruments in the assault.
Later that night Eastside gang members, using the same
blunt instruments, chased some Carpas gang members into a
market in Carpinteria. Video from the market showed E.P. as
one of the victims and R.R. as one of the assailants.
Shooting on January 3, 2021
On the evening of January 3, 2021, M.S. was with three
other Eastside gang members, including R.R., on Liberty Street
in Eastside territory. M.S. saw a blue jeep go by. The driver was
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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wearing a cap with a “C” on it, indicating membership in the
Carpas gang.
Shortly thereafter, M.S. noticed two men approaching on
foot from the direction where the jeep had gone. Both men were
wearing caps with a “C” on them. One of the men produced a gun
and shot four Eastside members, killing two and wounding M.S.
and R.R.
A woman walking on Liberty Street heard gunshots and
saw two men run by her. One of the men was holding a gun “that
got bigger toward the bottom.” The description matched a gun
with an extended magazine.
Investigation
The police determined that Angel V. owned the blue jeep
used in the shooting. They also recovered the gun used in the
shooting and traced it back to Angel V. Angel V.’s social media
showed him holding what appeared to be the gun used in the
shooting with an extended magazine. A gun with an extended
magazine would not be easy to conceal.
E.P.’s social media showed him in gang attire. It also
showed him wearing a bullet proof vest. E.P.’s iCloud account
contained the following verse: “This, my consequences as a young
hog, I was right there when the neighborhood call, through the
gun play and the violent fist for all. Even with a black eye, boy
had to stand tall.” A Snapchat image saved on E.P.’s cell phone
said, “Shout out my shooters.”
E.P.’s Interview
Detective Andre Miller interviewed E.P. after he was
arrested. E.P. initially stated that he was at home on the
evening of January 3, 2021. He said Angel V. and Oscar T. were
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also home. E.P. repeatedly denied he was involved in the
shooting.
Later E.P. admitted that he drove the jeep on January 3,
2021, and that Angel V. and Oscar T. were with him. They told
him to drive in circles, but they did not tell him what was about
to happen. He saw a group of Eastsiders as he drove down
Liberty Street. He expected fighting but he did not know
Angel V. and Oscar T. had a gun with them. He admitted that
he knew Angel V. owned guns. He claimed he learned of the
shooting when someone told him after he got home.
E.P. said he did things for his family out of loyalty. He said
if he got into a situation, the first person he would call is
Angel V., the second would be his uncle.
Ruling
E.P. did not request that the juvenile court find whether
the prosecution established a prima facie case.
In ruling that E.P. was not fit to be treated under the
juvenile law, the court considered the five factors listed in former
section 707, subdivision (a)(3)(A)-(E).
The juvenile court found:
First, E.P. exhibited criminal sophistication. The offenses
involved planning and purpose. E.P. was almost 18 years old at
the time. He is intellectually mature and thinks before he acts.
He was not under the influence of drugs.
Second, E.P. can be rehabilitated prior to the expiration of
the juvenile court’s jurisdiction. E.P. is mature and is at the end
of the intellectual scale. Given the time remaining, he can be
rehabilitated.
Third, E.P. has no serious delinquent history. His
delinquent history is limited to some acting out at school.
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Fourth, E.P. has not needed previous attempts at
rehabilitation.
Fifth, as to the gravity of the offense alleged in the petition,
every murder is a serious offense. Two young lives were ended,
and others were injured. The court stated: “I don’t believe [E.P.’s]
statement that he did not know what was going to happen. What
do you assume is going to happen if you drive two people to a
rival gang’s central location[?]”
The juvenile court stated that some factors weigh in favor
of retaining juvenile court jurisdiction and other factors weigh in
favor of a transfer to criminal court. Given the totality of the
circumstances, however, the court concluded the matter should
be transferred to criminal court.
DISCUSSION
I.
Prima Facie Case
E.P. contends the prosecution did not establish a prima
facie case of murder or attempted murder.
California Rules of Court, rule 5.766 governs the transfer of
jurisdiction from juvenile to criminal court. Subdivision (c) of the
rule states: “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
. . . .”
Here E.P. has forfeited the claim because he did not make
the required motion. E.P. argues that his counsel provided
ineffective assistance by failing to make the motion. But the
juvenile court’s comments made it clear that it believed the
prosecution established a prima facie case. E.P. admitted he
drove Angel V. and Oscar T. into the Eastside gang’s territory.
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The only question was whether he knew that there would be a
shooting. E.P. claimed he thought there would only be a fight.
The juvenile court stated it did not believe him. To prevail on a
claim of ineffective assistance of counsel the defendant must
show, but for counsel’s error, there is a reasonable probability the
defendant would have obtained a more favorable result.
(In re Wilson (1992) 3 Cal.4th 945, 950.) E.P. has failed to make
that showing.
In any event, there is sufficient evidence of a prima facie
case for murder. The standard is reasonable and probable cause.
(Rene C. v. Superior Court (2006) 138 Cal.App.4th 1, 4, fn. 2.) To
meet the standard, there is no need to prove guilt; a “‘“strong
suspicion of . . . guilt”’” is all that is required. (Ibid.) That
standard has been more than met here.
First, E.P. knew he was driving Angel V. and Oscar T. into
Eastside territory to confront members of the gang. E.P.,
Angel V. and Oscar T. were more than members of the same
gang, they were members of the same family. E.P. was
personally humiliated in the assault on March 6, 2020, when
Eastside gang members chased Carpas gang members into a
market. There is every reason to believe that E.P. knew from the
beginning that Angel V. and Oscar T. intended to shoot Eastside
gang members.
Second, E.P. drove by four Eastside gang members
including R.R., who had been involved in chasing E.P. into a
market in Carpinteria. When E.P. dropped off Angel V. and
Oscar T., he would not expect that two Carpas gang members
were going to take on four Eastside gang members in Eastside
territory using only their fists. E.P. knew Angel V. owned guns.
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Third, shortly after the shooting, a woman saw Angel V.
carrying a handgun with an extended clip. It is reasonable to
conclude that such a gun would not be easy to conceal and
that E.P. was aware that Angel V. was armed when they
departed Carpinteria for Eastside territory.
Finally, E.P. bragged in verse about his participation in the
shooting. He said, “I was right there when the neighborhood call,
through the gun play and the violent fist for all.” It is reasonable
to conclude that E.P. was not bragging about being an unwitting
dupe in the shooting of rival gang members.
II.
Transfer to Criminal Court
Prior Statute
At the time of the fitness hearing, section 707 required the
prosecution to prove by a preponderance of the evidence that the
case should be transferred to a criminal court. (Cal. Rules of
Court, rule 5.770(a).) In making that decision the juvenile court
was required to consider five criteria: 1) the degree of criminal
sophistication, 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) the 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. (Former § 707, subd.
(a)(3)(A)-(E).) If the juvenile court ordered transfer, it was
required to state the basis for its decision in the order (Ibid.)
Here, in ordering transfer, the juvenile court determined that the
degree of criminal sophistication and the circumstances and
gravity of the alleged offenses outweigh positive findings on the
other factors.
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Amended Statute
Effective January 1, 2023, section 707, subdivision (a)(3)
was amended in part as follows: “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 rehabilitation while under the jurisdiction of the
juvenile court. In making its decision, the court shall consider
the criteria specified in subparagraphs (A) to (E), inclusive. If the
court orders a transfer of jurisdiction, the court shall recite the
basis for its decision in an order entered upon the minutes, which
shall include the reasons supporting the court’s finding that the
minor is not amenable to rehabilitation while under the
jurisdiction of the juvenile court.” (Stats. 2022, ch. 330, § 1.) The
amendment changes section 707 in a number of ways.
First, in the previous version of section 707, the
prosecution’s burden was by a preponderance of the evidence.
Under the amendment the prosecution’s burden is increased to
clear and convincing evidence.
Second, under the previous version whether the minor is
amenable to rehabilitation while under the jurisdiction of the
juvenile court was one of five factors for the court to consider in
determining whether the case should be transferred to criminal
court. The amendment states it as the ultimate question for the
court to decide. Nevertheless, in deciding that question, the
amendment requires the court to consider the same five factors
listed in the previous version.
Finally, the previous version required that if the juvenile
court orders a transfer, it shall recite the basis for its decision in
the order. The amended statute requires the court to not only
recite the basis for its decision, but also the reasons supporting
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the court’s finding that the minor is not amenable to
rehabilitation while under the jurisdiction of the juvenile court.
The parties agree that because the case is not final, E.P. is
entitled to the benefit of the amended statute. (In re Estrada
(1965) 63 Cal.2d 740.) The parties disagree, however, on whether
the matter should be remanded to the juvenile court with
instructions to deny the transfer petition, or whether the
prosecution is entitled to a new hearing on the question of
transfer.
Under the amended statute the ultimate finding is whether
the minor is amenable to rehabilitation while under the
jurisdiction of the juvenile court. E.P. points out that the juvenile
court found he is amenable to rehabilitation while under the
jurisdiction of the juvenile court. He further points out that at
the time of the shooting the prosecution’s burden was only to a
preponderance of the evidence.
But at the time of E.P.’s fitness hearing the amenability of
the minor to rehabilitation was a factor separate from the other
four factors, and the juvenile court treated it as such. The court
cited only E.P.’s maturity and his intellect as favoring its finding
of amenability.
The amended section 707 requires the juvenile court to
consider all five factors together in determining whether the
minor is amenable to rehabilitation. Under the amended statute,
like the previous version, the court has the discretion to conclude
that one or more of the five factors predominate so as to
determine the result, even though some or all of the other factors
might point to a different result. The prosecution is entitled to a
new fitness hearing so that the court can determine, considering
all five factors, whether E.P. is amenable to treatment. Nothing
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in this opinion shall be construed to indicate how the court
should rule. 2
DISPOSITION
The matter is reversed and remanded for a new fitness
hearing to be conducted pursuant to section 707 as amended.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
2 E.P.’s request for a prima facie hearing is denied.
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Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Laini Millar Melnick, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael C. Keller and John Yang, Deputy
Attorneys General, for Plaintiff and Respondent.
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