State v. Zuniga

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. ZUNIGA
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JONATHAN G. ZUNIGA, JR., APPELLANT.
Filed May 31, 2022. No. A-22-065.
Appeal from the District Court for Lancaster County: SUSAN I. STRONG, Judge. Affirmed.
Timothy S. Noerrlinger for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
MOORE, ARTERBURN, and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Jonathan G. Zuniga, Jr., appeals from an order of the Lancaster County District Court
denying his request to transfer his case to the juvenile court. Finding no abuse of discretion by the
district court, we affirm.
II. BACKGROUND
In October 2021, Zuniga was charged with two counts of robbery, both Class II felonies.
The charges arose from two separate incidents which occurred in March and May 2021.
During the March 2021 incident, three teens reported being robbed in a parking lot after
being lured there by communications via Snapchat for the sale of basketball shoes. The victims
reported that their assailants were six black males, one of whom brandished a handgun. The victims
were robbed of a wallet containing $200 in cash, gift cards, and credit cards. A Volkswagen sedan,
determined to be used by Zuniga, was present at the scene.
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During the May 2021 incident, two teens were robbed of electronics including an iPhone,
AirPods, money, jewelry, and vape supplies after they were lured to the area by communications
via Snapchat to purchase vape pens and accessories. The victims described the assailants as two
black males, one of whom brandished a handgun. The victims also reported that the perpetrators
punched them in their heads and faces and that the assailants left the scene in a Volkswagen sedan
driven by a white male. During an interview with law enforcement officers, Zuniga admitted to
being the driver for others during the March and May robberies and being aware of the intentions
of his occupants.
In October 2021, Zuniga filed a motion to transfer his case to juvenile court. A hearing
thereon was held in December. At the time of the alleged offenses, Zuniga was 16 years old, but
at the time of the hearing, Zuniga was 17 years old. Defense counsel called two witnesses: Kara
Wilkinson, a juvenile probation officer, and Zuniga’s mother. The State did not call any witnesses
and offered one exhibit into evidence.
Wilkinson testified that she is routinely tasked with supervising juveniles placed on
probation pursuant to Lancaster County juvenile court adjudications. Conditions can include
attending school or work, electronic monitoring, therapy, drug testing, curfew, requiring that the
probationer not commit any new law violations or use drugs or alcohol, and prohibiting the
probationer from associating with certain other individuals. According to Wilkinson, graduated
sanctions are available including higher levels of treatment, placement outside the home, and
placement at the Youth Rehabilitation Treatment Center for the highest level of supervision
available. Wilkinson confirmed that the juvenile court can retain jurisdiction over a juvenile
probationer until he or she reaches 19 years of age and that district court judges have the same
remedies available to them as juvenile court judges. Wilkinson also stated that the benefit to Zuniga
of going to juvenile court is that his case would be sealed if he followed the juvenile court’s orders.
Zuniga’s mother testified that Zuniga had not previously been charged with an offense in
either juvenile or district court and that this was the first time that he had ever been accused of a
crime.
The exhibit offered into evidence by the State was admitted into evidence and sealed. The
exhibit contained a variety of sections, including Zuniga’s prior contacts with police, police reports
related to the robberies charged in this case which set forth the facts previously stated, police
contact regarding an October 2021 incident in which Zuniga was assaulted, and reports and other
information related to a shooting that occurred at the Edgewood movie theater involving
individuals known to Zuniga. The exhibit further set forth that Zuniga admitted that he was driving
the Volkswagen during the March and May 2021 robberies and that he knew prior to the incidents
of the plan to rob the victims.
The district court found that the State had met its burden of proof and overruled Zuniga’s
motion to transfer his case to the juvenile court. Specifically, the court stated that “[i]n applying
the balancing test . . . where ‘public protection and societal security are weighed against the
practical and nonproblematical rehabilitation of the juvenile,’ . . . the court finds, in the instant
case, that a sound basis does exist for this court to maintain jurisdiction.” The details of the district
court’s consideration of the transfer factors contained in § 43-276 will be provided in our analysis
below. Zuniga now appeals the denial of his request to transfer the case to the juvenile court.
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III. ASSIGNMENT OF ERROR
Zuniga assigns as error that the district court abused its discretion in denying his motion to
transfer to the juvenile court.
IV. STANDARD OF REVIEW
A trial court’s denial of a motion to transfer a pending criminal proceeding to the juvenile
court is reviewed for an abuse of discretion. State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018).
An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.V. ANALYSIS
Zuniga contends that the district court erred in denying his motion to transfer his case to
the juvenile court. He contends that the district court abused its discretion “by giving a
disproportionate amount of weight to the nature and circumstances of the offense and failing to
give adequate weight to [Zuniga’s] age, immaturity, lack of criminal history, and role in the present
offense[s].” Brief for appellant at 8. The State contends that the district court considered all of the
statutory factors, gave a detailed analysis of its decision to retain jurisdiction, and did not abuse its
discretion in denying Zuniga’s motion to transfer his case to the juvenile court.
Neb. Rev. Stat. § 43-246.01(3) (Reissue 2016) grants concurrent jurisdiction to the juvenile
court and the county or district courts over juvenile offenders who (1) are 11 years of age or older
and commit a traffic offense that is not a felony or (2) are 14 years of age or older and commit a
Class I, IA, IB, IC, ID, II, or IIA felony. Actions against these juveniles may be initiated either in
juvenile court or in the county or district court. In the present case, the allegations against Zuniga
placed him within this category of juvenile offenders, and the State filed the charges against Zuniga
in the district court.
When an alleged offense is one over which both the juvenile court and the criminal court
can exercise jurisdiction, a party can move to transfer the matter. For matters initiated in criminal
court, a party can move to transfer the case to juvenile court pursuant to Neb. Rev. Stat.
§ 29-1816(3) (Supp. 2021). In the instant case, when Zuniga moved to transfer his case to juvenile
court, the district court conducted a hearing pursuant to § 29-1816(3)(a), which subsection requires
consideration of the following factors set forth in Neb. Rev. Stat. § 43-276(1) (Cum. Supp. 2020):
(a) The type of treatment such juvenile would most likely be amenable to; (b) whether there
is evidence that the alleged offense included violence; (c) the motivation for the
commission of the offense; (d) the age of the juvenile and the ages and circumstances of
any others involved in the offense; (e) the previous history of the juvenile, including
whether he or she had been convicted of any previous offenses or adjudicated in juvenile
court; (f) the best interests of the juvenile; (g) consideration of public safety; (h)
consideration of the juvenile’s ability to appreciate the nature and seriousness of his or her
conduct; (i) whether the best interests of the juvenile and the security of the public may
require that the juvenile continue in secure detention or under supervision for a period
extending beyond his or her minority and, if so, the available alternatives best suited to this
purpose; (j) whether the victim agrees to participate in restorative justice; (k) whether there
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is a juvenile pretrial diversion program established pursuant to sections 43-260.02 to
43-260.07; (l) whether the juvenile has been convicted of or has acknowledged
unauthorized use or possession of a firearm; (m) whether a juvenile court order has been
issued for the juvenile pursuant to section 43-2,106.03; (n) whether the juvenile is a
criminal street gang member; and (o) such other matters as the parties deem relevant to aid
in the decision.
The customary rules of evidence shall not be followed at such hearing and, “[a]fter considering all
the evidence and reasons presented by both parties, the case shall be transferred to juvenile court
unless a sound basis exists for retaining the case in county court or district court[.]” See
§ 29-1816(3)(a).
As the Nebraska Supreme Court has explained, in conducting a hearing on a motion to
transfer a pending criminal case to juvenile court, the court should employ “a balancing test by
which public protection and societal security are weighed against the practical and
nonproblematical rehabilitation of the juvenile.” State v. Stevens, 290 Neb. 460, 465, 860 N.W.2d
717, 725 (2015). “In order to retain the proceedings, the court need not resolve every factor against
the juvenile, and there are no weighted factors and no prescribed method by which more or less
weight is assigned to a specific factor.” Id. “The burden of proving a sound basis for retention lies
with the State.” Id.
1. FACTORS FAVORING RETENTION
The district court reviewed and analyzed each of the factors contained in § 43-276(1). After
reviewing the entirety of that order, we would classify the following factors as factors the district
court found weighed in favor of the district court retaining jurisdiction over Zuniga.
(a) § 43-276(1)(a) - Type of Treatment Amendable to Juvenile
The district court found that Zuniga’s age “does not allow for him to be supervised on
probation for a lengthy period of time in Juvenile Court. Due to the seriousness of the charges and
the more intensive supervision that can be provided in District Court, this case would be more
appropriately resolved in District Court.”
(b) § 43-276(1)(b) - Evidence of Violence in Alleged Offenses
The district court stated that
The alleged offenses involve premeditated armed robbery where strangers were
lured to a meeting point and struck multiple times with a firearm. [Zuniga] admitted that
he participated in the robberies and admitted that he drove to the location knowing what
was going to happen.
Any offense involving a firearm is an inherently violent and dangerous crime
toward another. The Edgewood shooting demonstrates that [Zuniga’s] friends were willing
to use their firearms during the commission of these robberies. Either of these alleged
offenses could have resulted in a homicide. This factor weighs in favor of the State.
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(c) § 43-276(1)(c) - Motivation for Commission of Offense
The district court found that
[t]here is evidence that the robberies or “licks” were done to get money to buy and
then sell marijuana. Another motivation for the offenses is self-aggrandizement as
demonstrated by the social media posts showing [Zuniga] with large amounts of cash and
marijuana. [Zuniga] knew his actions were wrong and proceeded anyway, making these
offenses criminally motivated and a serious display of dangerous and anti-social behavior.
(d) § 43-276(1)(d) - Age of Juvenile and Others Involved
The court noted that Zuniga was born in September 2004, which made him 16 years old at
the time of the alleged offenses and 17 years old at the time of the hearing on the motion to transfer.
The court further noted that two of Zuniga’s known associates who had “operat[ed] under the same
Snapchat robbery plan, were involved in the Edgewood shooting which involved life-threatening
injuries to two victims.”
(e) § 43-276(1)(e) - Previous History of Juvenile
The court noted that although Zuniga had not been previously adjudicated in the juvenile
court, “[h]is prior law enforcement contacts involved an assault upon another juvenile and
shoplifting.”
(f) § 43-276(1)(f) - Juvenile’s Best Interests
The court found that
[i]t would be in [Zuniga’s] best interest[s] to recognize the seriousness of his offenses and
change his behavior. Hopefully, this could be accomplished by [Zuniga] being on
probation. However, if sentenced to probation in Juvenile Court, it is unclear whether
supervision would be intensive enough and whether two years would be long enough to
change his behavior.
(g) § 43-276(1)(g) - Consideration of Public Safety
The district court found that
[Zuniga’s] crimes show that he is a danger to the public. These armed robberies
involved complete strangers who were lured to a site and then ambushed to obtain their
cash and other property. [Zuniga] continued to associate with the others involved in the
robberies after they had been completed and after he knew they had been involved in the
Edgewood shooting. His friends, [B.W.] and [X.G.], were contacted by the police gang
unit after the Edgewood shooting. [Zuniga’s] history with firearms and his association with
possible gang members all carry risks to public safety while he is in the community without
intense supervision.
[Zuniga] called his mother to testify on his behalf at the hearing. [His mother]
testified that [Zuniga] lives with her at her home with her three other children, ages 10, 6,
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and 2 months. She admitted that she knows [Zuniga’s] father has a criminal record and has
been to prison for drug offenses, but she allows [Zuniga] to go with his father whenever he
wants to. She confirmed that [Zuniga’s] good friends are [B.W.] and [X.G.] This case is
the first time she’s aware of that [Zuniga] had been involved in a crime. After [Zuniga] was
assaulted in October of 2021, she [was] not aware that [Zuniga] and his father refused to
cooperate with the police. She believed that [Zuniga] didn’t know who attacked him.
(h) § 43-276(1)(h) - Consideration of Juvenile’s Ability to
Appreciate Nature and Seriousness of His Conduct
The court stated that “[Zuniga] will be forced to deal with the consequences of his serious
behavior if his case is maintained in District Court. There is no indication that [Zuniga] does not
have the requisite mental faculties to allow him to do so.”
(i) § 43-276(1)(i) - Best Interests and Security of Public
The district court found that Zuniga would turn 19 in September 2023 which left about 20
months remaining under juvenile court jurisdiction. The court stated that
[t]his factor is significant in this case as it is clear that the juvenile court would have a
limited amount of time to work with [Zuniga], if or when there was an adjudication.
If kept in District Court, the Court could have jurisdiction over [Zuniga] for five
years on a probationary sentence or longer if incarcerated. In this case, due to the serious
nature of the offenses, an extended period of supervision and availability of incarceration
is warranted.
There is no evidence before the court that there are any facilities uniquely available
to the juvenile court for treatment and rehabilitation of [Zuniga]. To the contrary, Neb.
Rev. Stat. § 29-2204(5) provides: “Except when a term of life is required by law, whenever
the defendant was under eighteen years of age at the time he or she committed a crime for
which he or she was convicted, the court may, in its discretion, instead of imposing the
penalty provided for the crime, make such disposition of the defendant as the court deems
proper under the Nebraska Juvenile Code.”
Thus, the dispositional alternatives available through the Nebraska Juvenile Code
are equally available to this court as they would be through the juvenile court, including
commitment to the Office of Juvenile Services.
(j) § 43-276(1)(l) - Conviction or Acknowledged
Unauthorized Use or Possession of Firearm
The court stated that
robbery offenses carry mandatory minimum sentences because of the seriousness of the
crime. Here [Zuniga] and/or his friends obtained guns illegally and used them to threaten,
harm or coerce victims into giving them cash and property. [Zuniga] has acknowledged
that he knew what was intended to happen prior to his participation.
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We note that the district court erroneously stated that the robbery offenses, which are Class
II felonies, carry mandatory minimum sentences. See Neb. Rev. Stat. § 28-324 (Reissue 2016)
(robbery; penalty). Class II felonies are punishable by a minimum of 1 year of imprisonment and
a maximum of 50 years’ imprisonment. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020).
(k) § 43-276(1)(n) - Gang Membership
The district court found that
Crimes committed by documented or associated gang members should be taken
seriously. The crimes committed here are evidence of criminal gang activity. Both [B.W.]
and [X.G.], [Zuniga’s] friends, were contacted by the police gang unit concerning the
firearms used in the Edgewood shooting, which were most likely the same firearms used
in the crimes in this case.
(l) § 43-276(1)(o) - Other Relevant Matters
The court found that
[t]he charges [Zuniga] currently faces could subject him to incarceration for up to 100
years. Each count of Robbery carries a mandatory minimum sentence of one (1) year with
a maximum sentence of fifty (50) years. From the evidence, it is clear to the court that the
length of time the juvenile court would have to work with [Zuniga] is likely too short.
Those same time constraints would not be imposed on this Court.
As indicated earlier, this [Court] would have available to it all of the options that
the juvenile court has as well as the time necessary to implement and refine those options.
This is extremely significant to this Court in making the decision as to whether this case
should be transferred.
The Nebraska Legislature has mandated that the Nebraska Juvenile Code is to be
construed “[t]o remove juveniles who are within the Nebraska Juvenile Code from the
criminal justice system whenever possible and to reduce the possibility of their committing
future law violations through the provision of social and rehabilitative services to such
juveniles and their families.” Neb. Rev. Stat. § 43-246(3). The Court has considered this
intent in its analysis. The Court also considers the seriousness of the offenses alleged in
this case, which, while not a determining factor in this analysis, is certainly significant.
We again note that the district court erroneously stated that the robbery offenses, which are
Class II felonies, carry mandatory minimum sentences. See § 28-324. Class II felonies are
punishable by a minimum of 1 year of imprisonment and a maximum of 50 years’ imprisonment.
§ 28-105.
2. FACTORS FAVORING TRANSFER
The district court appeared to find only one factor favored transfer of this matter to the
juvenile court. That was pursuant to § 43-276(1)(m) governing whether a prior juvenile court order
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had been issued pursuant to Neb. Rev. Stat § 43-2,106.03 (Reissue 2016), the juvenile court noted
that no juvenile court order had been issued for Zuniga. The nonexistence of such an order would
support a request to transfer to the juvenile court.
3. NEUTRAL FACTORS
The district court’s order identified two factors in its analysis that it appeared to consider
neutral. Those are: (1) § 43-276(1)(j) -- whether the victim or juvenile agree to participate in
restorative justice; the district court noted that there was no real possibility of mediation as
the victims were “complete strangers” and “the violence was unprovoked”; and (2)
§ 43-276(1)(k) -- whether a juvenile pretrial diversion program was established; the court noted
that the charges were ineligible for juvenile or adult diversion.
4. NO ABUSE OF DISCRETION
Although the district court’s analysis of factors under § 43-276(1) reveals only one factor
favoring transfer to the juvenile court, there is no arithmetical computation or formula required in
a court’s consideration of the statutory criteria or factors. State v. Esai P., 28 Neb. App. 226, 942
N.W.2d 416 (2020). There are no weighted factors, that is, no prescribed method by which more
or less weight is assigned to each factor specified by statute. Id. It is a balancing test by which
public protection and societal security are weighed against the practical and nonproblematical
rehabilitation of the juvenile. Id. “This means that a trial court must balance a juvenile’s
amenability to complete rehabilitation by age 19 against the public’s safety in the event that
rehabilitation fails or requires more time than anticipated.” State v. Leroux, 26 Neb. App. 76, 118,
916 N.W.2d 903, 929 (2018).
As we often state in our review of juvenile transfer cases, these are difficult decisions for
the trial court and for this court on appeal because of the young age of the defendants. However, a
young age by itself does not support a transfer to the juvenile court. See State v. Esai P., supra
(setting forth cases of defendants as young as 14 or 15 years of age in which criminal proceedings
were retained in district court because factors favoring public protection outweighed juvenile’s
young age, such as involvement with gangs and guns, violent nature of crime, or unlikely success
of rehabilitation before juvenile reaches age of majority).
Zuniga argues that, in performing its balancing analysis, the district court simply did not
provide sufficient weight to his age, lack of maturity, motivation to commit the crime, his lack of
criminal history, and his actual role in the offenses. But in its detailed order, it is clear that the
district court did consider those factors. As stated in the order, the district court also considered,
and was properly concerned with, the nature of the alleged criminal conduct, the safety of the
public, and Zuniga’s need for extensive supervision over a period of years and the limited time
available to the juvenile court to work with him. Zuniga admitted that he knew about, and
participated in, the robberies both of which involved firearms, and that the motivation of the
robberies was to obtain money to buy, then sell, marijuana. The court noted that Zuniga had prior
law enforcement contacts involving an assault on another juvenile and shoplifting, and that it was
in Zuniga’s best interests to recognize the seriousness of his behavior and change his behavior
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which would likely require more than the two years he would have under the supervision of the
juvenile court. The court further stated that the incidents here provided evidence of gang activity.
After reviewing the entirety of the record and the district court’s order, we believe this case
falls within the category of the “theme” this court expressed in State v. Leroux, supra. After
summarizing numerous cases and their holdings, which we will not repeat here, this court held:
The theme evident in the cases discussed above is this: When a juvenile commits a
violent crime, the trial court is not likely to grant a request to transfer to the juvenile court
because (1) the juvenile court will lose jurisdiction when the defendant turns 19 years of
age which may not allow sufficient time for the complete rehabilitation of the juvenile, and
therefore retention is necessary to ensure public safety, and (2) there is no secure youth
detention facility available which can safely provide the appropriate services and treatment
for a juvenile who has committed a more serious offense. This means that a trial court must
balance a juvenile’s amenability to complete rehabilitation by age 19 against the public’s
safety in the event that rehabilitation fails or requires more time than anticipated. The trial
court’s decision carries the consequence that if the decision is wrongly made, we have
either missed an opportunity to rehabilitate a juvenile outside the negative influences of
adult incarceration or failed to adequately incarcerate a potentially dangerous juvenile who
will go on to commit further violent crimes. . . .
While in some of the cases discussed above, the aggressive, violent, or premeditated
nature of the offense combined with the mental health or historic behaviors of the juvenile
were such that it was clear that the services, facility options, and age limit of the juvenile
system could not safely house and rehabilitate the juvenile before the juvenile court would
lose jurisdiction. In the instant case, it is less clear. Although the district court found many
of the statutory factors favored transferring [the defendant] to the juvenile court, the court
weighed more heavily its concerns for public safety, namely, that the time left to treat [the
defendant] under the juvenile court’s jurisdiction would not be sufficient and the security
and services at the YRTC would not be adequate for someone convicted of more serious
crimes, such as the ones at issue here.
State v. Leroux, 26 Neb. App. 76, 118-19, 916 N.W.2d 903, 929 (2018).
The district court similarly concluded here that in light of the serious, violent nature of the
alleged crimes involved, “[t]here is no evidence before the court that there are any facilities
uniquely available to the juvenile court for treatment and rehabilitation of [Zuniga].” And “. . . if
sentenced to probation in Juvenile Court, it is unclear whether supervision would be intensive
enough and whether two years would be long enough to change his behavior.” The district court
clearly weighed the issues of rehabilitation against the threat of public safety here finding that
“[Zuniga’s] crimes show that he is a danger to the public. These armed robberies involved
complete strangers who were lured to a site and then ambushed to obtain their cash and other
property.” And “[Zuniga’s] history with firearms and his association with possible gang members
all carry risks to public safety while he is in the community without intense supervision.” After
weighing these factors and the others previously discussed here, the district court ultimately
concluded that Zuniga’s motion to transfer should be denied.
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Although we might differently categorize certain factors determined by the district court
as weighing against transfer, we cannot say the court’s basis for retaining jurisdiction over Zuniga
was not supported by appropriate evidence. When a district court’s basis for retaining jurisdiction
over a juvenile is supported by appropriate evidence, it cannot be said the court abused its
discretion in refusing to transfer the case to juvenile court. State v. Leroux, supra. Given the
evidence in this case, the majority of which supports the State’s burden of proving a sound basis
for retention, we cannot say the district court abused its discretion in declining to transfer Zuniga’s
case to juvenile court.
VI. CONCLUSION
Finding no abuse of discretion by the district court in its decision to retain jurisdiction over
Zuniga, we affirm the district court’s order denying Zuniga’s motion to transfer the proceedings
to juvenile court.
AFFIRMED.
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