When can a minor be tried in adult criminal court in California?

In most cases, when a minor is accused of committing a crime in California the minor is adjudicated within the juvenile delinquency system.  But in serious cases, the law allows (and sometimes requires) the minor be tried as an adult in adult criminal court.

If the prosecutor wants to charge a minor as an adult, whether or not the minor can remain in juvenile court comes down to what a judge decides during the minor's fitness hearing.

If the judge decides that the minor is "fit" for the juvenile system, the minor stays in juvenile court.  If not, the minor gets transferred to adult court.

A minor tried in adult court faces the prospect of a lengthy sentence in adult prison with adult offenders.  At worst, a minor adjudicated within the juvenile system faces commitment to the California Youth Authority until the age of 25.

In this article, our California Juvenile Criminal Defense Attorneys discuss the circumstances when a minor can be tried in adult criminal court in California.1 We cover:

1. What is a fitness hearing in California juvenile court?

1.1. Fitness hearing criteria

1.2. Prima facie case

1.3. W&I Code 707(b) offenses

1.4. Extraordinary writ to challenge

2. When can the prosecutor "direct file" without a fitness hearing?

2.1. Direct files for minors 16 and older

2.2. Direct files for minors 14 and older

3. When MUST a minor be tried in adult criminal court?
4.  Can a minor get the death penalty or "LWOP" in California?

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.

If your child is detained in juvenile hall, please visit our related articles on Eastlake Juvenile Hall & Court, Los Padrinos Juvenile Hall & Court, Barry Nidorf (Sylmar) Juvenile Hall & Court, Court, Riverside Juvenile Hall and Orange County Juvenile Hall.

1. What is a fitness hearing in California juvenile court?

A fitness hearing is a legal proceeding where a juvenile court judge decides whether a minor who has been accused of violating a criminal law is "fit" for the juvenile court system.

The judge will look at five factors, including the seriousness of the alleged crime, to determine whether the minor is likely to benefit from the rehabilitative services of juvenile delinquency court.

If the judge decides that the minor won't benefit from those services, the minor gets transferred to adult court.

The prosecutor can initiate a fitness hearing when:

  • The minor is 16 years or older and is alleged to have committed any crime;2 OR
  • The minor is 16 years or older and is alleged to have committed a felony where the minor has previously been made a ward of the court and found to have committed two or more felony offenses while over the age of 14 (in which case the minor is presumed to be unfit for juvenile court);3 OR
  • The minor is over the age of 14 and is alleged to have committed an offense specified in W&I Code 707(b) (in which case the minor is presumed to be unfit for juvenile court).4

Prosecutors most commonly initiate fitness hearings in cases involving Section 707(b) offenses described below.

In terms of timing, the fitness hearing takes place between the detention hearing and the adjudication hearing.  We discuss those hearings in our related articles Detention Hearings in California Juvenile Cases and Adjudication Hearings (Trials) in California Juvenile Cases.

The prosecutor must give the minor five court days notice of the fitness hearing.5

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1.1. Fitness hearing criteria

In determining whether a minor is fit for juvenile court, the judge will evaluate the following five factors:

  1. The degree of criminal sophistication exhibited by the minor.
  2. Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.
  3. The minor's previous delinquent history.
  4. Success of previous attempts by the juvenile court to rehabilitate the minor.
  5. The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

The judge is allowed to consider extenuating or mitigating factors in making its evaluation.

When the minor is presumed to be unfit, in order to stay in juvenile court the minor must prove his or her amenability to juvenile treatment under each of the five criteria.

Let's look at a few examples:

Example:  Stacy is 16 years old.  She just got nabbed for shoplifting a pair of earrings at a store in Sherman Oaks.  Stacy has no criminal record and is a good student.

Technically, the prosecutor could initiate a fitness hearing under W&I Code 707(a) because shoplifting is a crime under California Penal Code 484 pc petty theft and Stacy is 16 years old.

But the prosecutor knows this is no case for adult court.  In fact, it barely stays in juvenile court.

Stacy makes one appearance at Barry Nidorf (Sylmar) Juvenile Hall & Court and the case gets diverted to probation under W&I Code 654.  So long as Stacy stays out of trouble, she will avoid a formal petition filing in the case.


Change the facts:  Elliot just turned 16.  He's arrested for gang-related carjacking and assault causing great bodily injury.  He's charged with violating California Penal Code 215 pc carjacking and California Penal Code 245(a)(1) pc ADW.

Because of the gang-involvement and the injuries sustained by the victim, the prosecutor alleges the following sentencing enhancements -- California Penal Code 186.22 pc criminal street gang enhancement and California Penal Code 12022.7 pc great bodily injury ("GBI").

This is not Elliot's first brush with the law.  He's already been made a ward of the court on two separate occasions, including for violating California Penal Code 243(d) pc battery causing serious bodily injury and California Penal Code 243.4 pc sexual battery.

The prosecutor could file directly against Elliot in adult court under W&I 707(d), but instead initiates a fitness hearing in Orange County Juvenile Hall.  Under W&I 707(c), Elliot is presumed to be unfit for juvenile court.

The judge at Orange County Juvenile Hall evaluates the five fitness criteria – the degree of criminal sophistication exhibited Elliot, whether Elliot can be rehabilitated prior to the expiration of juvenile court jurisdiction, Elliot's previous delinquent history, the success of previous attempts by the juvenile court to rehabilitate Elliot, and the gravity of the offenses alleged in the petition.

In the end, the judge transfers Elliot's case to adult court.  Elliot is simply unable to rebut the presumption of unfitness by showing that he's "amenable to the care, treatment, and training program available through the facilities of the juvenile court" under each of the five criteria.

1.2. Prima facie case

In cases where a minor is presumed unfit for juvenile court, the minor is entitled to ask that the prosecutor make a prima facie case as to the alleged felony violations.

This means the prosecutor must show at least probable cause that a violation of the law has occurred.6

"When a minor is presumed unfit for juvenile court, the minor must show he is amenable for treatment in the juvenile system with respect to each of the five fitness factors.  This can be especially challenging when it comes to the fifth factor - the gravity of the crime alleged.  A skilled juvenile attorney might be able to present mitigating evidence such as psychological reports as to the minor's mental state that tend to lessen the gravity of the crime.  In the end, the goal is to convince the judge that the minor and society will benefit from the rehabilitative services provided by the juvenile delinquency system."

1.3. W&I Code 707(b) offenses

Under California Welfare & Institutions Code Section 707(c), the prosecutor can initiate a fitness hearing when the minor is at least 14 years old and is charged with violating one of the offenses specified in Welfare & Institutions Code Section 707(b).

These are called the "Section 707(b) offenses."  They are:

  • Murder.
  • Arson causing great bodily injury or of an inhabited structure.
  • Robbery.
  • Rape with force, violence or threat of great bodily harm.
  • Sodomy by force, violence or threat of great bodily harm.
  • A lewd or lascivious act on a child under 14 with force, violence or threat of great bodily harm.
  • Oral copulation by force, violence or threat of great bodily harm.
  • Forcible sexual penetration.
  • Kidnapping for ransom.
  • Kidnapping for purposes of robbery.
  • Kidnapping with bodily harm.
  • Attempted murder.
  • Assault with a firearm or destructive device.
  • Assault by means of force likely to produce great bodily injury.
  • Discharge of a firearm into an inhabited or occupied building.
  • An offense described in Section 1203.09 of the Penal Code against a person who is over 60 or disabled.
  • An offense described in Penal Code Section 12022.5 personal use of a firearm or Penal Code 12022.53 pc 10-20-life use a gun and you're done.
  • A felony offense in which the minor personally used a weapon listed Penal Code Section 16590(a).
  • A felony offense described in Penal Code 136.1 pc dissuading a witness or Penal Code Section 137 bribery of a witness.
  • Manufacturing, compounding, or selling one-half ounce or more of a salt or solution of a controlled substance specified in Health & Safety 11055(e).
  • A violent felony, which also would constitute a felony violation of Penal Code 186.22(b) pc criminal street gang sentencing enhancement.
  • Escape, by the use of force or violence, from a county juvenile hall, home, ranch, camp, or forestry camp if great bodily injury is intentionally inflicted upon an employee of the juvenile facility.
  • Torture.
  • Aggravated mayhem.
  • Carjacking.
  • Kidnapping for purposes of sexual assault.
  • Kidnapping during a carjacking.
  • Penal Code Section 26100 pc drive-by-shooting.
  • Exploding a destructive device with intent to commit murder.
  • Voluntary manslaughter.7

1.4. Extraordinary writ to challenge

If a minor loses the fitness hearing, the minor will be transferred to adult criminal court, where the minor will be tried according to rules applicable to adults.

If the minor wants to challenge the fitness determination, the minor must file a writ petition no later than 20 days after the minor's first arraignment on the allegations that led to the unfitness determination.8

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If your child has been accused of an offense involving a firearm, it is critical that you contact an attorney skilled in California juvenile delinquency law.  The use of a firearm during the commission of a felony elevates it to a "Section 707(b)"offense.  When a minor is alleged to have committed a Section 707(b) offense, the prosecutor might file directly against the minor in adult court or initiate a fitness hearing to ask a judge to decide the issue.  In a fitness hearing, if the minor can't prove by a preponderance of evidence that the minor belongs in the juvenile system, then the minor will go to adult court and face an adult sentence.

2. When can the prosecutor "direct file" against a minor?

In some cases, the prosecutor can "direct file" against a minor in adult court without first having a fitness hearing.

2.1. Direct files for minors 16 and older

Under W&I Code 707(d)(1) and (d)(3), the prosecutor can direct file against the minor if the minor is 16 years of age or older and

  • is alleged to have committed a 707(b) offense,9 OR
  • has previously committed a felony when older than 14, AND is accused of committing

    • a felony where the victim was 65 or older or disabled, or
    • a felony constituting a hate crime, or
    • a felony that is gang-related.10

2.2. Direct files for minors 14 and older

Under W&I Code 707(d)(2), the prosecutor can direct file against the minor if the minor is 14 years of age or older and

  • is alleged to have committed an offense which if committed by an adult is punishable by death or life imprisonment, OR
  • is alleged to have personally used a firearm during the commission or attempted commission of a felony, OR
  • is alleged to have committed a 707(b) offense where:

    • the minor has a previously committed a 707(b) offense, or
    • the crime was gang-related, or
    • the offense was a hate crime, or
    • the victim was 65 or older or disabled.11

Let's look at an example:

Example:  John lives in the Inland Empire.  He is accused of beating someone up and thus violating California Penal Code 245(a)(1) pc ADW.

Assault by any means of force likely to produce great bodily is a Section 707(b) offense.  This means that if John is at least 16 years old, the prosecutor can elect to "direct file" against him in adult court.

Change the facts:  If John is only 15 years old, it's a different situation.  The prosecutor can only direct file against John if the prosecutor can allege additional factors...such as John has a prior juvenile adjudication for a Section 707(b) offense or the ADW charge was a hate crime or gang-related.

In either case, the prosecutor can initiate a fitness hearing under W&I Code 707(c) and let a judge at Riverside Juvenile Hall decide the issue.  At the fitness hearing, John will be presumed unfit for juvenile court and will need to convince the judge he is amenable to treatment as a juvenile under the five fitness criteria.

Under California Rule of Court Rule 4.766, the prosecutor must give John 5 court days notice of the fitness hearing so John and his attorney can prepare.
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3. When MUST a minor be tried in adult criminal court?

In the most serious of cases, a minor will automatically be tried in adult court if the minor is at least 14 years old.

The law says the minor must be tried in adult court in cases of:

  • Murder with special circumstances, if the prosecutor alleges that the minor personally killed the victim;
  • The following sex offenses, if the prosecutor alleges that the minor personally committed the offense and other extenuating circumstances:

    • Rape with force, violence or threat of great bodily harm,
    • Spousal rape with force, violence or threat of great bodily harm,
    • Forcible sex in concert with another,
    • Lewd and lascivious acts on a child under 14 with force, violence or threat of great bodily injury,
    • Forcible sexual penetration,
    • Sodomy or oral copulation by force, violence or threat of great bodily injury.12

4. Can a minor get the death penalty or "life without parole" in California?

Minors are never eligible to receive the death penalty.  The United States Supreme Court made this clear in the 2005 case of Roper v. Simmons.  In that case the Court held that such a penalty for a juvenile constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.13

In 2010, the nation's highest court further clarified in Graham v. Florida that a minor convicted of a non-homicide crime cannot be sentenced to "life without parole" (LWOP).14

California court are conflicted over the issue of whether a minor can constitutionally be sentenced to an "effective life sentence," such as 110 years, but the California Supreme Court has agreed to review the issue in a gang-related case out of Los Angeles involving attempted murder.

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Our California Juvenile Criminal Defense Attorneys Can Help...

If your child has been arrested, we invite you to call us at Shouse Law Group for a consultation.

For information about trying children as adults in Nevada, go to our page on trying children as adults in Nevada.

Helpful links:

Prison Law Office

Center of Juvenile and Criminal Justice

Ella Baker Center Books Not Bars Campaign

Youth Law Center

Juvenile Law Center

Burns Institute For Juvenile Justice & Equity

Youth Justice Coalition

Healing Justice Coalition

Fair Sentencing for Youth

Violence Prevention Coalition of Greater Los Angeles

References:

1 Our California Juvenile Criminal Defense Attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

2 California Welfare & Institutions Code Section 707(a)(1) provides:  "(a)(1) In any case in which a minor is alleged to be a person described in subdivision (a) of Section 602 by reason of the violation, when he or she was 16 years of age or older, of any criminal statute or ordinance except those listed in subdivision (b), upon motion of the petitioner made prior to the attachment of jeopardy the court shall cause the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor being considered for a determination of unfitness.  Following submission and consideration of the report, and of any other relevant evidence that the petitioner or the minor may wish to submit, the juvenile court may find that the minor is not a fit and proper subject to be dealt with under the juvenile court law if it concludes that the minor would not be amenable to the care, treatment, and training program available through the facilities of the juvenile court, based upon an evaluation of the following criteria:  (A) The degree of criminal sophistication exhibited by the minor.  (B) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.  (C) The minor's previous delinquent history.  (D) Success of previous attempts by the juvenile court to rehabilitate the minor.  (E) The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.  A determination that the minor is not a fit and proper subject to be dealt with under the juvenile court law may be based on any one or a combination of the factors set forth above, which shall be recited in the order of unfitness.  In any case in which a hearing has been noticed pursuant to this section, the court shall postpone the taking of a plea to the petition until the conclusion of the fitness hearing, and no plea that may have been entered already shall constitute evidence at the hearing."

3 California Welfare & Institutions Code Section 707(a)(2)(A) provides:  "(2)(A) This paragraph shall apply to a minor alleged to be a person described in Section 602 by reason of the violation, when he or she has attained 16 years of age, of any felony offense when the minor has been declared to be a ward of the court pursuant to Section 602 on one or more prior occasions if both of the following apply:  (i) The minor has previously been found to have committed two or more felony offenses.  (ii) The offenses upon which the prior petition or petitions were based were committed when the minor had attained 14 years of age.  (B) Upon motion of the petitioner made prior to the attachment of jeopardy the court shall cause the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor being considered for a determination of unfitness.  Following submission and consideration of the report, and of any other relevant evidence that the petitioner or the minor may wish to submit, the minor shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence, which evidence may be of extenuating or mitigating circumstances, that the minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court based upon an evaluation of the following criteria:  (i) The degree of criminal sophistication exhibited by the minor.  (ii) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.  (iii) The minor's previous delinquent history.  (iv) Success of previous attempts by the juvenile court to rehabilitate the minor.  (v) The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.  A determination that the minor is a fit and proper subject to be dealt with under the juvenile court law shall be based on a finding of amenability after consideration of the criteria set forth above, and findings therefore recited in the order as to each of the above criteria that the minor is fit and proper under each and every one of the above criteria.  In making a finding of fitness, the court may consider extenuating and mitigating circumstances in evaluating each of the above criteria.  In any case in which the hearing has been noticed pursuant to this section, the court shall postpone the taking of a plea to the petition until the conclusion of the fitness hearing and no plea which may have been entered already shall constitute evidence at the hearing. If the minor is found to be a fit and proper subject to be dealt with under the juvenile court law pursuant to this subdivision, the minor shall be committed to placement in a juvenile hall, ranch camp, forestry camp, boot camp, or secure juvenile home pursuant to Section 730, or in any institution operated by the Department of Corrections and Rehabilitation, Division of Juvenile Facilities."

4 California Welfare & Institutions Code Section 707(c) provides:  "(c) With regard to a minor alleged to be a person described in Section 602 by reason of the violation, when he or she was 14 years of age or older, of any of the offenses listed in subdivision (b), upon motion of the petitioner made prior to the attachment of jeopardy the court shall cause the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor being considered for a determination of unfitness.   Following submission and consideration of the report, and of any other relevant evidence that the petitioner or the minor may wish to submit, the minor shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence, which evidence may be of extenuating or mitigating circumstances, that the minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court based upon an evaluation of each of the following criteria:  (1) The degree of criminal sophistication exhibited by the minor.  (2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.  (3) The minor's previous delinquent history.  (4) Success of previous attempts by the juvenile court to rehabilitate the minor.  (5) The circumstances and gravity of the offenses alleged in the petition to have been committed by the minor.  A determination that the minor is a fit and proper subject to be dealt with under the juvenile court law shall be based on a finding of amenability after consideration of the criteria set forth above, and findings therefore recited in the order as to each of the above criteria that the minor is fit and proper under each and every one of the above criteria.  In making a finding of fitness, the court may consider extenuating or mitigating circumstances in evaluating each of the above criteria. In any case in which a hearing has been noticed pursuant to this section, the court shall postpone the taking of a plea to the petition until the conclusion of the fitness hearing and no plea which may have been entered already shall constitute evidence at the hearing.  If, pursuant to this subdivision, the minor is found to be not a fit and proper subject for juvenile court treatment and is tried in a court of criminal jurisdiction and found guilty by the trier of fact, the judge may commit the minor to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, in lieu of sentencing the minor to the state prison, unless the limitations specified in Section 1732.6 apply."

5 California Rule of Court Rule 5.766 provides:  "General provisions -- (a) Fitness hearing (§ 707) A child who is the subject of a petition under section 602(a) and who was 14 years or older at the time of the alleged offense may be considered for prosecution under the general law in a court of criminal jurisdiction.  The prosecuting attorney may request a hearing to determine whether the child is a fit and proper subject to be dealt with under the juvenile court law, in one of the following circumstances:  (1) Under section 707(a)(1), the child was 16 years or older at the time of the alleged offense if the offense is not listed in section 707(b). (2) Under section 707(a)(2), the child was 16 years or older at the time of the alleged felony offense not listed in section 707(b) and has been declared a ward of the court under section 602 on at least one prior occasion and: (A) The child has previously been found to have committed two or more felony offenses; and (B) The felony offenses in the previously sustained petitions were committed when the child was 14 years or older.  (3) Under section 707(c), the child was 14 years or older at the time of the alleged offense listed in section 707(b). (Subd (a) amended effective January 1, 2001; previously amended January 1, 1996.) (b) Notice (§ 707) Notice of the fitness hearing must be given at least five judicial days before the fitness hearing. (Subd (b) amended effective January 1, 2007.) (c) Time of fitness hearing-rules 5.774, 5.776 The fitness hearing must be held and the court must rule on the issue of fitness before the jurisdiction hearing begins.  Absent a continuance, the jurisdiction hearing must begin within the time limits under rule 5.774."

6Edsel v. Superior Court, 165 CA3d 763, 786 (1985) ("For the foregoing reasons, we hold that the allegation in the petition that a minor committed any of the offenses listed in subdivision (b) of section 707 does not relieve the prosecution of the need to establish a prima facie case in the manner described by In re Dennis H., when, prior to the fitness hearing, the minor requests that this be done.  In the interests of judicial economy, the hearing at which the prima facie case must be established may be consolidated with the fitness hearing if this does not conflict with the minor's right to a detention rehearing within the time limits prescribed by section 637, which right may be waived by the minor.  In any event, the issue of fitness cannot be considered unless the prima facie case is first made out.  Because in this case the prosecution was not required to and did not establish a prima facie case in response to the minor's timely challenge to the sufficiency of the evidence, the orders denying a detention rehearing and declaring the minor unfit to be dealt with under the Juvenile Court Law must be vacated."

7 California Welfare & Institutions Code Section 707(b) provides: "Subdivision (c) shall be applicable in any case in which a minor is alleged to be a person described in Section 602 by reason of the violation of one of the following offenses:  (1) Murder.  (2) Arson, as provided in subdivision (a) or (b) of Section 451 of the Penal Code.  (3) Robbery.  (4) Rape with force, violence, or threat of great bodily harm.  (5) Sodomy by force, violence, duress, menace, or threat of great bodily harm.  (6) A lewd or lascivious act as provided in subdivision (b) of Section 288 of the Penal Code.  (7) Oral copulation by force, violence, duress, menace, or threat of great bodily harm.  (8) An offense specified in subdivision (a) of Section 289 of the Penal Code.  (9) Kidnapping for ransom.  (10) Kidnapping for purposes of robbery.  (11) Kidnapping with bodily harm.  (12) Attempted murder.  (13) Assault with a firearm or destructive device.  (14) Assault by any means of force likely to produce great bodily injury.  (15) Discharge of a firearm into an inhabited or occupied building.  (16) An offense described in Section 1203.09 of the Penal Code. (17) An offense described in Section 12022.5 or 12022.53 of the Penal Code.  (18) A felony offense in which the minor personally used a weapon described in any provision listed in Section 16590 of the Penal Code.  (19) A felony offense described in Section 136.1 or 137 of the Penal Code.  (20) Manufacturing, compounding, or selling one-half ounce or more of a salt or solution of a controlled substance specified in subdivision (e) of Section 11055 of the Health and Safety Code.  (21) A violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code, which also would constitute a felony violation of subdivision (b) of Section 186.22 of the Penal Code.  (22) Escape, by the use of force or violence, from a county juvenile hall, home, ranch, camp, or forestry camp in violation of subdivision (b) of Section 871 if great bodily injury is intentionally inflicted upon an employee of the juvenile facility during the commission of the escape.  (23) Torture as described in Sections 206 and 206.1 of the Penal Code.  (24) Aggravated mayhem, as described in Section 205 of the Penal Code.  (25) Carjacking, as described in Section 215 of the Penal Code, while armed with a dangerous or deadly weapon.  (26) Kidnapping for purposes of sexual assault, as punishable in subdivision (b) of Section 209 of the Penal Code.  (27) Kidnapping as punishable in Section 209.5 of the Penal Code.  (28) The offense described in subdivision (c) of Section 26100 of the Penal Code.  (29) The offense described in Section 18745 of the Penal Code.  (30) Voluntary manslaughter, as described in subdivision (a) of Section 192 of the Penal Code."

8 California Rule of Court Rule 5.770(j) provides:  "An order that a child is or is not a fit and proper subject to be dealt with under the juvenile court law is not an appealable order.  Appellate review of the order is by petition for extraordinary writ.  Any petition for review of a judge's order determining the child unfit, or denying an application for rehearing of the referee's determination of unfitness, must be filed no later than 20 days after the child's first arraignment on an accusatory pleading based on the allegations that led to the unfitness determination.

9 California Welfare & Institutions Code Section 707(d)(1) provides:  "Except as provided in subdivision (b) of Section 602, the district attorney or other appropriate prosecuting officer may file an accusatory pleading in a court of criminal jurisdiction against any minor 16 years of age or older who is accused of committing an offense enumerated in subdivision (b)."

10 California Welfare & Institutions Code Section 707(d)(3) provides:  "Except as provided in subdivision (b) of Section 602, the district attorney or other appropriate prosecuting officer may file an accusatory pleading in a court of criminal jurisdiction against any minor 16 years of age or older who is accused of committing one or more of the following offenses, if the minor has previously been found to be a person described in Section 602 by reason of the violation of a felony offense, when he or she was 14 years of age or older:  (A) A felony offense in which it is alleged that the victim of the offense was 65 years of age or older, or blind, deaf, quadriplegic, paraplegic, developmentally disabled, or confined to a wheelchair, and that disability was known or reasonably should have been known to the minor at the time of the commission of the offense.  (B) A felony offense committed for the purposes of intimidating or interfering with any other person's free exercise or enjoyment of a right secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States and because of the other person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because the minor perceived that the other person had one or more of those characteristics, as described in Title 11.6 (commencing with Section 422.55) of Part 1 of the Penal Code.  (C) The offense was committed for the benefit of, at the direction of, or in association with any criminal street gang as prohibited by Section 186.22 of the Penal Code."

11 California Welfare & Institutions Code Section 707(d)(2) provides: "Except as provided in subdivision (b) of Section 602, the district attorney or other appropriate prosecuting officer may file an accusatory pleading against a minor 14 years of age or older in a court of criminal jurisdiction in any case in which any one or more of the following circumstances apply:  (A) The minor is alleged to have committed an offense that if committed by an adult would be punishable by death or imprisonment in the state prison for life.  (B) The minor is alleged to have personally used a firearm during the commission or attempted commission of a felony, as described in Section 12022.5 or 12022.53 of the Penal Code.  (C) The minor is alleged to have committed an offense listed in subdivision (b) in which any one or more of the following circumstances apply:  (i) The minor has previously been found to be a person described in Section 602 by reason of the commission of an offense listed in subdivision (b).  (ii) The offense was committed for the benefit of, at the direction of, or in association with any criminal street gang, as defined in subdivision (f) of Section 186.22 of the Penal Code, with the specific intent to promote, further, or assist in criminal conduct by gang members.  (iii) The offense was committed for the purpose of intimidating or interfering with any other person's free exercise or enjoyment of a right secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States and because of the other person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because the minor perceives that the other person has one or more of those characteristics, as described in Title 11.6 (commencing with Section 422.55) of Part 1 of the Penal Code.  (iv) The victim of the offense was 65 years of age or older, or blind, deaf, quadriplegic, paraplegic, developmentally disabled, or confined to a wheelchair, and that disability was known or reasonably should have been known to the minor at the time of the commission of the offense."

12 California Welfare & Institutions Code Section 602 provides: "(a) Except as provided in subdivision (b), any person who is under the age of 18 years when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.  (b) Any person who is alleged, when he or she was 14 years of age or older, to have committed one of the following offenses shall be prosecuted under the general law in a court of criminal jurisdiction:  (1) Murder, as described in Section 187 of the Penal Code, if one of the circumstances enumerated in subdivision (a) of Section 190.2 of the Penal Code is alleged by the prosecutor, and the prosecutor alleges that the minor personally killed the victim.  (2) The following sex offenses, if the prosecutor alleges that the minor personally committed the offense, and if the prosecutor alleges one of the circumstances enumerated in the One Strike law, subdivision (d) or (e) of Section 667.61 of the Penal Code, applies:  (A) Rape, as described in paragraph (2) of subdivision (a) of Section 261 of the Penal Code.  (B) Spousal rape, as described in paragraph (1) of subdivision (a) of Section 262 of the Penal Code.  (C) Forcible sex offenses in concert with another, as described in Section 264.1 of the Penal Code.  (D) Forcible lewd and lascivious acts on a child under the age of 14 years, as described in subdivision (b) of Section 288 of the Penal Code.  (E) Forcible sexual penetration, as described in subdivision (a) of Section 289 of the Penal Code.  (F) Sodomy or oral copulation in violation of Section 286 or 288a of the Penal Code, by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (G) Lewd and lascivious acts on a child under the age of 14 years, as defined in subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066 of the Penal Code."

13Roper v. Simmons, 543 U.S. 551 (2005) ("The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.")

14Graham v. Florida, 560 U.S. _____(2010) ("In sum, penological theory is not adequate to justify life without parole for juvenile nonhomicide offenders.  This determination; the limited culpability of juvenile nonhomicide offenders; and the severity of life without parole sentences all lead to the conclusion that the sentencing practice under consideration is cruel and unusual.  This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.")

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