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


In most cases, minors accused of committing a crime in California are adjudicated within the juvenile delinquency system. But in serious cases, judges may order that the minor be tried as an adult in 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 transfer 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 Division of Juvenile Justice until the age of 25.

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

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. Transfer hearings in California juvenile court

A transfer 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 will not benefit from those services, the minor gets transferred to adult court.1

The prosecutor can initiate a transfer hearing when:

  • The minor is 16 years or older and is alleged to have committed any felony or a crime listed in W&I Code 707(b);2 OR
  • The suspect was 14 or 15 when he/she allegedly committed an offense specified in W&I Code 707(b) AND the minor was not apprehended until he/she was 18.3

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

In terms of timing, the transfer 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 (5) court days notice of the transfer hearing.4

a listing of the 5 "fitness" criteria
5 criteria for trying a juvenile in adult court.

1.1. Transfer hearing criteria

In determining whether a minor should remain in 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.5

Let us 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.

The prosecutor may not initiate a transfer hearing under W&I Code 707(a) because shoplifting is not a felony nor is it a 707(b) crime.

Instead, Stacy makes one appearance at Barry Nidorf (Sylmar) Juvenile Hall & Court and the case gets diverted to probation under W&I Code 654.



Change the facts:  Elliot just turned 16. He is arrested for gang-related carjacking and assault causing great bodily injury. He is 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 has 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.

Since Elliot was was 16 when he allegedly committed the offenses, the prosecutor would have the authority to ask the court to move him to adult criminal court.

1.2. W&I Code 707(b) offenses

Under California Welfare & Institutions Code Section 707, the prosecutor can initiate a transfer hearing when the suspect is charged with violating one of the offenses specified in Welfare & Institutions Code Section 707(b). Recall that suspects who were 14 or 15 at the time of the alleged crime may not be transferred to adult court unless they were arrested after turning 18.

The Section 707(b) offenses 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 are 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.6

1.3. Extraordinary writ to challenge

If a minor loses the transfer 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 transfer 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 transfer.7

guns and ammo
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

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 transfer hearing to ask a judge to decide the issue. In a transfer hearing, if the minor cannot 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. Can a minor get the death penalty or "LWOP" 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.8

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).9

 

Our California Juvenile Criminal Defense Attorneys Can Help...

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Call us for 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 California Senate Bill No. 1391.

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 Section 602 by reason of the violation, when he or she was 16 years of age or older, of any offense listed in subdivision (b) or any other felony criminal statute, the district attorney or other appropriate prosecuting officer may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction. The motion shall be made prior to the attachment of jeopardy. Upon the motion, the juvenile court shall order the probation officer to submit a report on the behavioral patterns and social history of the minor. The report shall include any written or oral statement offered by the victim pursuant to Section 656.2.
(2) In any case in which an individual is alleged to be a person described in Section 602 by reason of the violation, when he or she was 14 or 15 years of age, of any offense listed in subdivision (b), but was not apprehended prior to the end of juvenile court jurisdiction, the district attorney or other appropriate prosecuting officer may make a motion to transfer the individual from juvenile court to a court of criminal jurisdiction. The motion shall be made prior to the attachment of jeopardy. Upon the motion, the juvenile court shall order the probation officer to submit a report on the behavioral patterns and social history of the individual. The report shall include any written or oral statement offered by the victim pursuant to Section 656.2.
(3) 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 shall decide whether the minor should be transferred to a court of criminal jurisdiction. In making its decision, the court shall consider the criteria specified in subparagraphs (A) to (E), inclusive. If the court orders a transfer of jurisdiction, the court shall recite the basis for its decision in an order entered upon the minutes. 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 transfer hearing, and a plea that has been entered already shall not constitute evidence at the hearing.
(A) (i) The degree of criminal sophistication exhibited by the minor.
(ii) When evaluating the criterion specified in clause (i), the juvenile court may 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, and the effect of the minor's family and community environment and childhood trauma on the minor's criminal sophistication.
(B) (i) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.
(ii) When evaluating the criterion specified in clause (i), the juvenile court may give weight to any relevant factor, including, but not limited to, the minor's potential to grow and mature.
(C) (i) The minor's previous delinquent history.
(ii) When evaluating the criterion specified in clause (i), the juvenile court may give weight to any relevant factor, including, but not limited to, the seriousness of 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.
(D) (i) Success of previous attempts by the juvenile court to rehabilitate the minor.
(ii) When evaluating the criterion specified in clause (i), the juvenile court may give weight to any relevant factor, including, but not limited to, the adequacy of the services previously provided to address the minor's needs.
(E) (i) The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.
(ii) When evaluating the criterion specified in clause (i), the juvenile court may give weight to any relevant factor, including, but not limited to, the actual behavior of the person, the mental state of the person, the person's degree of involvement in the crime, the level of harm actually caused by the person, and the person's mental and emotional development.

California Welfare & Institutions Code Section 602 provides:  Except as provided in Section 707, any person who is under 18 years of age 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.

3 Id.

4 California Rule of Court Rule 5.766 provides:  General provisions -- (a) Hearing on transfer of jurisdiction to criminal court (§ 707)  A child who is the subject of a petition under section 602 and who was 14 years or older at the time of the alleged felony offense may be considered for prosecution under the general law in a court of criminal jurisdiction. The district attorney or other appropriate prosecuting officer may make a motion to transfer the child from juvenile court to a court of criminal jurisdiction, in one of the following circumstances:
(1)  The child was 14 years or older at the time of the alleged offense listed in section 707(b).
(2)  The child was 16 years or older at the time of the alleged felony offense.

(b) Notice (§ 707)  Notice of the transfer hearing must be given at least five judicial days before the hearing. In no case may notice be given following the attachment of jeopardy.

(c) Prima facie showing  On the child's motion, the court must determine whether a prima facie showing has been made that the offense alleged is an offense that makes the child subject to transfer as set forth in subdivision (a).

(d)  Time of transfer hearing--rules 5.774, 5.776 The transfer of jurisdiction hearing must be held and the court must rule on the request to transfer jurisdiction before the jurisdiction hearing begins. Absent a continuance under rule 5.776 or the child's waiver of the statutory time period to commence the jurisdiction hearing, the jurisdiction hearing must begin within the time limits under rule 5.774.

5California Welfare & Institutions Code Section 707(a)(1).

6 California Welfare & Institutions Code Section 707(b) provides:

(b) This subdivision is applicable to 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.

7 California Rule of Court Rule 5.770(g) provides:  An order granting or denying a motion to transfer jurisdiction of a child to the criminal court 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 to transfer jurisdiction of the child to the criminal court, or denying an application for rehearing of the referee's determination to transfer jurisdiction of the child to the criminal court, 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 transfer of jurisdiction order.

8Roper 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.")

9Graham 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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