Kevin People v. Super. Ct. ( 2020 )

Filed 11/6/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
KEVIN P.,
Petitioner,
v.
THE SUPERIOR COURT OF A159680
CONTRA COSTA COUNTY,
(Contra Costa County
Respondent;
Super. Ct. Nos. J18-00823,
THE PEOPLE, 02-331373-1)
Real Party in Interest.
Kevin P. was charged in juvenile court with a murder he allegedly
committed at age 17, and the prosecution moved to transfer him to criminal
court under Welfare and Institutions Code1 section 707, subdivision (a)(1).
During a contested hearing lasting several days, the juvenile court was
presented with a wealth of evidence demonstrating both the heinousness of
the crime and the absence of anything in Kevin’s history that would suggest
he was capable of it. He was raised by a loving family, had no prior criminal
history, suffered little past trauma, and had no significant psychological or
behavioral issues. And after his arrest, his behavior was exemplary while he
was housed at juvenile hall.
All further statutory references are to the Welfare and Institutions
1
Code unless otherwise noted.
1
Nevertheless, the juvenile court concluded that Kevin was unfit for the
juvenile system and granted the prosecution’s motion to transfer him to
criminal court. Although the court acknowledged there was “a certain
tragedy” in its ruling given Kevin’s generally positive history outside the
context of the charged crime, it determined that the decision was warranted
based on three of the section 707 criteria—the circumstances and the gravity
of the offense, the degree of criminal sophistication shown, and the
improbability of Kevin’s rehabilitation before the expiration of juvenile court
jurisdiction.
Kevin filed a petition for an extraordinary writ in this court to overturn
the juvenile court’s transfer ruling. He claims that the juvenile court abused
its discretion because there was insufficient evidence to support its findings
and it misapplied the law in determining that he could not be rehabilitated
before juvenile jurisdiction expired. We conclude the court’s findings
regarding section 707’s gravity and criminal-sophistication criteria are
supported by substantial evidence. But we also conclude that the court
improperly evaluated section 707’s rehabilitation criterion, which it deemed
its “most significant” consideration. In doing so, we hold that a court cannot
determine a juvenile’s rehabilitative needs based solely on the gravity of the
offense, and the standard seven-year parole consideration period that applies
to juveniles committed to the Department of Juvenile Justice (DJJ)2 for
murder does not establish a presumptive rehabilitation period. Accordingly,
2 Under juvenile justice realignment legislation that went into effect on
September 30, 2020, a process to close DJJ and transfer responsibility for
youth wards to county governments will begin on July 1, 2021. (§ 736.5,
subd. (a), added by Stats. 2020, ch. 337, § 30.) Under the new law, a ward
cannot be committed to DJJ after that date unless a transfer motion was filed
in his or her case, in which case a DJJ commitment may be made “pending
[DJJ’s] final closure.” (§ 736.5, subds. (b)–(c).)
2
we grant the writ petition and remand the matter to the juvenile court to
reconsider its transfer ruling.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Killing and the Police Investigation
On the morning of July 19, 2018, 38-year-old Kishana Harley was
found dead in her Richmond apartment’s living room. She had been stabbed
38 times, mostly in her neck, shoulder, and upper back, as well as in the side
of her face and the back of her head. She also had what appeared to be
defensive wounds on both hands.
Harley was facedown with a knife handle resting on her back, and a
bloody knife blade was on the floor nearby. The handle and blade appeared
to go together to form “a common steak knife.” A butcher knife with a broken
tip and blood on it was in the kitchen sink, and there was blood on the
counter next to the sink. Blood was also found in other places throughout the
apartment, including in a bathroom. In addition, a “napkin or paper towel
wrapped in blue tape” in a “long” shape, like a “handle of some sort,” was in
the hallway.
When a police officer arrived at the apartment, she observed blood
smeared around the front door, and a glass sliding door to the apartment’s
patio was slightly open. The gas burners on the stove were on, and there was
a “black charred substance” around Harley’s head. Additional evidence in the
apartment also demonstrated attempts to start a fire, including burned
napkins on a couch. Harley’s shirt had bleach stains on it, and there was a
trail of blue toilet-bowl cleaner from the living room to the master bedroom.
Several items were on the dining table—including a laptop, a purse, and the
end of a marijuana joint—and “the whole table and its contents on top were
3
all doused in an unknown substance.” Harley’s primary cell phone was
missing, and her Mercedes was not in the complex’s parking lot.
Surveillance footage from the apartment complex showed Harley enter
her apartment at around 8:35 p.m. on July 16, 2018, three nights before her
body was found. About five minutes later, a male suspect later determined to
be Kevin entered the apartment, after initially turning away from it when
two other people appeared. Over an hour later, around 10:00 p.m., Kevin left
the apartment, and around 11:35 p.m., Harley’s Mercedes was driven out of
the complex’s parking lot. Kevin re-entered Harley’s apartment carrying
white bags at around 12:05 a.m., left with the bags a few minutes later, and
then returned to the apartment and exited it within a few more minutes.
Harley’s cell phone records showed that the last call Harley received
was at 8:33 p.m. on July 16, a few minutes before Kevin initially entered her
apartment. The same number was used to call her 10 times between July 1
and July 16, with no conversation lasting more than three minutes. The
number belonged to Kevin’s mother, whose cell phone records listed a San
Francisco address that was three blocks from where Harley’s car was later
located, about two weeks after Harley’s death. As it turned out, Kevin’s
family originally lived in San Francisco before moving to Richmond when
Kevin was 12 years old, and he continued to attend high school in San
Francisco and spent most of his time there.
Based on the cell phone records and a recording of a 2016 encounter
with police at his mother’s house that showed Kevin wearing black-rimmed
glasses similar to those worn by the suspect in the surveillance footage, a
warrant issued to obtain his DNA. Forensic testing tended to suggest that a
mixture of Kevin’s and Harley’s DNA was on both the blade and the handle of
the butcher knife found in the kitchen sink, with Kevin as the major
4
contributor of the DNA on the blade and Harley as the major contributor of
the DNA on the handle. Kevin’s DNA was on the kitchen counter and in the
bathroom, but it was not on either the handle or blade of the steak knife
located by Harley’s body, the latter of which had female DNA on it. The
evidence also tended to suggest that the blood in the bathroom was Harley’s.
During a subsequent search of Kevin’s home, the police discovered a
butcher block that contained other knives with handles matching the knife
handle found on Harley’s body, as well as paper towels and painter’s tape
matching the materials used to make the tape-wrapped object found in
Harley’s hallway. The police also found a pair of white Nike sneakers, which
appeared similar to “bright white shoes” worn by the suspect in the
surveillance footage. Both the sole of one of the shoes and the box in which
they were found had bloodstains on them.
During his interrogation by police, Kevin initially denied knowing
Harley or ever being inside her apartment, but he eventually admitted that
he killed her. He reported that he originally met her at a gas station a few
weeks before her death and asked her to buy tobacco for him. There was also
evidence that the two smoked marijuana together, and some of Kevin’s family
members thought they had seen Harley’s car around their house earlier in
July. According to Kevin, on the night in question, he went to Harley’s
apartment to smoke marijuana with her.
Although Kevin changed his story in several respects throughout the
interrogation, he maintained that he stabbed Harley in self-defense after she
attacked him with a knife. He also claimed that at one point she stabbed
herself when he swung a door open, hitting her. He eventually admitted that
he brought a knife with him that night, although he stated that it was for
protection because Harley lived in a dangerous neighborhood. He also stated
5
that the tape-wrapped paper towel was a type of scabbard to cover the blade
so he would not cut himself.
As to his actions after the killing, Kevin admitted that he tried to burn
Harley’s body because Harley “was starting to stink” and “[s]he was a fake.”
He also acknowledged turning on the stove burners and bringing bags into
the apartment, but he claimed he could not remember his reason for either
action.
B. Kevin’s Background and Performance in Custody
Kevin is the son of Central American immigrants and grew up in San
Francisco’s Mission District until moving to Richmond. He has two older
half-brothers and a younger sister. Family members described Kevin as
affectionate, loving, calm, and respectful. He was especially good with his
brother’s and his cousin’s very young children, “treat[ing] them with care and
tenderness.”
Kevin and his family members uniformly described his home as “a
happy place” without any physical or sexual abuse, domestic violence, or
substance abuse. Aside from his parents’ separation when he was in
elementary school, Kevin did not describe any significant traumatic events
from childhood, and his father was still involved in his life. Kevin’s family
was supportive after his arrest, and his parents regularly visited him in
juvenile hall.
For about a year before the offense, Kevin had a paid position working
four hours a day at an afterschool program for middle school students run by
the Boys & Girls Club of San Francisco. His job responsibilities included
facilitating activities and helping with homework, and he connected well with
the children and was concerned about them. Indeed, he would routinely stay
late at the program even though he was not compensated for those hours.
6
His co-workers were “very impressed” with his work ethic, responsibility, and
respectfulness to other staff, and he won “Youth of the Month” during his
employment.
Kevin had no criminal history or arrests before this case. He engaged
in some misbehavior, including setting off firecrackers at school and forcing
open a bedroom door to retrieve his cell phone after his mother confiscated it,
but he had no record of mental illness or any “aggressive or predatory
behavior” toward others. Both the forensic social worker and forensic
psychologist who evaluated Kevin for the transfer hearing found it significant
that he had no gang involvement, despite growing up as a Latino in the
Mission District.3 Kevin admitted to smoking marijuana regularly, but there
were no indications of any other type of substance abuse.
Kevin’s school records suggested both that he was “highly intelligent”
and that he might have “a processing problem” for which a recommended
special-education evaluation never took place. Before his arrest, his high
school grades were generally poor, primarily due to truancy. After Kevin
entered juvenile hall, however, his grades showed “[v]ast improvement in
most areas.” Indeed, he won several certificates for his scholastic
performance, which was described as “pretty exemplary.” He eventually
graduated from high school and then continued to take classes.
Kevin also received awards for good citizenship while in juvenile hall.
He was engaged in therapy and group activities, and he had positive
interactions with juvenile hall staff. Although he fought with two other boys
3Evidence in the record indicates that one of Kevin’s brothers was
involved in a gang and had several arrests, although these occurred after the
brother moved out of the family home.
7
early in his stay, he ultimately befriended both, and overall he was doing
extremely well in custody.
The forensic psychologist’s evaluation showed Kevin had average
intellectual ability with a possible learning disability related to mathematics,
good executive functioning, and no neurocognitive impairments. He did not
have conduct disorder, the youth corollary of antisocial personality disorder.
It was possible that Kevin had a delusional disorder, which “is a condition
where one develops beliefs that have no basis in reality,” but the forensic
psychologist could not definitively diagnose it because he was directed not to
question Kevin about the offense. The psychologist opined, and Kevin’s
family members and acquaintances agreed, that the “offense conduct, as
charged, is completely out of character.”
C. Procedural History
In September 2018, the Contra Costa County District Attorney filed a
petition under section 602 alleging that Kevin murdered Harley. The
petition also alleged that Kevin used a deadly and dangerous weapon, a
knife, during the murder, as well as the special circumstance that the murder
was committed during a burglary or attempted burglary.4 The prosecution
contemporaneously moved to transfer the matter to criminal court under
section 707, subdivision (a)(1), and Kevin requested a hearing on whether the
prosecution could make a prima facie showing that he committed the alleged
offense.
4The allegations were made under Penal Code sections 187,
subdivision (a) (murder), 12022, subdivision (b)(1) (weapon use), and 190.2,
subdivision (a)(17) (burglary special circumstance).
8
A combined prima facie/transfer hearing was held over several sessions
during the summer and fall of 2019.5 Although the prosecution presented
testimony from several witnesses about the underlying crime, it presented no
testimony about other transfer-related issues from any witness except for the
probation officer who prepared a transfer report recommending Kevin be
transferred to criminal court. Kevin presented testimony from four
witnesses: the forensic social worker and forensic psychologist who evaluated
him, his supervisor at the Boys & Girls Club afterschool program, and a DJJ
parole agent. Except for the probation officer’s testimony and report, the
prosecution did not present any evidence to rebut Kevin’s showing of his
likelihood of being rehabilitated, and the prosecution did not dispute his
generally positive history. We discuss the evidence both sides presented in
more detail below, in connection with the relevant section 707 criteria.
The juvenile court found that the prosecution established a prima facie
case to support the murder charge and that Kevin was not suitable for
treatment under the juvenile court system. The court concluded that while
two criteria under section 707 supported Kevin’s retention in juvenile court—
his lack of a delinquent history and the consequent lack of previous attempts
to rehabilitate him under the juvenile system—the remaining three criteria
supported a finding of unfitness. First, the court found that Kevin exhibited
some degree of criminal sophistication, because in addition to trying to cover
up the crime, he was not influenced by anyone else to kill Harley and he
appreciated the wrongfulness of his behavior. Second, the court found that
the crime presented “about as grave of circumstances that could exist,” since
5The parties stipulated that the evidence presented for purposes of the
prima facie hearing could also be considered for purposes of the transfer
hearing.
9
it was a “gri[s]ly, gri[s]ly violent murder” that appeared to be premeditated
and Kevin’s attempts to set a fire endangered the lives of others at the
apartment complex. Finally, as to the criterion “most significant” to its
decision, the court found that even though Kevin had “done well in [a]
structured setting” in juvenile hall, it was unclear that he could be
rehabilitated in DJJ before he turned 25.
Accordingly, in November 2019, the juvenile court ordered the matter
transferred to criminal court. Two months later, a criminal complaint was
filed charging Kevin with same count and allegations brought in the juvenile
petition, with the addition of a special circumstance of lying in wait.6
In February 2020, Kevin filed a petition for a writ of mandate in this
court to compel the juvenile court to vacate its order and enter an order
denying the transfer motion. The following month, we summarily denied the
petition, and Kevin petitioned for review in the California Supreme Court.
On June 10, 2020, the Supreme Court granted review and transferred the
matter to this court with directions to vacate our decision denying the writ
petition and to issue an order to show cause, and on June 22 we did as
directed. The district attorney filed a return, Kevin filed a reply, and the
Pacific Juvenile Defender Center and Independent Juvenile Defender
Program, Los Angeles County Bar Association, filed an amicus curiae brief on
Kevin’s behalf. With this additional briefing in mind, we turn to discuss the
petition’s merits.
6 The lying-in-wait special circumstance was alleged under Penal Code
section 190.2, subdivision (a)(15). In addition, the burglary special
circumstance alleged more specifically that Kevin committed murder while
“engaged in immediate flight” after committing or attempting to commit
burglary.
10
II.
DISCUSSION
A. General Legal Standards
“Historically, California required a judicial determination of unfitness
for juvenile court before a minor could be prosecuted in adult court,” and
“[s]ince 1975, the procedural requirements for fitness hearings (also called
transfer hearings) have been established by section 707.” (D.W. v. Superior
Court (2019) 43 Cal.App.5th 109, 115 (D.W.).) In March 2000, the electorate
passed Proposition 21, under which “the People were authorized in specified
circumstances to file a criminal action against a juvenile directly in adult
court.” (D.W., at p. 116.) Sixteen years later, however, the electorate passed
Proposition 57, which had a stated purpose of “ ‘[s]topping the revolving door
of crime by emphasizing rehabilitation, especially for juveniles.’ ” (People v.
Superior Court (Alexander C.) (2019) 34 Cal.App.5th 994, 1000, quoting Voter
Information Guide, Gen. Elec. (Nov. 8, 2016), text of Prop. 57, § 2, p. 141.)
“To increase the number of minors in the juvenile system, Proposition 57
eliminated Proposition 21’s system of direct filing in criminal court” and
“amended section 707 to require a transfer hearing before a juvenile can be
prosecuted in adult court to determine whether the minor can be
rehabilitated in juvenile court,” effectively “return[ing] California to the
historical rule.” (Alexander C., at p. 1000; D.W., at p. 116; J.N. v. Superior
Court (2018) 23 Cal.App.5th 706, 711 (J.N.).)
Specifically, the law now provides that “[w]hen a minor has been
charged in the juvenile court with any felony allegedly committed when he or
she was 16 years of age or older”—as Kevin was—“the prosecutor ‘may make
a motion to transfer the minor from juvenile court to a court of criminal
jurisdiction.’ ” (J.N., supra, 23 Cal.App.5th at p. 711, quoting § 707,
11
subd. (a)(1); Cal. Rules of Court, rule 5.766(a)(2).)7 Upon receiving a transfer
motion, the juvenile court is required to “order the probation officer to submit
a report on the behavioral patterns and social history of the minor.” (§ 707,
subd. (a)(1).) In addition to the transfer report, the court may consider “any
other relevant evidence that the [prosecutor] or the minor may wish to
submit.” (§ 707, subd. (a)(3).) “The prosecution bears the burden of
establishing by a preponderance of the evidence [that] the minor is not a
suitable candidate for treatment under the juvenile court system.” (J.N., at
p. 715; rule 5.770(a).) “Whether the youth committed the act alleged in the
petition is not the issue in such a determination; the sole question is whether
he [or she] would be amenable to treatment in the event that he [or she] is
ultimately adjudged a ward of the court.”8 (People v. Chi Ko Wong (1976)
18 Cal.3d 698, 716 (Chi Ko Wong).)
In ruling on a transfer motion, the juvenile court must consider five
criteria under section 707: (1) “[t]he degree of criminal sophistication
exhibited by the minor”; (2) “[w]hether the minor can be rehabilitated prior to
the expiration of the juvenile court’s jurisdiction”; (3) “[t]he minor’s previous
delinquent history”; (4) the “[s]uccess of previous attempts by the juvenile
7 All further rule references are to the California Rules of Court.
8 In response to a transfer motion, the minor may “ ‘challenge[] the
sufficiency of the evidence establishing that he [or she] committed the alleged
offense[],’ ” in which case “the People must ‘make a prima facie showing that
the minor committed the crime[].’ ” (D.W., supra, 43 Cal.App.5th at p. 116;
Edsel P. v. Superior Court (1985) 165 Cal.App.3d 763, 784; rule 5.766(c).)
The juvenile court must find the prosecution has made the required prima
facie showing, which is “generally equivalent to ‘reasonable and probable
cause,’ ” before it rules on whether the minor is fit for juvenile treatment.
(D.W., at pp. 116, 118–119.) In practice, a so-called “Edsel P. hearing” may be
held jointly with the transfer hearing (see D.W., at p. 116), as occurred in this
case.
12
court to rehabilitate the minor”; and (5) “[t]he circumstances and gravity of
the offense alleged in the petition to have been committed by the minor.”
(§ 707, subd. (a)(3)(A)–(E); see rule 5.770(b)(2).) “The weight to be given [to]
each of these factors is within the court’s discretion” (D.W., supra,
43 Cal.App.5th at p. 116), as “[n]othing 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.”9 (C.S. v. Superior Court (2018)
29 Cal.App.5th 1009, 1035 (C.S.).)
Appellate review of a juvenile court’s ruling on a motion to transfer a
minor to criminal court is by a petition for an extraordinary writ.
(Rule 5.770(g).) We review such rulings for an abuse of discretion. (J.N.,
supra, 23 Cal.App.5th at p. 714.) The court’s factual findings are reviewed
for substantial evidence, and its legal conclusions are reviewed de novo.
(Ibid.) A decision based on insufficient evidence or the court’s “ ‘erroneous
understanding of applicable law’ ” is subject to reversal. (Id. at pp. 710, 714–
715.)
B. There Was Substantial Evidence that the Crime’s Gravity and
Circumstances Supported Kevin’s Transfer to Criminal Court.
Kevin argues that insufficient evidence supported the juvenile court’s
findings involving “[t]he circumstances and gravity of the offense alleged in
Before Proposition 57, section 707 provided that the decision to
9
transfer a minor to criminal court could “be based on any one or a
combination of the [five] factors.” (Former § 707, subd. (a)(1); see Chi Ko
Wong, supra, 18 Cal.3d at p. 717, fn. 15 [“any one” of five factors “is sufficient
to support a finding of unfitness”].) The current statute directs that a
juvenile court “shall consider” all five criteria but does not specify how many
must support transfer. (§ 707, subd. (a)(3).) Our decision here does not
require us to decide whether it remains true that a court can transfer a minor
even if only one criterion supports doing so.
13
the petition to have been committed by the minor.” (§ 707, subd. (a)(3)(E)(i).)
We disagree.
1. Additional facts
The probation officer believed that the gravity criterion weighed in
favor of Kevin’s transfer to criminal court. She focused on the facts that
Kevin was the only perpetrator of the crime, stabbed Harley 38 times, and
took measures to cover up his involvement that could have seriously
endangered other residents of Harley’s apartment complex. Although
acknowledging that Kevin claimed he acted in self-defense, the probation
officer observed that “the thought and execution of dousing the entire
apartment with a chemical and strategically placing tissue and pillows
around the victim’s body to set her on fire goes beyond self-defense.”
The forensic psychologist, Dr. John Shields, Ph.D., conceptualized this
criterion as addressing not just the seriousness of the crime—which he
agreed was “a very violent, egregious, horrific crime” committed by Kevin
alone—but whether the behavior was “so grave as to impede or preclude”
Kevin’s rehabilitation. Noting that Kevin had made significant progress
toward rehabilitation while in juvenile hall, Dr. Shields determined that the
crime was not “so indicative of [his] character, so grave in nature to suggest
that rehabilitation isn’t possible, or [that] it would be so hampered that it
would take an indefinite period of time.”
In explaining his inability to conclude that the criterion favored
transfer despite the admitted seriousness of Kevin’s criminal behavior,
Dr. Shields highlighted the lack of context for understanding Kevin’s actions.
In particular, he indicated that there were “a number of important, yet
unanswered, . . . questions about precisely what occurred,” including the
14
nature of Kevin and Harley’s relationship and the extent to which Kevin
acted because he was in fear of Harley.
Indeed, other evidence presented at the hearing suggested the killing
was not necessarily a straightforward premeditated murder. In addition to
the physical evidence suggesting Harley also had a knife during the
encounter, evidence of her aggressive character was presented. Harley’s
boyfriend described her as having “mood swings kind of going from . . . zero to
[a] hundred, and getting mad over small things or nothing,” and another
friend indicated she had “significant anger issues” involving a custody
dispute with the father of her two young children. On at least one occasion,
both Harley and the father of those children were arrested as a result of a
domestic violence incident in New York. Finally, and most significantly, less
than two years before her death Harley assaulted her older daughter outside
the daughter’s middle school, punching the child with a belt wrapped around
her knuckles. After the daughter reported that Harley often beat her without
provocation, she was removed from Harley’s custody, and she remained in
foster care at the time of Harley’s death.
The juvenile court concluded that the gravity criterion favored transfer,
specifically rejecting Dr. Shields’s position that “the very nature of the
circumstances and gravity do not impede [Kevin’s] rehabilitation.” Observing
that “[t]here is no question that this was a gri[s]ly, gri[s]ly violent murder”
during which Kevin acted alone, the court found it “pretty clear . . . that this
is about as grave of circumstances that could exist.” The court also found it
“worthy of mentioning under this [criterion]” that Kevin tried to set a fire
after the killing, “because his further actions created a further risk to all of
the residents of [Harley’s] apartment complex.”
15
As to Kevin’s mind state, the juvenile court determined that Kevin
acted with “some type of premeditation or some type of intent to inflict some
type of serious harm to [Harley],” based on the fact he “brought a knife from
his own home to [her] home,” initially backed away from entering her
apartment when other people were nearby, and made other efforts to avoid
detection after committing the crime. The court specifically rejected Kevin’s
claim of self-defense, stating, “His assertion that this [was] self-defense is not
credible. The amount of force that was inflicted upon [Harley] is well beyond
any type of reasonable force that would be necessary to protect yourself and
get yourself to a situation of some type of safety. At one point there was a
reference to a door opening and therefore she stabbed herself. These types of
comments are honestly, they are ludicrous. That’s not how this occurred.”
2. Discussion
The gravity criterion focuses on the offense “ ‘alleged in the petition’ ”
(D.W., supra, 43 Cal.App.5th at p. 119), and like the other statutory criteria,
it is “based on the premise that the minor did, in fact, commit the offense.”
(People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 682 (Jones).) But the
allegation that a minor committed a serious offense, including murder, does
not “automatically require a finding of unfitness.” (Ibid.; J.N., supra,
23 Cal.App.5th at p. 724.) Rather, in evaluating this criterion, a juvenile
court may rely on evidence that, “while not justifying or excusing the crime,
tends to lessen its magnitude” (Jones, at p. 685), “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.” (§ 707,
subd. (a)(3)(E)(ii).)
16
Kevin acknowledges that “the nature of the offense alleged is grave and
serious,” but he argues that there was nevertheless insufficient evidence of
his “actual behavior” and “mental state” during the crime. He points out that
“there were significant unresolved questions as to what occurred, and no
third-party percipient witnesses to the crime,” leaving Dr. Shields unable to
“opine that this criterion weighed in favor of transfer” without “additional
information.” But while a minor’s “actual behavior” and “mental state”
during the crime are among the factors deemed relevant under section 707,
subdivision (a)(3)(E)(ii), there need not be substantial evidence that all of the
factors the statute lists weigh in favor of transfer to uphold a juvenile court’s
evaluation of the gravity criterion. To the contrary, a court’s consideration of
the listed factors or “any [other] relevant factor” is permissive, not
mandatory. We recognize that some mitigating evidence about Kevin’s
“actual behavior” and “mental state” was presented, including his own claim
of self-defense.10 But this does not undermine other substantial evidence of
the crime’s seriousness, including the evidence that Kevin acted alone and
under no outside influence, stabbed Harley dozens of times, and engaged in
additional behavior dangerous to human life to cover up the crime.
Kevin also claims that the gravity criterion must be evaluated in light
of the ultimate issue at a transfer hearing, whether a minor “ ‘is amenable to
the care, treatment[,] and training program[] available through juvenile court
facilities.’ ” (Quoting Chi Ko Wong, supra, 18 Cal.3d at p. 717.) He seems to
10 The juvenile court found this claim was not credible, but we interpret
the finding as rejecting only a claim of perfect self-defense, given the court’s
statement that Kevin did not use “reasonable force.” Even if Kevin did not
act in perfect or even imperfect self-defense, it is still possible that he acted in
response to provocation from Harley, which would reduce the crime from first
degree to second degree murder. (See People v. Rivera (2019) 7 Cal.5th 306,
328.)
17
suggest that the juvenile court was precluded from finding this criterion
weighed in favor of transfer in light of Dr. Shields’s opinion that “ ‘as heinous
and egregious as this event was, . . . it [was] not so grave as to hamper or
preclude [Kevin] from being rehabilitated.’ ” Although we agree that the
circumstances and gravity of the crime are relevant because they bear on a
minor’s prospects of rehabilitation, Kevin does not offer any authority for the
proposition that expert testimony—or any other evidence beyond that bearing
on what happened during the crime—is required to evaluate this criterion.
In short, there was substantial evidence to support the court’s conclusion,
even though there may have also been substantial evidence to support a
different conclusion.
C. Substantial Evidence Supported the Determination that Kevin’s
Criminal Sophistication Weighed in Favor of Transfer.
Kevin also argues that insufficient evidence supported the juvenile
court’s findings as to the statutory criterion involving “[t]he degree of
criminal sophistication exhibited by the minor.” (§ 707, subd. (a)(3)(A)(i).) In
addition, he claims that the court’s discussion of how it evaluated this
criterion was too limited to provide “an adequate record for review.” We are
not persuaded on either count.
1. Additional facts
The probation officer believed that Kevin’s degree of criminal
sophistication also weighed in favor of his transfer to criminal court.
Concentrating on the crime itself, she observed that despite his claim of self-
defense, he brought a weapon with him to Harley’s apartment and “made
efforts to avoid being detected” when he first arrived, suggesting both that
the killing was premeditated and that he knew “he was about to do
something wrong.” She also identified other indications that Kevin “was
aware of the wrongfulness of his actions,” including his “heinous actions to
18
burn and destroy the crime scene, failure to seek assistance and report the
incident, and [decision] to flee the scene, only to return and flee again.”
Finally, she noted that Kevin did not have any “documented history of mental
health issues, childhood trauma, or diminished intellectual capacity”
suggesting he was unable to distinguish between right and wrong.
Dr. Shields, in contrast, concluded that Kevin’s attempts to conceal the
crime demonstrated “the absence of sophistication.” Among other “hopelessly
unsuccessful” actions, Kevin left the steak knife at the scene, kept the shoes
he wore that night even though they had blood on them, and failed to destroy
other physical evidence through either chemical agents or fire. And despite
the six-week gap between Harley’s killing and his interrogation, Kevin did
not come up with a plausible explanation for why, if he did not know Harley,
the phone records showed his number called hers numerous times.
Dr. Shields also opined that “outside of the facts of this crime,” there was
“nothing in the assessment data or in [Kevin’s] history that suggests . . . that
he is an individual who is developing a criminally sophisticated character.”
Indeed, Kevin’s “criminal character” seemed much less developed than that of
most other 18-year-old boys in juvenile hall, and he was not “an adolescent
who maintains that harming people, assaulting people[,] or committing any
form of crime . . . is a routine or acceptable form of conduct.”
More generally, Dr. Shields testified about recent research on the brain
chemistry of adolescents, which is “significantly different” from that of adults.
Adolescents’ brains continue to develop until they reach their early 20’s, and
there is generally a large gap between their “psychosocial maturity” and their
intellect, the latter of which develops more quickly. As a result, the behavior
an adolescent exhibits is less indicative of a long-term character trait than it
would be if an adult exhibited it, since “there is more development that’s
19
going to take place that’s going to improve reasoning ability, it’s going to
improve ability to foresee future consequence, it’s going to be able to be more
resistant to risk taking, outside influence, all of these kinds of things that we
know adolescents are vulnerable to.” Thus, “there is much more potential in
adolescents for change and development pro-socially than we thought
previously.”
The juvenile court concluded that the criminal-sophistication criterion
weighed in favor of transfer to criminal court. After observing that Kevin
was about 17 and a half years old at the time of the offense, the court
reviewed evidence that he was a normally functioning teenager. The court
noted that he seemed to be “of normal intelligence,” based on educational
testing and his obtaining of a diploma while in juvenile hall, and “his
cognitive functioning seem[ed] to be perfectly fine and [was] not impaired.”
The court also noted that although it accepted the testimony about adolescent
brain development, Dr. Shields had “opined that Kevin has good executive
functioning.” The court observed that Kevin’s “family background . . . is
unusually devoid of any type of abuse; either emotional, physical, any type of
what I would refer to as difficulty in his upbringing.” And while “his older
brother was reported to be a gang member,” it did not “appear that his
brother influenced him in any way. It sounds like [Kevin] had very positive
adults surrounding him.” Finally, the court found that “external influences”
did not appear to play a role in the offense. To the contrary, Kevin had
shown “the ability . . . to make good decisions in the face of tremendous
pressure” by resisting gang affiliation.
The juvenile court also addressed Dr. Shields’s opinion that Kevin’s
unsuccessful attempts to cover up the crime demonstrated a lack of criminal
sophistication. After expressly finding Dr. Shields’s testimony credible, the
20
court stated that it nevertheless “did not necessarily agree with everything
that Dr. Shields said.” The court acknowledged that Kevin “clearly made
some botched efforts to conceal what had occurred,” but it also observed that
“for several weeks” after the crime “he acted as if honestly nothing had
happened” and might have escaped detection altogether “[b]ut for the phone
calls that were discovered [in] the phone records.” The court found that
Kevin’s efforts at concealment were also significant “because he knew of the
wrongfulness and the consequences of this conduct,” concluding that “Kevin
has the ability to appreciate the risks and consequences of his criminal
behavior.”
2. Discussion
The criminal-sophistication criterion “requires a juvenile court . . . to
consider the whole picture, that is, all the evidence that might bear on the
minor’s criminal sophistication, including any criminal sophistication
manifested in the present crime.” (Jones, supra, 18 Cal.4th at pp. 683–684.)
In 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.” (§ 707, subd. (a)(3)(A)(ii).)
Initially, we reject Kevin’s cursory assertion that the juvenile court
failed to articulate its reasoning sufficiently to provide an adequate record for
review. He relies on C.S., in which the Court of Appeal granted the minor’s
writ petition after “conclud[ing] that the juvenile court’s transfer decision
21
[did] not permit meaningful appellate review because the juvenile court did
not 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 to transfer,” including as to the criminal-
sophistication criterion. (C.S., supra, 29 Cal.App.5th at pp. 1030–1031, 1035,
1039.) Although the juvenile court in C.S. “discussed relevant factors—such
as [the minor’s] early childhood, the expert testimony regarding [his] brain
development, [his] prior offenses, and [his] gang involvement”—it did not
specify whether those factors or the criminal-sophistication criterion
generally weighed in favor of transfer. (Id. at pp. 1030–1031.)
Here, in contrast, the juvenile court unambiguously found that the
criminal-sophistication criterion “favor[ed] transfer to adult court.” Although
the court did not explicitly state whether each particular factor it discussed
“weighed in favor of transfer, against transfer, or was neutral” (C.S., supra,
29 Cal.App.5th at p. 1030), in the context of the court’s overall discussion we
think its reasoning is sufficiently clear. Specifically, it appears the court
found that Kevin’s age, maturity, cognitive functioning, and positive
upbringing and social history, as well as his attempts to cover up his
involvement in the crime, weighed in favor of transfer to criminal court
because they demonstrated his “ability to appreciate the risks and
consequences of his criminal behavior” and his awareness “of the
wrongfulness . . . of [his] conduct.” And given its ultimate conclusion about
this criterion, the court appears to have found that these factors outweighed
other factors tending to suggest an absence of criminal sophistication,
including Kevin’s lack of “extensive prior criminal behavior” and Dr. Shields’s
testimony about the adolescent brain.
22
Whether the factors on which the juvenile court relied should weigh in
favor of a finding of criminal sophistication is a separate question. Kevin
argues that the court “seem[ed] to imply that [his] positive character traits
and . . . potential for growth equate to a sophisticated criminal character,”
which “surely . . . would be an abuse of discretion, as positive character traits
and protective factors cannot reasonably be used to support transfer.”
Similarly, his amici curiae contend that “[a]though strong family support,
positive and prosocial activities, normal intelligence[,] and lack of gang
involvement are all factors tending to support healthy emotional
development, maturity[,] and ‘sophistication’ as the term is used in the non-
criminal context, they are not factors that lead to the development of criminal
sophistication of the type the juvenile court is required to evaluate” under
section 707.
We agree that such positive factors do not affirmatively demonstrate
criminal sophistication. Positive background factors may support a juvenile
court’s finding that this criterion weighs in favor of transfer to the extent
they fail to mitigate other evidence that does affirmatively demonstrate
criminal sophistication. Thus, the gang involvement of a minor with poor
cognitive functioning might demonstrate a lesser degree of criminal
sophistication than the gang involvement of a minor with normal cognitive
functioning. But the mere fact that a minor is of normal intelligence, for
example, does not tend to prove that he or she is criminally sophisticated.
Likewise, Kevin’s knowledge that his actions were wrong and his ability “to
appreciate risks and consequences of criminal behavior” (§ 707,
subd. (a)(3)(A)(ii)), which the juvenile court focused on, do not in and of
themselves demonstrate criminal sophistication.
23
The juvenile court, however, did not rely only on Kevin’s positive
characteristics in concluding that this criterion weighed in favor of transfer.
It also relied on his attempts to avoid detection.11 These attempts included
using chemical agents on Harley’s body and throughout the scene and
attempting to set Harley’s body and apartment on fire. We conclude that
such behavior constitutes substantial evidence of a certain degree of criminal
sophistication. Although there is room for doubt about what precipitated
Harley’s killing and how impetuous the killing was, it is reasonable to infer
from Kevin’s activities over a sustained period after Harley’s death that he
formulated and carried out a strategy to cover his tracks.
Kevin argues that his attempts to avoid detection are not substantial
evidence of criminal sophistication because “an effort at concealment does not
. . . suggest an individual is a sophisticated criminal” unless “the manner in
which the effort is made” is criminally sophisticated. But this position cannot
be reconciled with Jones, even accepting that Kevin’s efforts were hardly the
work of a criminal mastermind. In Jones, our state Supreme Court held that
insufficient evidence supported the juvenile court’s determination that the
minors lacked criminal sophistication, even though they “had no previous
11Notably, the juvenile court did not rely on evidence of pre-killing
planning activity in connection with the criminal-sophistication criterion.
(See Jones, supra, 18 Cal.4th at p. 684 [minors’ “planning and execution of [a]
robbery” that culminated in store owner’s shooting “involved a degree of
criminal sophistication precluding a finding of fitness”].) The court
mentioned that Kevin brought a knife to Harley’s apartment, but it did so
while discussing his “efforts to conceal [the crime],” stating, “[H]e did go to
[Harley’s] home with at least one of the weapons with I believe some
wrapping around the handle to obscure any hand[prints] or fingerprints, I
assume.” Thus, although the People focus on Kevin’s supposed plan to
murder Harley in arguing that the court properly evaluated this criterion, we
do not address whether evidence of planning activity supports the court’s
ruling.
24
record of participation in any criminal offenses, gang activity, or mischievous
conduct,” and their plan to rob a store “was uncomplicated and ineptly
executed.” (Jones, supra, 18 Cal.4th at pp. 683–684.) Thus, the Court
effectively concluded not only that ineptitude in one’s criminal activities does
not preclude a finding of criminal sophistication, but also that such
ineptitude does not even constitute substantial evidence of a lack of criminal
sophistication.
We recognize that Jones was decided over 20 years ago, when the
juvenile transfer law differed in several respects from its current form.
Under then-prevailing law, the Jones minors had the burden of overcoming a
presumption of unfitness for treatment in the juvenile court system, which
required them to prove by a preponderance of the evidence that each of the
five section 707 criteria demonstrated their fitness. (Jones, supra, 18 Cal.4th
at pp. 677, 680–681.) In addition, as amici curiae observe, Jones was decided
before section 707 was amended to list specific factors relevant to each
criterion and before the general shift in the law to recognize more fully that
“ ‘the distinctive attributes of youth diminish the penological justifications for
imposing the harshest sentences on juvenile offenders, even when they
commit terrible crimes.’ ” (Quoting Miller v. Alabama (2012) 567 U.S. 460,
472.) But while it may be that our state Supreme Court would analyze the
criminal-sophistication criterion differently today, we are not free thereby to
disregard Jones’s discussion of it to the extent that discussion is consistent
with the current statutory scheme. (See Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.) In light of Jones, we conclude that Kevin’s
attempts to cover up the crime constitute substantial evidence of criminal
sophistication even if they were “hopelessly unsuccessful.”
25
D. The Juvenile Court Improperly Evaluated the Rehabilitation
Criterion.
Finally, Kevin contends that the juvenile court erred in evaluating the
rehabilitation criterion. We agree. The court determined that the standard
seven-year parole consideration period applicable to juveniles committed to
DJJ for murder established a minimum rehabilitation period for Kevin, and
it found that he was therefore unlikely to be rehabilitated while it retained
jurisdiction. We conclude both that the court erred by relying on the seven-
year period as a “baseline” rehabilitation period and that insufficient
evidence supports the finding that Kevin was unlikely to be rehabilitated
before juvenile court jurisdiction expired.
1. Additional facts
The probation officer testified that she contacted DJJ to obtain Kevin’s
parole consideration date, which is based solely on the generic offense
charged. She was told that the standard parole consideration date for
murder is seven years and that juvenile jurisdiction would exist until Kevin
reached age 25. Given that “it takes 60 to 90 days to be delivered to DJJ . . .
following a commitment” and that Kevin “would be released 90 to 100 days
prior to jurisdiction expiring,” the probation officer calculated that he “would
have approximately six and a half years to take advantage of rehabilitative
services offered at DJJ.”
In her report, the probation officer observed that “[b]ased on [Kevin’s]
positive behavior while being detained in [j]uvenile [h]all, it appears [he] is
able to program well in a structured environment.” She nevertheless
concluded that “[g]iven the extreme circumstance of the allegations and the
gravity of [Kevin’s] actions, it is not likely a DJJ commitment would allow
ample time to rehabilitate and take full advantage of therapeutic services.”
She also concluded that “a DJJ commitment may not allow adequate time for
26
supervision following [Kevin’s] release from DJJ,” meaning that “the
[j]uvenile [c]ourt would not be able to gauge [his] rehabilitation and ensure
the community’s safety.” At the hearing, the probation officer reiterated that
“based on the totality of the circumstances of the offense,” there was simply
“no way to know if seven years is enough to rehabilitate.” Thus, “erring on
the side of caution given that [upon] release there would be no supervision,
[the probation department] did not believe that a commitment to DJJ would
be appropriate.”
The probation officer confirmed that her opinion was not based on an
assessment of Kevin’s particular rehabilitative needs. She agreed that she
could “not identify specific therapeutic services that Kevin would be unable to
take advantage of if committed to DJJ until age 25” and that she did not
“have the training and expertise to be able to opine Kevin needs ‘X’ program
and that program is not available at DJJ.” Rather, her opinion “was based
solely on the fact that this is a serious offense,” and she acknowledged that
“other than the circumstances of the current offense there [was] nothing that
[she] identified to suggest that Kevin is a serious danger to the public” and
“nothing in Kevin’s history to suggest that he is not amenable to
rehabilitation in [j]uvenile court.”
Dr. Shields concluded that Kevin showed “significant rehabilitative
potential.” In explaining this conclusion, Dr. Shields identified several
factors demonstrating Kevin’s amenability to rehabilitation. During their
meetings, Kevin seemed “boyish” and “eager to please,” which Dr. Shields
found unusual compared to his experience with other older boys at juvenile
hall. Indeed, it became “quickly apparent” to Dr. Shields that Kevin did not
exhibit any signs of antisocial behavior he typically saw when evaluating
other minors, including unwillingness to interact, disrespectful language, and
27
resistance to cooperating. Psychological testing confirmed this impression, as
it did not show any signs that Kevin was developing an antisocial character.
To the contrary, Dr. Shields found Kevin to be “exquisitely receptive to the
input of authority figures . . . [and] the prospect of services that might be
available to him,” characterizing him as “not an individual who is going to
inhibit the rehabilitative process.”
Dr. Shields observed that Kevin’s family environment was supportive
and positive, without any indications of “ongoing criminality” or the
condoning of delinquency. Kevin had excellent relationships with his family
members and was trusted with the significant responsibility of caring for
young children. Kevin described being taught good values, including hearing
from his parents that it was important to learn from one’s mistakes.
Specifically, Kevin’s avoidance of gang involvement indicated his family’s
positive influence on his morals.
Dr. Shields also found Kevin’s positive employment history at the Boys
& Girls Club to be significant, especially because it offered the chance for
another adult outside the family to observe Kevin’s character and
responsibility. Dr. Shields testified, “I can’t think of another individual I’ve
evaluated in a transfer hearing for whom that could be said, that . . . they
have that extent of sustained employment and dedication to what they are
doing.”
Kevin’s performance at juvenile hall demonstrated his amenability to
rehabilitation as well. His grades showed marked improvement once he
entered a structured setting, which Dr. Shields testified was unusual, since
“typically the way that [minors] perform in the community-based setting is
going to be indicative of how they perform in the [j]uvenile [h]all setting.” In
addition, aside from the two fights early in his time there, Kevin exhibited
28
“prosocial” behavior in juvenile hall. Dr. Shields found it particularly
significant that Kevin was willing to meet with a therapist, because it showed
his “openness to the input . . . of adults in a rehabilitative way. [¶] . . . [¶]
Many kids who are much more criminally oriented or psychopathically
developing, if you will, are going to stay as far away from those people [as]
they can, and if they do interact with those people it’s been in my experience
[in] a very negative way. But we don’t see that from Kevin.”
Kevin’s remorse over Harley’s death also indicated to Dr. Shields that
Kevin could be rehabilitated. Kevin stated that he “felt badly for what
happened” and recognized the crime’s negative impact on Harley’s family.
Dr. Shields explained that it was “a positive sign” for “an adolescent to be
able to express genuine feeling with noticeable and appropriate shifts in their
emotional expression or their tone,” and Kevin did not “ma[k]e light of [the
crime] . . . or distance[] himself from responsibility.”
Finally, Dr. Shields performed a juvenile risk assessment that showed
Kevin posed a low risk of future violent behavior. Dr. Shields noted that the
assessment did not account “to any significant degree” for the nature of the
subject’s current offense, which research showed was not “a significant
predictor of recidivated violence.” As Dr. Shields explained, although
“common sense would tell us that . . . someone who commits a very violent,
serious offense . . . must be a very, very dangerous individual,” in fact even
“perpetrators of the most severely violent behavior, if they are not
antisocially predisposed . . . or do not have psychopathic character, or some
other factor that would suggest probability for violence, then the risk for
reoffense in those cases is actually quite low.”
The juvenile court deemed the rehabilitation criterion “the most
significant” factor in its decision to grant the prosecution’s transfer motion.
29
Based on DJJ’s “seven-year baseline” for the offense, the approximately 45-
day “delay getting individuals to DJJ,” the need to release individuals 90 to
120 days before juvenile court jurisdiction expires at age 25, and Kevin’s age
of 18 and a half years at the time of the hearing, the court calculated that “by
the time [Kevin] were to get to DJJ, . . . [there] would be . . . well less than
seven years,” or even “under six years,” remaining for Kevin “to be able to
engage in the services at DJJ.” Even though the court agreed that Kevin had
done well in juvenile hall, it found that the rehabilitation criterion “favor[ed]
transfer to adult court” because he would spend less than seven years in DJJ.
Ultimately, the court concluded that despite Kevin’s “very good upbringing”
and the lack of “warning signs leading up to this,” he had “a side to him that
is extremely dangerous and [it did not] think that the community [could] be
safe if he is tried in juvenile court.”
2. Discussion
The rehabilitation criterion addresses “[w]hether the minor can be
rehabilitated prior to the expiration of the juvenile court’s jurisdiction,” and
section 707 identifies “the minor’s potential to grow and mature” as a
“relevant factor” to the evaluation. (§ 707, subd. (a)(3)(B)(i)–(ii).) A juvenile
court can retain jurisdiction over a minor committed to DJJ for the offense of
murder until the minor reaches age 25. (§§ 607, subd. (b), 707, subd. (b)(1),
1769, subd. (b); C.S., supra, 29 Cal.App.5th at p. 1031.)
Separately, a DJJ regulation in effect for decades establishes “[a] parole
consideration date interval of seven years” when a minor is committed to DJJ
for various offenses, including murder. (Cal. Code Regs., tit. 9, § 30807
[formerly Cal. Code Regs., tit. 15, § 4951].) Thus, “as a general rule, a minor
confined for committing first degree murder is eligible for parole
consideration at least every seven years.” (In re R.O. (2009) 176 Cal.App.4th
301493, 1498, fn. 6.) Although “[a] parole consideration date represents, from
its date of establishment, an interval of time in which a ward may reasonably
and realistically be expected to achieve readiness for parole[,] . . . [i]t is not a
fixed term or sentence, nor is it a fixed parole release date.” (Cal. Code Regs.,
tit. 9, § 30815, subd. (a).) To the contrary, “[a] parole consideration date may
be adjusted by the Board [of Juvenile Hearings] in response to the individual
training and treatment needs of a ward.” (Id., § 30815, subd. (g).) Indeed, as
amici curiae point out, the Board is required “to discharge the minor ‘as soon
as in its opinion there is reasonable probability that he or she can be given
full liberty without danger to the public.’ ” (R.O., at p. 1498, fn. 6, quoting
§ 1765, subd. (b).)
Kevin claims that the juvenile court erred in treating the “seven-year
baseline” for murder as establishing a “minimum rehabilitation period.” He
argues that the seven-year period addresses parole eligibility, not
rehabilitation, and his eligibility for parole before age 25 does not affect
“whether, based on his individual needs, risk and protective factors, attitude,
intelligence, and demonstrated amenability to treatment, he can be
rehabilitated within the allotted time.” The People respond that the juvenile
court “was within [its] rights to infer that this period of time was indicative of
how long [Kevin] might need to be at [DJJ]” and that “[t]he seven-year
baseline was a useful guide for the [c]ourt in assessing the time needed to
rehabilitate a minor who . . . committed murder.”
We agree with Kevin that the parole consideration period does not
establish a minimum rehabilitation period. The People do not cite any legal
authority for the proposition that a juvenile court may rely on the seven-year
period to reach any conclusions about what a particular minor’s rehabilitative
needs and prospects are. If anything, presuming that a minor who
31
committed murder will take at least seven years in DJJ to rehabilitate is
inconsistent with section 707, since it necessarily disfavors juvenile
treatment for those, like Kevin, who are accused of committing murder at
age 17. (See J.N., supra, 23 Cal.App.5th at p. 724.) Without more, the fact
that juvenile court jurisdiction may expire before a minor is considered for
parole is immaterial in evaluating section 707’s rehabilitation criterion.12
Kevin further argues that in focusing on the seven-year period, the
juvenile court “failed to adequately address whether [he] could be
rehabilitated prior to the expiration of juvenile court jurisdiction—the actual
question posed by the [rehabilitation] criterion.” According to him, “the
prosecution failed to present any evidence as to what efforts would be
necessary to rehabilitate [him], what programs exist in the juvenile system
geared toward addressing [his] rehabilitative needs, and any reason why [he]
could not avail himself of these programs or be rehabilitated in the time
allotted.” He claims insufficient evidence therefore supports the juvenile
court’s determination that the rehabilitation criterion weighed in favor of
transfer. Again, we agree.
“If the possibility that [DJJ] might have to treat a ward of the juvenile
court beyond the age of his [or her] majority is the determinative factor in the
court’s decision that the minor is unfit [for treatment as a juvenile], there
must be substantial evidence in the record that successful treatment might
require the extra time.” (Jimmy H. v. Superior Court (1970) 3 Cal.3d 709,
12 As a result of this conclusion, we find it unnecessary to address
Kevin’s contention that the juvenile court also abused its discretion by
discounting the possibility of a commitment past age 25 under section 1800,
which permits DJJ to petition to retain control of a minor who “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.”
32
715.) “Expert witnesses may testify on the availability of treatment
programs in the juvenile court system and the amenability of the minor to
those programs. [Citation.] In those cases where the juvenile court might
decide treatment as a juvenile would be in the minor’s best interest, the court
could still find the minor ‘unfit if those experts testified that rehabilitation
might require treatment beyond the date of his [or her] mandatory
discharge.’ ” (J.N., supra, 23 Cal.App.5th at pp. 721–722, quoting Jimmy H.,
at p. 715.)
In J.N., the Fourth District Court of Appeal held that insufficient
evidence supported the juvenile court’s determination that a minor accused of
murder “was not an appropriate candidate for treatment in the juvenile
justice system under this criterion.” (J.N., supra, 23 Cal.App.5th at pp. 721–
722.) Despite recognizing that the minor “ ‘ha[d] come a long way in
custody,’ ” the juvenile court determined that the fact that only three years
remained before its jurisdiction expired weighed in favor of transfer. (Id. at
p. 721.) At the transfer hearing, however, “the prosecution did not present
any 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. There was no evidence that
demonstrated existing programs were unlikely to result in [the minor’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
[him].” (Id. at p. 722.) As a result, the finding that the minor was unsuitable
for treatment in juvenile court constituted an abuse of discretion. (Ibid.)
The prosecution here similarly presented little if any evidence to
demonstrate what Kevin’s rehabilitative needs were, much less why they
33
could not be met through a DJJ commitment.13 Dr. Shields testified that
Kevin had good prospects of being rehabilitated in the juvenile system, based
on evidence of Kevin’s positive characteristics, lack of serious psychological
issues, performance in juvenile hall, and low risk of reoffense. The
prosecution offered no contrary expert testimony. While the probation officer
opined that the rehabilitation criterion favored transfer, her opinion was
speculative, as she agreed there was “no way to know” if Kevin would be
rehabilitated before juvenile court jurisdiction expired. Moreover, she
candidly agreed her opinion was based on nothing specific about Kevin except
“the circumstances of the current offense.” Thus, “[e]ven if we were to accept
the probation officer’s conclusion in the [transfer] report as an expert opinion,
and we do not, the conclusion under this [criterion] was not supported by the
evidence.” (J.N., supra, 23 Cal.App.5th at p. 722.)
In short, while the circumstances of an offense are key to evaluating
section 707’s gravity criterion, they cannot be the sole basis for concluding
under the rehabilitation criterion that the minor is unlikely to be
rehabilitated before juvenile jurisdiction expires. The juvenile court here
misunderstood this principle by presuming from the gruesomeness of
Harley’s killing and the subsequent cover-up attempts that Kevin must
have—despite Dr. Shields’s testimony to the contrary—“a side to him that is
13 The focus at the transfer hearing was on the amount of time Kevin
might be able to spend in DJJ before the juvenile court’s jurisdiction expired,
but we note that the rehabilitation criterion is not expressly so limited. (See
§ 707, subd. (a)(3)(B)(i).) In other words, we see no reason that a minor’s pre-
disposition progress toward rehabilitation while still in juvenile hall should
be discounted when evaluating the amount of time that rehabilitation in the
juvenile system will ultimately require. Although Kevin does not raise a
claim of error related to this focus, upon reevaluation of this criterion the
juvenile court should be mindful of the time he has already spent in custody
working toward rehabilitation.
34
extremely dangerous” such that “the community [could not] be safe if he is
tried in juvenile court.” We accept that a crime’s circumstances may
sometimes evince personal characteristics, such as a psychological disorder,
that make a minor less amenable to rehabilitation. But without expert
testimony to that effect, a court cannot reasonably infer that a minor has an
amorphous “dark side” hindering rehabilitation. Otherwise, the
rehabilitation criterion would be meaningless in every case in which a
juvenile committed a grave crime, a result for which we discern no legislative
support. The circumstances of Harley’s killing were appalling, but they did
not provide substantial evidence that the rehabilitation criterion favored
Kevin’s transfer to criminal court.
Finally, we address the appropriate disposition. Kevin seeks a writ of
mandate requiring the juvenile court to (1) “set aside its order . . .
transferring [his] case to criminal court” and (2) “enter a new and different
order that the transfer motion be denied,” but the parties’ briefs do not
address whether the second direction is warranted given our determination
that substantial evidence supports two of the statutory criteria on which the
court relied.
At oral argument, Kevin’s counsel contended that we should not
remand the matter to the juvenile court for reconsideration, because the court
would necessarily abuse its discretion if it again decided to transfer Kevin to
criminal court. Counsel argued that unless there is some evidence that a
minor cannot be rehabilitated before the juvenile court’s jurisdiction expires,
a court cannot lawfully grant a transfer motion. Although the trend in the
law is clearly toward retaining more minors in juvenile court, nothing in
section 707 supports the notion that the rehabilitation criterion is now
determinative regardless of the other criteria that must be considered. Thus,
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even though the evidence of Kevin’s amenability to rehabilitation in juvenile
court is compelling, we are unable to say as a matter of law that “[n]o
juvenile court could reasonably conclude, based on all of the evidence
presented,” that he should be transferred to criminal court. (Jones, supra,18 Cal.4th at p. 686; cf., e.g., J.N., supra, 23 Cal.App.5th at pp. 720–725
[ordering superior court “to enter a new order denying the section 707
petition” where substantial evidence did not support either criterion found to
weigh in favor of transfer].) As a result, we will remand the matter to the
court for it to reconsider its decision.
III.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to
(1) vacate its order of November 14, 2019, transferring the matter to criminal
court, and thereby return Kevin to juvenile jurisdiction, and (2) reconsider its
ruling on the prosecution’s transfer motion in a manner consistent with this
opinion. Specifically, the court shall reevaluate the rehabilitation criterion
under section 707, subdivision (a)(3)(B)(i), and shall then reweigh, upon
consideration of all five criteria under section 707, subdivision (a)(3), whether
Kevin should be transferred to criminal court. This opinion shall be final in
this court seven days from the date of filing. (Rule 8.490(b)(2)(A).)
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Banke, J.
Kevin P. v. Superior Court A159680
37
Trial Court:
Superior Court of the County of Contra Costa
Trial Judge:
Hon. Barbara Hinton
Counsel for Petitioner:
Robin Lipetzky, Public Defender
Jonathan Laba, Assistant Public Defender
Diana Garrido, Deputy Public Defender
Counsel for Real Party in Interest:
Diana Becton, District Attorney
Kabu Adodoadji, Deputy District Attorney
Amici Curiae for Petitioner:
Markéta Sims, Cyn Yamashiro, Independent Juvenile Defender
Program
Susan L. Burrell, Pacific Juvenile Defender Center
Kevin P. v. Superior Court A159680
38