J.N. v. Superior Court of Orange Cnty.

• Decision Date: 22 May 2018
• Docket Number: G055499
• Citation: 233 Cal.Rptr.3d 220,23 Cal.App.5th 706
• Court: California Court of Appeals Court of Appeals
• Parties: J.N., Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; The People, Real Party in Interest.

23 Cal.App.5th 706

233 Cal.Rptr.3d 220

J.N., Petitioner,

v. The SUPERIOR COURT of Orange County, Respondent;The People, Real Party in Interest.

G055499

Court of Appeal, Fourth District, Division 3, California.

Filed May 22, 2018

Denise Gragg, Associate Defender, and Kenneth S. Morrison, Deputy Associate Defender, for Petitioner, J.N.

Tony Rackauckas, District Attorney, and Holly M. Woesner, Deputy District Attorney, for Real Party in Interest.

No appearance by Respondent.

OPINION

O'LEARY, P.J.

INTRODUCTION

Petitioner, J.N., who was 17 years old at the time of the alleged offenses, was charged with felonies in the superior court.¹ After the passage of Proposition 57, the Public Safety and Rehabilitation Act of 2016, the superior court suspended criminal proceedings and certified J.N. to the juvenile court to determine whether he should be treated in the juvenile court system or prosecuted as an adult. ( Welf. & Inst. Code, §§ 604 [certification process], 707, subd. (a)(2) [juvenile court to decide whether minor should be tried as adult or juvenile]; all further statutory references are to the Welfare and Institutions Code unless otherwise indicated.) The juvenile court determined J.N. was not suitable for treatment in the juvenile court. J.N. filed a petition for a writ of mandate/prohibition, arguing the court abused its discretion in applying section 707.

In making its decision whether the minor should be tried as an adult, the court must consider five statutory factors (§ 707, subd. (a)(2) ). Relevant here are two factors, the circumstances and gravity of the charged offense, and whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction. We find the juvenile court's determination J.N. was not suitable for treatment in the juvenile court was not supported by substantial evidence and was, therefore, an abuse of discretion.² The petition is granted.

PROPOSITION 57 & SECTION 707

In 2000, the electorate passed Proposition 21, making changes in the way juveniles are charged with serious offenses. Prosecutors were given the authority to "direct file" a felony complaint in adult court, eliminating the juvenile court's ability to determine at an early stage of the proceedings whether the juvenile should be treated in the juvenile court system or transferred to adult court. (§ 707, former subd. (d), as amended by initiative measure (Prop. 21, § 26, approved by voters. Primary Elec. (Mar. 7, 2000), eff. Mar. 8, 2000, repealed by Prop. 57, § 4.2, as approved by voters, Gen. Elec. (Nov. 8, 2016), eff. Nov. 9, 2016).) The voters apparently rethought their votes on Proposition 21 and passed Proposition 57 at the November 8, 2016, general election. ( People v. Cervantes (2017) 9 Cal.App.5th 569, 596, 215 Cal.Rptr.3d 174 ( Cervantes ) ["Proposition 57 was designed to undo Proposition 21"], rev. granted May 17, 2017, S241323.) Proposition 57's amendments to section 707 went into effect the next day. ( People v. Superior Court (Walker ) (2017) 12 Cal.App.5th 687, 691, 220 Cal.Rptr.3d 1, disapproved on other grounds in People v. Superior Court (Lara ) 4 Cal.5th 299, 314, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

Proposition 57 terminated the prosecutor's ability to file a criminal complaint against a juvenile in the criminal court without first obtaining authority from a juvenile court judge to treat the juvenile as an adult. "Proposition 57 effectively guarantees a juvenile accused felon a right to a fitness hearing before he or she may be sent to the criminal division for prosecution as an adult." ( Cervantes , supra , 9 Cal.App.5th at p. 597, 215 Cal.Rptr.3d 174.)

When 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, the prosecutor "may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction." (§ 707, subd. (a)(1).) Upon the making of such a motion, the juvenile court must order the probation department to prepare "a report on the behavioral patterns and social history of the minor." (Ibid .) At the hearing on the prosecution's motion, the court considers the probation report and evidence submitted by the minor. (§ 707, subd. (a)(2).) In deciding whether to treat the minor in the juvenile court system or transfer the matter to the criminal court, the court must consider five factors listed in section 707, subdivision (a)(2). (Ibid .) Those factors are the minor's degree of criminal sophistication, whether the minor can be rehabilitated in the time before the juvenile court would lose jurisdiction over the minor, the minor's prior history of delinquency, the success of prior attempts by the juvenile court to rehabilitate the minor, and the circumstances and gravity of the charged offense. (§ 707, subd. (a)(2)(A)(i)-(E)(i).) Contrary to former subdivision (c) of section 707, which made a minor presumptively unsuitable for treatment under the juvenile court system if charged with an offense listed in subdivision (b) of section 707 (§ 707, former subd. (c); repealed by Prop. 57, § 4.2, eff. Nov. 9, 2016), the new law contains no such restriction. "If the court orders a transfer of jurisdiction, the court shall recite the basis for its decision in an order entered upon the minutes." (§ 707, subd. (a)(2).)

FACTS OF THE ALLEGED OFFENSE

J.N. is charged with a murder, but the evidence presented at the hearing in juvenile court established he did not kill anyone. The murder was committed while J.N. and two other minors, including the killer, were tagging (making graffiti) in a rival gang's claimed territory. The killing occurred when the three minors were surprised by an adult rival gang member. The rival approached S.C., who pulled out a gun to scare the man. Undeterred, the man grabbed the gun in S.C.'s hand and a struggle ensued. Shots were fired as they wrestled over the gun. J.N. and the other minor stood frozen³ nearby.

PROCEDURAL FACTS

On February 26, 2016, the prosecutor filed a felony complaint charging J.N. with crimes alleged to have occurred on September 7, 2014. He was charged with one count each of murder ( Pen. Code, § 187, subd. (a) ), vandalism for the benefit of a criminal street gang ( Pen. Code, §§ 186.22, subd. (d), 594, subds. (a), (b)(2)(A) ), and active participation in a criminal street gang ( Pen. Code, § 186.22, subd. (a) ). The complaint further alleged the murder and vandalism were committed for the benefit of a criminal street gang ( Pen. Code, § 186.22, subd. (b)(1) ), that J.N. vicariously discharged a firearm causing death to a non-accomplice ( Pen. Code, § 12022.53, subds. (d), (e)(1) ), and charged a special circumstance of murder for the benefit of a criminal street gang ( Pen. Code, § 190.2, subd. (a)(22) ).

Three days later, the prosecutor filed an amended felony complaint naming J.N., S.C., and A.E. as defendants. The charging document noted it was directly filed in the criminal court. The original felony complaint, wherein J.N. was the only named defendant, did not contain the "direct file" designation. It seems the filing deputy did not realize J.N. was a minor at the time of the charged offenses, given more than 17 months passed between the date of the incident and the filing of the original felony complaint. Each of the defendants was a minor on the alleged date of the crimes.

The amended complaint re-alleged the same substantive offenses charged in the original complaint. It alleged all three minors committed the murder for the benefit of a criminal street gang ( Pen. Code, § 186.22, subd. (b)(1) ), J.N. and A.E. vicariously discharged a firearm causing death ( Pen. Code, § 12022.53, subds. (d), (e)(1) ), S.C. personally discharged a firearm causing death ( Pen. Code, § 12022.53, subd. (d) ), and all three minors committed a special circumstance, murder for the benefit of a criminal street gang ( Pen. Code, § 190.2, subd. (a)(22) ).

On April 29, 2016, J.N. appeared in the superior court, entered not guilty pleas, and denied the special allegations. After the public defender and the alternate defender declared conflicts, the court appointed the associate defender to represent J.N.

On November 8, 2016, the electorate passed Proposition 57, the Public Safety and Rehabilitation Act of 2016. One of the five expressly stated goals of the proposition was to "[r]equire a judge, not a prosecutor, to decide whether juveniles should be tried in adult court." (Ballot Pamp., Gen. Elec. (Nov. 8, 2016), Proposition 57, § 2, p. 141.)

On February 28, 2017, the parties informed the superior court J.N. was 17 years old at the time of the alleged offenses. The superior court suspended criminal proceedings and certified J.N. to the juvenile court to determine whether he should be treated in the juvenile court system or prosecuted as an adult. ( §§ 604, 707, subd. (a)(2).)

The juvenile court began the section 707 hearing on May 16, 2017, and concluded it on June 1, 2017. The court found J.N. suitable under three of the five factors. In making the ultimate suitability finding, the court noted it was giving "a lot of weight" to the evidence of trauma to J.N., the lack of an appropriate role model, and other facts favorable to J.N. The court commented: "This homicide is not as serious as some of the others that this court sees but there is a heavy degree of gravity there, so what I have to do then is decide, given that gravity and given the amount of time we have to rehabilitate, do those factors outweigh the other factors that seem to weigh in his favor and that's where the court finds itself with a difficult decision."

The court found the crime was not "particularly sophisticated" because the shooting only occurred as the result of the gang rival's aggressiveness and attempt to take the gun away from S.C. On the issue of the gravity of the offense, the court stated shooting and killing an unarmed person was the gravest of offenses, but conceded the homicide was not as serious as a...