People v. J.S. ( 2024 )

Filed 9/18/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re J.S., a Person Coming 2d Juv. No. B336233
Under the Juvenile Court (Super. Ct. No. 2019028014)
Law. (Ventura County)
THE PEOPLE,
Plaintiff and Respondent,
v.
J.S.,
Defendant and Appellant.
The Court of Appeal does not reweigh evidence on appeal.
The Court of Appeal does not substitute its discretion for that of
the trial court on appeal. In an amended, 18-count petition filed
pursuant to Welfare and Institutions Code section 602, the
People alleged that J.S. committed murder (Pen. Code, § 187), as
well as 17 other serious felony offenses.1 (See pp. 2-3, post.)
All further statutory references are to the Welfare and
1
Institutions Code unless otherwise stated.
After a hearing, the juvenile court ordered appellant transferred
to adult criminal court. (§ 707, subd. (a).) Appellant contends
the order is not supported by substantial evidence, and the
juvenile court abused its discretion by misapplying the statutory
requirements. These contentions are, in essence, an invitation to
retry and reweigh the evidence and “second guess” the trial
court’s sound discretion. We affirm.
Factual Predicate
In 2018 and 2019, appellant engaged in a series of crimes.
He was 16 years old when some of the offenses occurred and 17
when others occurred. Appellant committed seven “street
robberies” in which he and his cohorts approached random
individuals and demanded their cell phones, jewelry, and cash.
In April and June 2019, he committed a burglary at an
apartment leasing office and a house. In June 2019, he
attempted to rob Charles Barber. When Barber resisted,
appellant struck him several times and stabbed him in the head
with a knife, killing him. Two days after the murder, appellant
drugged a 14-year-old girl in a motel, sexually assaulted her with
another male, and filmed himself having sex with the girl while
she was unconscious.
Section 602 Petition
In a fourth amended petition, the People charged appellant
with violations of the Penal Code, including: murder (§ 187, subd.
(a)(1), count 1), with the special allegation that he personally
used a knife (§ 12022, subd. (b)(1)); second degree robbery (§ 211,
counts 2-5), with special allegations that he personally inflicted
great bodily injury (§ 12022.7) as to count 3, and personally used
a knife (§ 12022, subd. (b)(1)) as to count 4; rape and other crimes
against a single victim (§§ 261, subds. (a)(3), (a)(4), 289, subds.
2
(d), (e), 287, subds. (f), (i), 286, subds. (f), (i), counts 6-13); first
degree residential burglary (§ 459, counts 14 and 18); and second
degree robbery (§ 211, counts 15-17), with the special allegation
that appellant personally used a knife (§ 12022, subd. (b)(1)) as to
count 15.
The People filed a motion to transfer appellant to adult
criminal court. The probation department filed a report in
support of transfer. After extensive briefing, the juvenile court
conducted the transfer hearing.
Appellant’s Family and Social History
Appellant’s mother was the victim of prolonged domestic
abuse by appellant’s father, including while she was pregnant
with appellant. When appellant was five years old, his mother
left his father. When appellant was 13 years old, his mother
became pregnant by another man, who moved into the family
home. Over the next several years, Child Protective Services
investigated reports of physical abuse and neglect. The family
experienced food insecurity and homelessness at one point.
When appellant was 15 years old, he began visiting his
paternal family. His mother noticed he was more distant after
the visits. Around the same time, appellant began experimenting
with Xanax, alcohol, marijuana, and cocaine and developed an
addiction to Xanax.
Appellant’s Conduct in Custody
Appellant has been detained at the juvenile detention
center since August 2019. Since that time, he has received two
major incident reports for fighting and possession of contraband.
He has also received 69 minor incident reports as of April 2021.
In September 2023, appellant was involved in a physical
fight in the juvenile detention center. Probation Officer Clemente
3
Andrade intervened and separated appellant from the other
individual.
Appellant participated in social and rehabilitation
programming and graduated from high school with his diploma.
He also participated in the Providence Scholars program, which
allowed him to enroll in college courses. Additionally, appellant
received mental health treatment and therapy.
Expert Testimony
Dr. Blake Carmichael, a clinical psychologist retained by
the People, opined that it would be “very difficult” for appellant to
be rehabilitated prior to the expiration of the juvenile court’s
jurisdiction. He identified several “risk factors” to appellant’s
rehabilitation. These included appellant’s drug use while in
custody, likely risk for violent recidivism, gang involvement, and
his consistent pattern of rule violations during his detention. Dr.
Carmichael also testified that he did not see any evidence that
appellant’s crimes were triggered by prior trauma. He opined it
was “possible” but not “probable” that appellant could be
rehabilitated prior to age 25.
Probation Officer Vredenburgh, testified about the
rehabilitative programming available to juveniles through the
SYTF, including: Moral Reconation Therapy, Dialectic Behavioral
Therapy, Youth Mentor Counseling, Interactive Journaling
Workbooks, Healthy Lifestyles, Word on the Street, Poetry,
Tablet programs on Master Plan Work and Money Essentials,
Visual Arts and Mural, Music in Society, Substance Treatment
Services, Youth Sex Offender Treatment, Anger Management,
Passport to Manhood, Money Matters, Alpha Leadership, and
Behavioral Health.
4
Probation Officer Andrade testified about the incident that
occurred in September 2023 while the transfer hearing
proceedings were pending. Appellant and two other minors
approached A.A. as he played soccer in the yard. Appellant said
to A.A., “‘I heard you regulate this unit’.” Officer Andrade viewed
this as a challenge to exert authority. When A.A. tried to put his
arm around appellant, appellant pushed him away and said,
“[Y]ou’re a bitch.” Officer Andrade intervened as appellant
shouted obscenities at A.A., gave the command to “take it down”
multiple times, and had to deploy his olserium capsicum (OC)
spray before appellant fully complied.
Doug Ugarkovich, a juvenile justice consultant, testified on
behalf of appellant. He opined that appellant was amenable to
rehabilitation in the 47 months remaining until the expiration of
the juvenile court’s jurisdiction.
Dr. Stephanie Marcy, a clinical psychologist, interviewed
appellant and reviewed reports. She also examined appellant
using the Million Clinical Multiaxial Inventory and Adverse
Childhood Experience checklist. Dr. Marcy testified the test
results showed appellant was responding positively to the
therapeutic interventions he had received while in programming.
Dr. Marcy opined there was a “very strong potential” for
appellant to continue to rehabilitate over the next four years. On
cross-examination, Dr. Marcy acknowledged that planning ahead
to commit a crime would be a sign of criminal sophistication.
The Juvenile Court’s Order
In March 2024, the juvenile court issued its ruling, finding
that the People had met their burden on four of the five transfer
criteria. In its ruling, the juvenile court found, by clear and
convincing evidence, that appellant was not amenable to
5
rehabilitation while under the juvenile court’s jurisdiction and
ordered the matter transferred to adult criminal court.2
Discussion
We review the juvenile court’s determination to transfer a
minor to criminal court for abuse of discretion. (J.N. v. Superior
Court (2018) 23 Cal.App.5th 706, 714 (J.N.); In re Miguel R.
(2024) 100 Cal.App.5th 152, 165 (Miguel R.).) “The court’s factual
findings are reviewed for substantial evidence, and its legal
conclusions are reviewed de novo. [Citation.] A decision based on
insufficient evidence or the court’s ‘“erroneous understanding of
applicable law”’ is subject to reversal. [Citation.]” (Kevin P. v.
Superior Court (2020) 57 Cal.App.5th 173, 187.) But, as
indicated, we do not reweigh the evidence and we do not
substitute our discretion for the discretion exercised by the trial
court. The rules attendant to these standards were explained in
detail by this court in Estate of Gilkison (1998) 65 Cal.App.4th
1443, 1448-1449, citing inter alia Brown v. Newby (1940) 39
Cal.App.2d 615, 618.
Our opinion “. . . is not a controversial tract, much less a
brief in reply to the counsel against whose views we decide.”
(Holmes v. Rogers (1859) 13 Cal. 191, 202.) Thus, we do not view
the trial court’s contemporaneous remarks, which appellant
seizes upon, as impeaching its ruling. (E.g., People v. Gibson
(1987) 195 Cal.App.3d 841, 853.) It is not determinative that the
trial court mistakenly said that the case originated in the
criminal court. (See also Davey v. Southern Pacific Co. (1897) 116
Cal. 325, 329.)
2 The juvenile court found that the People had not carried
their burden as to “previous juvenile court attempts to
rehabilitate.” (See discussion, at pp. 11-12, post.)
6
The ultimate question for the juvenile court in a transfer
petition is whether a minor is amenable to rehabilitation before
the juvenile court’s jurisdiction expires. (§ 707, subd. (a)(3); In re
E.P. (2023) 89 Cal.App.5th 409, 416.) To order a minor’s transfer
to a court of criminal jurisdiction, the juvenile court must “find by
clear and convincing evidence that the minor is not amenable to
rehabilitation while under the jurisdiction of the juvenile court.”
(§ 707, subd. (a)(3).)
In making that determination, the juvenile court must
consider five specific factors: (1) “[t]he degree of criminal
sophistication exhibited by the minor” (§ 707, subd. (a)(3)(A)(i));
(2) “[w]hether the minor can be rehabilitated prior to the
expiration of the juvenile court’s jurisdiction” (id., subd.
(a)(3)(B)(i)); (3) “[t]he minor’s previous delinquent history” (id.,
subd. (a)(3)(C)(i)); (4) “[s]uccess of previous attempts by the
juvenile court to rehabilitate the minor” (id., subd. (a)(3)(D)(i));
and (5) “[t]he circumstances and gravity of the offense alleged in
the petition to have been committed by the minor” (id., subd.
(a)(3)(E)(i)).
The statute also sets forth a nonexhaustive list of relevant
factors for the juvenile court to consider with respect to each of
the five criteria. (§ 707, subd. (a)(3)(A)(ii), (B)(ii), (C)(ii), (D)(ii),
(E)(ii).) If the juvenile court orders a transfer to criminal court, it
must “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.” (Id., subd.
(a)(3).)
Sufficiency of the Evidence/Abuse of Discretion
Appellant contends the juvenile court abused its discretion
in ordering him transferred to the superior court because the
7
prosecution did not present sufficient evidence to prove he was
not amenable to rehabilitation prior to the expiration of the
juvenile court’s jurisdiction. He contends Dr. Carmichael’s
opinion that “it was possible, but not probable” he could be
rehabilitated prior to the expiration of the juvenile court’s
jurisdiction, is not “clear and convincing” evidence. This is
especially so, appellant contends, given that two defense experts
testified he could be timely rehabilitated, and he had been
participating in his programming at the “‘Excellent Level.’” But
the juvenile court was not required to credit the testimony of the
defense experts. As trier of fact, it was free to discredit such
testimony. Phrased otherwise, any trial court is not bound by an
expert’s testimony and opinion. (See People v. Johnson (1992) 3
Cal.4th 1183, 1231-1232; People v. Engstrom (2011) 201
Cal.App.4th 174, 187.)
A juvenile court can retain jurisdiction over a minor as
described in section 602 for the offense of murder until he or she
attains 25 years of age, or upon the expiration of a two-year
period of control, whichever occurs later. (§§ 607, subd. (c), 1769,
subd. (b).) In determining whether the minor can be
rehabilitated prior to the expiration of the juvenile court’s
jurisdiction, “the juvenile court shall give weight to any relevant
factor, including, but not limited to, the minor’s potential to grow
and mature.” (§ 707, subd. (A)(3)(B)(ii).) “Expert witnesses may
testify on the issue of the availability of treatment programs in
the juvenile court system and the amenability of the minor to
those programs.” (J.N., supra, 23 Cal.App.5th at p. 721.)
Here, the juvenile court concluded “there is not enough
time for the Minor to rehabilitate.” In so concluding, the juvenile
court considered all of the evidence presented, including expert
8
testimony. In its written ruling, the juvenile court expressly
noted, “[t]he serious nature of the charged crimes – murder,
sexual assault, robbery and burglary, and the Minor’s conduct
before and after incarceration clearly indicate his needs are
complex and require prolonged treatment and supervision beyond
what the juvenile court[‘s] jurisdiction can offer.”
This is consistent with Dr. Carmichael’s conclusion that it
would be “very difficult” and “unlikely” that appellant could
achieve rehabilitation prior to age 25. Indeed, Dr. Carmichael
explained he would have anticipated seeing “a greater trajectory
towards progress.”
Application of Section 707 Transfer Criteria
Appellant next contends the juvenile court did not properly
apply the section 707 transfer criteria. As we have indicated, we
need not reply to these “sub-arguments.” (See ante, p. 7.) But,
we elect to treat with two of them, sophistication and previous
history. Appellant contends the factors the juvenile court
considered as to criminal sophistication and previous delinquent
history were insufficient to justify transfer under the heightened
clear and convincing evidence standard.
When evaluating the degree of criminal sophistication
exhibited by the minor, section 707 requires the juvenile court to
“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; the effect of the minor’s
family and community environment; the existence of childhood
trauma; the minor’s involvement in the child welfare or foster
9
care system; and the status of the minor as a victim of human
trafficking, sexual abuse, or sexual battery on the minor’s
criminal sophistication.” (Id., subd. (a)(3)(A)(ii).)
Appellant contends he presented “significant evidence” of
these factors, including evidence of childhood trauma and
favorable evidence of his therapeutic growth while in custody.
According to appellant, the juvenile court did not acknowledge
this evidence.
But the juvenile court expressly stated in its written ruling
that it had considered “the arguments of counsel, the reports and
exhibits admitted into evidence, and the testimony of all
witnesses,” which necessarily included evidence of appellant’s
social, emotional, and intellectual history.
After considering all of the evidence, the juvenile court
opined that appellant’s charged conduct involved violence and
had progressed from robbery to robbery with a knife to murder
with a knife. The crimes were not spontaneous or impulsive but
were indicative of deliberation. The victims were vulnerable,
elderly, or minor victims. There was little to no indication
appellant suffered from any intellectual deficits. While in
custody, he was able to finish high school and had taken college
level courses. During an interview with law enforcement,
appellant was “evasive,” and denied any involvement in the
murder but later discussed attempts to conceal evidence.
Indeed, even appellant’s expert witness, Dr. Marcy,
acknowledged that planning ahead to commit a crime would be
indicative of criminal sophistication.
When evaluating the minor’s previous delinquent history,
section 707 requires the juvenile court to “give weight to any
relevant factor, including, but not limited to, the seriousness of
10
the minor’s previous delinquent history and the effect of the
minor’s family and community environment and childhood
trauma on the minor’s previous delinquent behavior.” (Id., subd.
(a)(3)(C)(ii).)
As to this criterion, the juvenile court recounted appellant’s
previous contact with law enforcement, including bringing a knife
to school, trespassing, robbery, theft, and failing to fulfill the
terms of his probation. The juvenile court also noted appellant’s
“significant school delinquency” history starting in the seventh
grade, including poor behavior, suspensions, and multiple
attempts by school officials to rehabilitate appellant. This
previous delinquent history supported transfer to adult court.
(Miguel R., supra, 100 Cal.App.5th at p. 165.)
Disposition
The juvenile court’s order transferring this matter to the
superior court is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, Acting P. J.
We concur:
BALTODANO, J.
CODY, J.
11
Gilbert A. Romero, Judge
Superior Court County of Ventura
______________________________
Claudia Y. Bautista, Public Defender, Thomas Hartnett,
Snr. Deputy Public Defender, 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, Senior
Assistant Attorney General, Chung L. Mar, David E. Madeo, and
David Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.