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When Can Juveniles Be Tried as Adults?
By Amalia Meza

When can a juvenile under the age of 18 be tried as an adult? The answer became more complicated when the voters approved Proposition 21 in 2000, allowing prosecutors to directly file charges against some juveniles in Superior Court without judicial approval. For many juveniles, however, court approval is still sought, and it is these "fitness" hearings that are the subject of this article.

The object of this article and self-study test is to analyze when and how juveniles can be tried as adults. Readers will learn about the types of cases in which a fitness hearing is not used and the general procedural requirements of fitness hearings, including the burdens of proof and showings required, and the consequences of direct and indirect filings in adult court.

Overall, the adult criminal system offers persons more rights and procedural protections than the juvenile court system. For example, in the juvenile system there is no right to trial by jury and no right to be released on bail. People v. Superior Court (Carl W.), 15 Cal.3d 271 (1975). On the other hand, sentences in juvenile court are far less harsh than in adult court, with juvenile court placing primary emphasis on rehabilitation instead of punishment. See In re Carlos E., 127 Cal.App.4th 1529 (2005). When a juvenile is charged as an adult, all the procedural rules and potential sentences applicable to adults apply to the juvenile in adult court. See Welfare and Institutions Code Section 707(d)(4). Notable exceptions are that juveniles cannot be given the death penalty or life imprisonment without parole for nonhomicide offenses. See Penal Code Section 190.5(a); Roper v. Simmons, 543 US 551 (2005); Graham v. Florida, 130 S.Ct. 2011 (2010).

There are three procedures for filing charges in criminal court against a person who committed his or her crime before the age of 18: mandatory direct filing, discretionary direct filing, and indirect filings after a judicial determination of unfitness. The first two procedures were enacted by Proposition 21 and were held to be constitutional in Manduley v. Superior Court, 27 Cal.4th 537 (2002).

For mandatory direct filing, the prosecutor must file charges in criminal court when the minor is 14 years of age or older and personally committed either murder with special circumstances or specified sexual offenses. Welfare and Institutions Code Section 602(b).

For discretionary filing, the prosecution can, but does not have to, file a case directly in criminal court in two situations. One is when the minor is 16 years or older and is accused of committing a felony listed in Welfare and Institutions Code Section 707(b), including robbery and carjacking. Welfare and Institutions Code Section 707(d)(1). The second is when the minor is 14 years or older and he or she is accused of an offense punishable by death or life in prison or accused of personally using a firearm in the commission or attempted commission of felony; or when the minor is charged with a 707(b) offense and the minor had a prior 602(b) offense, committed the current crime on behalf of a gang, committed a hate crime, or committed a crime against a disabled or elderly victim. Welfare and Institutions Code Section 707(d)(2).

The traditional way for a juvenile to be tried as an adult is after a judicial determination that the child is unfit to be dealt with under juvenile law. Instead of filing directly in criminal court, the prosecution exercises its discretion by filing the case in juvenile court and asking a juvenile court judge to decide whether the minor is fit to remain in the juvenile system. The prosecution is in effect asking the court to make the call.

The prosecution begins by filing the petition in juvenile court against a minor, who is eligible to be transferred to Superior Court, and then filing a motion in juvenile court, asking the court to find that the juvenile is not fit to remain in juvenile court. After a motion for a fitness hearing is filed, the court may not take an admission to the petition until the fitness issue is resolved. Moreover, the prosecutor may not, absent changed circumstances, dismiss the petition or threaten to dismiss the petition and refile the charges directly as an adult. Welfare and Institutions Code Section 606. The reason for this rule is to prevent the prosecution from strong-arming a plea in juvenile court under threat of refiling the charges in criminal court

Before the fitness hearing, a probation officer must prepare a social study report that includes information relevant to determining whether the juvenile is amenable to care and treatment in juvenile court; specifying the training programs available through facilities of the juvenile court; addressing designated statutory-fitness criteria; and containing statements of the victim, victim's parent or guardian if victim is minor, or if the victim has died, the victim's next of kin. Welfare and Institutions Code Section 707(a), (e); California Rule of Court 5.678. The report may also include the family and legal history of the minor; the minor's statement; statements of parents or guardians; and statements of social workers, probation, and parole agents regarding the potential for rehabilitation. The study will also contain the probation officer's recommendation. See California Rule of Court 5.768(b).

The minor can request that a prima facie hearing be conducted before the actual fitness hearing. At this hearing, the prosecution has the burden of making a prima facie showing that the minor committed the predicate serious offense or circumstances giving rise to a transfer to criminal court. The prosecution must produce the preparer of the social study report, but percipient witnesses are not required, and hearsay is admissible. The minor can cross-examine witnesses or the preparer of the report, and if incriminating statements are offered, the minor may move to suppress. The minor may also present evidence to rebut the prima facie showing, but no affirmative defenses, like self-defense or alibi, are allowed. See Edsel P. v. Superior Court, 165 Cal.App.3d 763 (1985); California Rule of Court 5.772(b).

If no prima facie showing is made, the burden is on the prosecution to establish that the minor should be transferred to adult court. If a prima facie showing is made, the burden is on the minor to show that he or she is fit to remain in juvenile court. The prima facie showing and fitness hearing can be conducted at the same time. Marcus W. v. Superior Court, 98 Cal.App.4th 36 (2002).

At the fitness hearing, the charges determine who has the burden of proof. If the minor is 16 years of age or older and the alleged crime is not listed in Welfare and Institutions Code Section 707(b), the prosecution has the burden of showing that the minor is unfit. Welfare and Institutions Code Section 707(a)(1).

If the minor is 14 years of age or older and the offense alleged is listed in Welfare and Institutions Code Section 707(b), the minor has the burden of showing that he or she is fit. Welfare and Institutions Code Section 707(c). Also, if the minor is 16 years of age or older and is charged with any felony and has been previously adjudged a ward of the juvenile court for two or more prior felonies since the age of 14, the minor has the burden of showing that he or she is fit. Welfare and Institutions Code Section 707(a)(2). The burden does not shift to the minor if the minor is alleged to only have attempted to commit one of the offenses in Welfare and Institutions Code Section 707(b). David P. v. Superior Court, 127 Cal.App.3d 417 (1982).

The critical question at the fitness hearing is whether the minor is amenable to the care, treatment, and training programs available through the juvenile court. Welfare and Institutions Code Section 707(a)(1). The court must make this determination based on the following five statutory fitness criteria: degree of criminal sophistication; rehabilitation before juvenile court loses jurisdiction; previous delinquent history; results of prior attempts to rehabilitate; and circumstances and gravity of the offense. Welfare and Institutions Code Section 707(a).

When the prosecution has the burden to show that the minor is not amenable, the presumption that the minor is fit may be rebutted based on the evaluation of any one or a combination of the five statutory criteria by a preponderance of the evidence. Even if the court determines that one or more of the five criteria have been met, it may nevertheless find that the minor is amenable to care, treatment, and training programs available through juvenile court, and find that the minor is fit, if it makes specific findings of extenuating or mitigating circumstances when evaluating each relevant criteria. California Rule of Court 5.770(e).

When the minor has the burden to show that he or she is fit, the minor has the heavy burden of establishing fitness under each of the five criteria based on a preponderance of evidence (California Rule of Court 5.770(a)), and the court must make findings on each of the five criteria. The court may consider extenuating or mitigating circumstances, such as the minor's role in the crime as an aider and abettor, provocation by a victim, the minor's developmental disability, history of bad blood between the victim and the minor, and crimes committed by the victim against the minor. California Rule of Court 5.772(c). Detailed findings by the court under each of the five criteria are required to establish that the minor has overcome the burden. In re Rene C., 138 Cal.App.4th 1 (2006).

At the beginning of the fitness hearing, the court should state whether the hearing is being conducted under Welfare and Institutions Code Sections 707(a)(1), 707(a)(2), or 707(c), and based on the charges, whether there is a presumption of fitness or unfitness and who has the burden of proof. As with Edsel P. hearings, the case may be submitted on reports and argument; hearsay and opinion evidence are admissible. However, both the prosecution and defense frequently call witnesses to testify about the offense, the minor's background, and possibility for rehabilitation. As in Edsel P. hearings, affirmative defenses are not relevant: the only issue is whether the minor is fit to remain in the juvenile system under the five criteria. At the conclusion of the hearing, the court renders a decision as to whether the presumption has been rebutted and makes findings regarding each of the five criteria.

If the court finds the minor fit, it sets the case for a jurisdiction hearing to determine if the minor should be found a ward of the juvenile court. California Rule of Court 5.770(f)(1), 5.772(g)(2). If the minor is found unfit, the court must transfer the case to another court for prosecution as an adult. California Rule of Court 5.770(f)(1), 5.772(g)(2). If the case is transferred, the court should set bail and determine where the minor is to be detained pending trial. Ordinarily a minor will remain in juvenile hall unless the court makes a finding that the minor's presence in the hall is detrimental to other minors and public safety is endangered. California Rule of Court 5.770(f)(2), 5.772(g)(1). The court must also state that the petition must be dismissed without prejudice upon the minor's arraignment, at which point the case proceeds according to laws applicable to a criminal case. California Rule of Court 5.770(f)(2), 5.772(g)(1).

After a finding of unfitness, a minor is still subject to an adult sentence even if he or she is not convicted of the predicate offense that gave rise to the transfer. People v. Self, 63 Cal.App.4th 58 (1998). That means that a minor may not be transferred back to juvenile court for disposition of less serious offenses. On the other hand, if the prosecutor has directly filed a petition in adult court without a finding of unfitness and the minor is found not guilty of the predicate offense and only convicted of less serious offenses, the case can be remanded back to juvenile court for a juvenile disposition unless the prosecution brings a motion to declare the minor unfit. At the fitness hearing, the minor is presumed fit, and the prosecutor has the burden of establishing unfitness. If the prosecution satisfies this burden, the minor can then be given an adult sentence.

Amalia Meza is a judge with the San Diego County Superior Court.

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