KEVIN P., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
A159680
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION ONE
Filed 11/6/20
CERTIFIED FOR PUBLICATION; (Contra Costa County Super. Ct. Nos. J18-00823, 02-331373-1)
Nevertheless, the juvenile court concluded that Kevin was unfit for the juvenile system and granted the prosecution‘s motion to transfer him to criminal court. Although the court acknowledged there was “a certain tragedy” in its ruling given Kevin‘s generally positive history outside the context of the charged crime, it determined that the decision was warranted based on three of the
Kevin filed a petition for an extraordinary writ in this court to overturn the juvenile court‘s transfer ruling. He claims that the juvenile court abused its discretion because there was insufficient evidence to support its findings and it misapplied the law in determining that he could not be rehabilitated before juvenile jurisdiction expired. We conclude the court‘s findings regarding
we grant the writ petition and remand the matter to the juvenile court to reconsider its transfer ruling.
A. The Killing and the Police Investigation
On the morning of July 19, 2018, 38-year-old Kishana Harley was found dead in her Richmond apartment‘s living room. She had been stabbed 38 times, mostly in her neck, shoulder, and upper back, as well as in the side of her face and the back of her head. She also had what appeared to be defensive wounds on both hands.
Harley was facedown with a knife handle resting on her back, and a bloody knife blade was on the floor nearby. The handle and blade appeared to go together to form “a common steak knife.” A butcher knife with a broken tip and blood on it was in the kitchen sink, and there was blood on the counter next to the sink. Blood was also found in other places throughout the apartment, including in a bathroom. In addition, a “napkin or paper towel wrapped in blue tape” in a “long” shape, like a “handle of some sort,” was in the hallway.
When a police officer arrived at the apartment, she observed blood smeared around the front door, and a glass sliding door to the apartment‘s patio was slightly open. The gas burners on the stove were on, and there was a “black charred substance” around Harley‘s head. Additional evidence in the apartment also demonstrated attempts to start a fire, including burned napkins on a couch. Harley‘s shirt had bleach stains on it, and there was a trail of blue toilet-bowl cleaner from the living room to the master bedroom. Several items were on the dining table—including a laptop, a purse, and the end of a marijuana joint—and “the whole table and its contents on top were
all doused in an unknown substance.” Harley‘s primary cell phone was missing, and her Mercedes was not in the complex‘s parking lot.
Surveillance footage from the apartment complex showed Harley enter her apartment at around 8:35 p.m. on July 16, 2018, three nights before her body was found. About five minutes later, a male suspect later determined to be Kevin entered the apartment, after initially turning away from it when two other people appeared. Over an hour later, around 10:00 p.m., Kevin left the apartment, and around 11:35 p.m., Harley‘s Mercedes was driven out of the complex‘s parking lot. Kevin re-entered Harley‘s apartment carrying white bags at around 12:05 a.m., left with the bags a few minutes later, and then returned to the apartment and exited it within a few more minutes.
Harley‘s cell phone records showed that the last call Harley received was at 8:33 p.m. on July 16, a few minutes before Kevin initially entered her
Based on the cell phone records and a recording of a 2016 encounter with police at his mother‘s house that showed Kevin wearing black-rimmed glasses similar to those worn by the suspect in the surveillance footage, a warrant issued to obtain his DNA. Forensic testing tended to suggest that a mixture of Kevin‘s and Harley‘s DNA was on both the blade and the handle of the butcher knife found in the kitchen sink, with Kevin as the major
contributor of the DNA on the blade and Harley as the major contributor of the DNA on the handle. Kevin‘s DNA was on the kitchen counter and in the bathroom, but it was not on either the handle or blade of the steak knife located by Harley‘s body, the latter of which had female DNA on it. The evidence also tended to suggest that the blood in the bathroom was Harley‘s.
During a subsequent search of Kevin‘s home, the police discovered a butcher block that contained other knives with handles matching the knife handle found on Harley‘s body, as well as paper towels and painter‘s tape matching the materials used to make the tape-wrapped object found in Harley‘s hallway. The police also found a pair of white Nike sneakers, which appeared similar to “bright white shoes” worn by the suspect in the surveillance footage. Both the sole of one of the shoes and the box in which they were found had bloodstains on them.
During his interrogation by police, Kevin initially denied knowing Harley or ever being inside her apartment, but he eventually admitted that he killed her. He reported that he originally met her at a gas station a few weeks before her death and asked her to buy tobacco for him. There was also evidence that the two smoked marijuana together, and some of Kevin‘s family members thought they had seen Harley‘s car around their house earlier in July. According to Kevin, on the night in question, he went to Harley‘s apartment to smoke marijuana with her.
Although Kevin changed his story in several respects throughout the interrogation, he maintained that he stabbed Harley in self-defense after she attacked him with a knife. He also claimed that at one point she stabbed herself when he swung a door open, hitting her. He eventually admitted that he brought a knife with him that night, although he stated that it was for
that the tape-wrapped paper towel was a type of scabbard to cover the blade so he would not cut himself.
As to his actions after the killing, Kevin admitted that he tried to burn Harley‘s body because Harley “was starting to stink” and “[s]he was a fake.” He also acknowledged turning on the stove burners and bringing bags into the apartment, but he claimed he could not remember his reason for either action.
B. Kevin‘s Background and Performance in Custody
Kevin is the son of Central American immigrants and grew up in San Francisco‘s Mission District until moving to Richmond. He has two older half-brothers and a younger sister. Family members described Kevin as affectionate, loving, calm, and respectful. He was especially good with his brother‘s and his cousin‘s very young children, “treat[ing] them with care and tenderness.”
Kevin and his family members uniformly described his home as “a happy place” without any physical or sexual abuse, domestic violence, or substance abuse. Aside from his parents’ separation when he was in elementary school, Kevin did not describe any significant traumatic events from childhood, and his father was still involved in his life. Kevin‘s family was supportive after his arrest, and his parents regularly visited him in juvenile hall.
For about a year before the offense, Kevin had a paid position working four hours a day at an afterschool program for middle school students run by the Boys & Girls Club of San Francisco. His job responsibilities included facilitating activities and helping with homework, and he connected well with the children and was concerned about them. Indeed, he would routinely stay late at the program even though he was not compensated for those hours.
His co-workers were “very impressed” with his work ethic, responsibility, and respectfulness to other staff, and he won “Youth of the Month” during his employment.
Kevin had no criminal history or arrests before this case. He engaged in some misbehavior, including setting off firecrackers at school and forcing open a bedroom door to retrieve his cell phone after his mother confiscated it, but he had no record of mental illness or any “aggressive or predatory behavior” toward others. Both the forensic social worker and forensic psychologist who evaluated Kevin for the transfer hearing found it significant that he had no gang involvement, despite growing up as a Latino in the
Kevin‘s school records suggested both that he was “highly intelligent” and that he might have “a processing problem” for which a recommended special-education evaluation never took place. Before his arrest, his high school grades were generally poor, primarily due to truancy. After Kevin entered juvenile hall, however, his grades showed “[v]ast improvement in most areas.” Indeed, he won several certificates for his scholastic performance, which was described as “pretty exemplary.” He eventually graduated from high school and then continued to take classes.
Kevin also received awards for good citizenship while in juvenile hall. He was engaged in therapy and group activities, and he had positive interactions with juvenile hall staff. Although he fought with two other boys
early in his stay, he ultimately befriended both, and overall he was doing extremely well in custody.
The forensic psychologist‘s evaluation showed Kevin had average intellectual ability with a possible learning disability related to mathematics, good executive functioning, and no neurocognitive impairments. He did not have conduct disorder, the youth corollary of antisocial personality disorder. It was possible that Kevin had a delusional disorder, which “is a condition where one develops beliefs that have no basis in reality,” but the forensic psychologist could not definitively diagnose it because he was directed not to question Kevin about the offense. The psychologist opined, and Kevin‘s family members and acquaintances agreed, that the “offense conduct, as charged, is completely out of character.”
C. Procedural History
In September 2018, the Contra Costa County District Attorney filed a petition under
The juvenile court found that the prosecution established a prima facie case to support the murder charge and that Kevin was not suitable for treatment under the juvenile court system. The court concluded that while two criteria under
it was a “gri[s]ly, gri[s]ly violent murder” that appeared to be premeditated and Kevin‘s attempts to set a fire endangered the lives of others at the apartment complex. Finally, as to the criterion “most significant” to its decision, the court found that even though Kevin had “done well in [a] structured setting” in juvenile hall, it was unclear that he could be rehabilitated in DJJ before he turned 25.
Accordingly, in November 2019, the juvenile court ordered the matter transferred to criminal court. Two months later, a criminal complaint was filed charging Kevin with same count and allegations brought in the juvenile petition, with the addition of a special circumstance of lying in wait.6
In February 2020, Kevin filed a petition for a writ of mandate in this court to compel the juvenile court to vacate its order and enter an order denying the
II. DISCUSSION
A. General Legal Standards
“Historically, California required a judicial determination of unfitness for juvenile court before a minor could be prosecuted in adult court,” and “[s]ince 1975, the procedural requirements for fitness hearings (also called transfer hearings) have been established by
Specifically, the law now provides that “[w]hen 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“—as Kevin was—“the prosecutor ‘may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction.’ ” (J.N., supra, 23 Cal.App.5th at p. 711, quoting
In ruling on a transfer motion, the juvenile court must consider five criteria under
court to rehabilitate the minor“; and (5) “[t]he circumstances and gravity of the offense alleged in the petition to have been committed by the minor.” (
Appellate review of a
B. There Was Substantial Evidence that the Crime‘s Gravity and Circumstances Supported Kevin‘s Transfer to Criminal Court.
Kevin argues that insufficient evidence supported the juvenile court‘s findings involving “[t]he circumstances and gravity of the offense alleged in
the petition to have been committed by the minor.” (
1. Additional facts
The probation officer believed that the gravity criterion weighed in favor of Kevin‘s transfer to criminal court. She focused on the facts that Kevin was the only perpetrator of the crime, stabbed Harley 38 times, and took measures to cover up his involvement that could have seriously endangered other residents of Harley‘s apartment complex. Although acknowledging that Kevin claimed he acted in self-defense, the probation officer observed that “the thought and execution of dousing the entire apartment with a chemical and strategically placing tissue and pillows around the victim‘s body to set her on fire goes beyond self-defense.”
The forensic psychologist, Dr. John Shields, Ph.D., conceptualized this criterion as addressing not just the seriousness of the crime—which he agreed was “a very violent, egregious, horrific crime” committed by Kevin alone—but whether the behavior was “so grave as to impede or preclude” Kevin‘s rehabilitation. Noting that Kevin had made significant progress toward rehabilitation while in juvenile hall, Dr. Shields determined that the crime was not “so indicative of [his] character, so grave in nature to suggest that rehabilitation isn‘t possible, or [that] it would be so hampered that it would take an indefinite period of time.”
In explaining his inability to conclude that the criterion favored transfer despite the admitted seriousness of Kevin‘s criminal behavior, Dr. Shields highlighted the lack of context for understanding Kevin‘s actions. In particular, he indicated that there were “a number of important, yet unanswered, . . .
nature of Kevin and Harley‘s relationship and the extent to which Kevin acted because he was in fear of Harley.
Indeed, other evidence presented at the hearing suggested the killing was not necessarily a straightforward premeditated murder. In addition to the physical evidence suggesting Harley also had a knife during the encounter, evidence of her aggressive character was presented. Harley‘s boyfriend described her as having “mood swings kind of going from . . . zero to [a] hundred, and getting mad over small things or nothing,” and another friend indicated she had “significant anger issues” involving a custody dispute with the father of her two young children. On at least one occasion, both Harley and the father of those children were arrested as a result of a domestic violence incident in New York. Finally, and most significantly, less than two years before her death Harley assaulted her older daughter outside the daughter‘s middle school, punching the child with a belt wrapped around her knuckles. After the daughter reported that Harley often beat her without provocation, she was removed from Harley‘s custody, and she remained in foster care at the time of Harley‘s death.
The juvenile court concluded that the gravity criterion favored transfer, specifically rejecting Dr. Shields‘s position that “the very nature of the circumstances and gravity do not impede [Kevin‘s] rehabilitation.” Observing that “[t]here is no question that this was a gri[s]ly, gri[s]ly violent murder” during which Kevin acted alone, the court found it “pretty clear . . . that this is about as grave of circumstances that could exist.” The court also found it “worthy of mentioning under this [criterion]” that Kevin tried to set a fire after the killing, “because his further actions created a further risk to all of the residents of [Harley‘s] apartment complex.”
As to Kevin‘s mind state, the juvenile court determined that Kevin acted with “some type of premeditation or some type of intent to inflict some type of serious harm to [Harley],” based on the fact he “brought a knife from his own home to [her] home,” initially backed away from entering her apartment when other people were nearby, and made other efforts to avoid detection after committing the crime. The court specifically rejected Kevin‘s claim of self-defense, stating, “His assertion that this [was] self-defense is not credible. The amount of force that was inflicted upon [Harley] is well beyond any type of reasonable force that would be necessary to protect yourself and get yourself to a situation of some type of safety. At one point there was a reference to a door opening and therefore she stabbed herself. These types of comments are honestly, they are ludicrous. That‘s not how this occurred.”
The gravity criterion focuses on the offense ” ‘alleged in the petition’ ” (D.W., supra, 43 Cal.App.5th at p. 119), and like the other statutory criteria, it is “based on the premise that the minor did, in fact, commit the offense.” (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 682 (Jones).) But the allegation that a minor committed a serious offense, including murder, does not “automatically require a finding of unfitness.” (Ibid.; J.N., supra, 23 Cal.App.5th at p. 724.) Rather, in evaluating this criterion, a juvenile court may rely on evidence that, “while not justifying or excusing the crime, tends to lessen its magnitude” (Jones, at p. 685), “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.” (
Kevin acknowledges that “the nature of the offense alleged is grave and serious,” but he argues that there was nevertheless insufficient evidence of his “actual behavior” and “mental state” during the crime. He points out that “there were significant unresolved questions as to what occurred, and no third-party percipient witnesses to the crime,” leaving Dr. Shields unable to “opine that this criterion weighed in favor of transfer” without “additional information.” But while a minor‘s “actual behavior” and “mental state” during the crime are among the factors deemed relevant under
Kevin also claims that the gravity criterion must be evaluated in light of the ultimate issue at a transfer hearing, whether a minor ” ‘is amenable to the
suggest that the juvenile court was precluded from finding this criterion weighed in favor of transfer in light of Dr. Shields‘s opinion that ” ‘as heinous and egregious as this event was, . . . it [was] not so grave as to hamper or preclude [Kevin] from being rehabilitated.’ ” Although we agree that the circumstances and gravity of the crime are relevant because they bear on a minor‘s prospects of rehabilitation, Kevin does not offer any authority for the proposition that expert testimony—or any other evidence beyond that bearing on what happened during the crime—is required to evaluate this criterion. In short, there was substantial evidence to support the court‘s conclusion, even though there may have also been substantial evidence to support a different conclusion.
C. Substantial Evidence Supported the Determination that Kevin‘s Criminal Sophistication Weighed in Favor of Transfer.
Kevin also argues that insufficient evidence supported the juvenile court‘s findings as to the statutory criterion involving “[t]he degree of criminal sophistication exhibited by the minor.” (
1. Additional facts
The probation officer believed that Kevin‘s degree of criminal sophistication also weighed in favor of his transfer to criminal court. Concentrating on the crime itself, she observed that despite his claim of self-defense, he brought a weapon with him to Harley‘s apartment and “made efforts to avoid being detected” when he first arrived, suggesting both that the killing was premeditated and that he knew “he was about to do something wrong.” She also identified other indications that Kevin “was aware of the wrongfulness of his actions,” including his “heinous actions to
burn and destroy the crime scene, failure to seek assistance and report the incident, and [decision] to flee the scene, only to return and flee again.” Finally, she noted that Kevin did not have any “documented history of mental health issues, childhood trauma, or diminished intellectual capacity” suggesting he was unable to distinguish between right and wrong.
Dr. Shields, in contrast, concluded that Kevin‘s attempts to conceal the crime demonstrated “the absence of sophistication.” Among other “hopelessly unsuccessful” actions, Kevin left the steak knife at the scene, kept the shoes he wore that night even though they had blood on them, and failed to destroy
Dr. Shields also opined that “outside of the facts of this crime,” there was “nothing in the assessment data or in [Kevin‘s] history that suggests . . . that he is an individual who is developing a criminally sophisticated character.” Indeed, Kevin‘s “criminal character” seemed much less developed than that of most other 18-year-old boys in juvenile hall, and he was not “an adolescent who maintains that harming people, assaulting people[,] or committing any form of crime . . . is a routine or acceptable form of conduct.”
More generally, Dr. Shields testified about recent research on the brain chemistry of adolescents, which is “significantly different” from that of adults. Adolescents’ brains continue to develop until they reach their early 20‘s, and there is generally a large gap between their “psychosocial maturity” and their intellect, the latter of which develops more quickly. As a result, the behavior an adolescent exhibits is less indicative of a long-term character trait than it
would be if an adult exhibited it, since “there is more development that‘s going to take place that‘s going to improve reasoning ability, it‘s going to improve ability to foresee future consequence, it‘s going to be able to be more resistant to risk taking, outside influence, all of these kinds of things that we know adolescents are vulnerable to.” Thus, “there is much more potential in adolescents for change and development pro-socially than we thought previously.”
The juvenile court concluded that the criminal-sophistication criterion weighed in favor of transfer to criminal court. After observing that Kevin was about 17 and a half years old at the time of the offense, the court reviewed evidence that he was a normally functioning teenager. The court noted that he seemed to be “of normal intelligence,” based on educational testing and his obtaining of a diploma while in juvenile hall, and “his cognitive functioning seem[ed] to be perfectly fine and [was] not impaired.” The court also noted that although it accepted the testimony about adolescent brain development, Dr. Shields had “opined that Kevin has good executive functioning.” The court observed that Kevin‘s “family background... is unusually devoid of any type of abuse; either emotional, physical, any type of what I would refer to as difficulty in his upbringing.” And while “his older brother was reported to be a gang member,” it did not “appear that his brother influenced him in any way. It sounds like [Kevin] had very positive adults surrounding him.” Finally, the court found that “external influences” did not appear to play a role in the offense. To the contrary, Kevin had shown “the ability . . . to make good decisions in the face of tremendous pressure” by resisting gang affiliation.
court stated that it nevertheless “did not necessarily agree with everything that Dr. Shields said.” The court acknowledged that Kevin “clearly made some botched efforts to conceal what had occurred,” but it also observed that “for several weeks” after the crime “he acted as if honestly nothing had happened” and might have escaped detection altogether “[b]ut for the phone calls that were discovered [in] the phone records.” The court found that Kevin‘s efforts at concealment were also significant “because he knew of the wrongfulness and the consequences of this conduct,” concluding that “Kevin has the ability to appreciate the risks and consequences of his criminal behavior.”
2. Discussion
The criminal-sophistication criterion “requires a juvenile court . . . to consider the whole picture, that is, all the evidence that might bear on the minor‘s criminal sophistication, including any criminal sophistication manifested in the present crime.” (Jones, supra, 18 Cal.4th at pp. 683–684.) In evaluating this criterion, “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.” (
Initially, we reject Kevin‘s cursory assertion that the juvenile court failed to articulate its reasoning sufficiently to provide an adequate record for review. He relies on C.S., in which the Court of Appeal granted the minor‘s writ petition after “conclud[ing] that the juvenile court‘s transfer decision [did] not permit meaningful appellate review because the juvenile court did not clearly and explicitly ‘articulate its evaluative process’ by detailing ‘how it weighed the evidence’ and by ‘identify[ing] the specific facts which persuaded the court’ to reach its decision to transfer,” including as to the criminal-sophistication criterion. (C.S., supra, 29 Cal.App.5th at pp. 1030–1031, 1035, 1039.) Although the juvenile court in C.S. “discussed relevant factors—such as [the minor‘s] early childhood, the expert testimony regarding [his] brain development, [his] prior offenses, and [his] gang involvement“—it did not specify whether those factors or the criminal-sophistication criterion generally weighed in favor of transfer. (Id. at pp. 1030–1031.)
Whether the factors on which the juvenile court relied should weigh in favor of a finding of criminal sophistication is a separate question. Kevin argues that the court “seem[ed] to imply that [his] positive character traits and . . . potential for growth equate to a sophisticated criminal character,” which “surely . . . would be an abuse of discretion, as positive character traits and protective factors cannot reasonably be used to support transfer.” Similarly, his amici curiae contend that “[a]lthough strong family support, positive and prosocial activities, normal intelligence[,] and lack of gang involvement are all factors tending to support healthy emotional development, maturity[,] and ‘sophistication’ as the term is used in the non-criminal context, they are not factors that lead to the development of criminal sophistication of the type the juvenile court is required to evaluate” under
We agree that such positive factors do not affirmatively demonstrate criminal sophistication. Positive background factors may support a juvenile court‘s finding that this criterion weighs in favor of transfer to the extent they fail to mitigate other evidence that does affirmatively demonstrate criminal sophistication. Thus, the gang involvement of a minor with poor cognitive functioning might demonstrate a lesser degree of criminal sophistication than the gang involvement of a minor with normal cognitive functioning. But the mere fact that a minor is of normal intelligence, for example, does not tend to prove that he or she is criminally sophisticated. Likewise, Kevin‘s knowledge that his actions were wrong and his ability “to appreciate risks and consequences of criminal behavior” (
The juvenile court, however, did not rely only on Kevin‘s positive characteristics in concluding that this criterion weighed in favor of transfer. It also
Kevin argues that his attempts to avoid detection are not substantial evidence of criminal sophistication because “an effort at concealment does not . . . suggest an individual is a sophisticated criminal” unless “the manner in which the effort is made” is criminally sophisticated. But this position cannot be reconciled with Jones, even accepting that Kevin‘s efforts were hardly the work of a criminal mastermind. In Jones, our state Supreme Court held that insufficient evidence supported the juvenile court‘s determination that the minors lacked criminal sophistication, even though they “had no previous record of participation in any criminal offenses, gang activity, or mischievous conduct,” and their plan to rob a store “was uncomplicated and ineptly executed.” (Jones, supra, 18 Cal.4th at pp. 683–684.) Thus, the Court effectively concluded not only that ineptitude in one‘s criminal activities does not preclude a finding of criminal sophistication, but also that such ineptitude does not even constitute substantial evidence of a lack of criminal sophistication.
We recognize that Jones was decided over 20 years ago, when the juvenile transfer law differed in several respects from its current form. Under then-prevailing law, the Jones minors had the burden of overcoming a presumption of unfitness for treatment in the juvenile court system, which required them to prove by a preponderance of the evidence that each of the five
D. The Juvenile Court Improperly Evaluated the Rehabilitation Criterion.
Finally, Kevin contends that the juvenile court erred in evaluating the rehabilitation criterion. We agree. The court determined that the standard seven-year parole consideration period applicable to juveniles committed to DJJ for murder established a minimum rehabilitation period for Kevin, and it found that he was therefore unlikely to be rehabilitated while it retained jurisdiction. We conclude both that the court erred by relying on the seven-year period as a “baseline” rehabilitation period and that insufficient evidence supports the finding that Kevin was unlikely to be rehabilitated before juvenile court jurisdiction expired.
1. Additional facts
The probation officer testified that she contacted DJJ to obtain Kevin‘s parole consideration date, which is based solely on the generic offense charged. She was told that the standard parole consideration date for murder is seven years and that juvenile jurisdiction would exist until Kevin reached age 25. Given that “it takes 60 to 90 days to be delivered to DJJ . . . following a commitment” and that Kevin “would be released 90 to 100 days prior to jurisdiction expiring,” the probation officer calculated that he “would have approximately six and a half years to take advantage of rehabilitative services offered at DJJ.”
In her report, the probation officer observed that “[b]ased on [Kevin‘s] positive behavior while being detained in [j]uvenile [h]all, it appears [he] is able to program well in a structured environment.” She nevertheless concluded that “[g]iven the extreme circumstance of the allegations and the gravity of [Kevin‘s] actions, it is not likely a DJJ commitment would allow ample time to rehabilitate and take full advantage of therapeutic services.” She also concluded that “a DJJ commitment may not allow adequate time for supervision following [Kevin‘s] release from DJJ,” meaning that “the [j]uvenile [c]ourt would not be able to gauge [his] rehabilitation and ensure the
The probation officer confirmed that her opinion was not based on an assessment of Kevin‘s particular rehabilitative needs. She agreed that she could “not identify specific therapeutic services that Kevin would be unable to take advantage of if committed to DJJ until age 25” and that she did not “have the training and expertise to be able to opine Kevin needs ‘X’ program and that program is not available at DJJ.” Rather, her opinion “was based solely on the fact that this is a serious offense,” and she acknowledged that “other than the circumstances of the current offense there [was] nothing that [she] identified to suggest that Kevin is a serious danger to the public” and “nothing in Kevin‘s history to suggest that he is not amenable to rehabilitation in [j]uvenile court.”
Dr. Shields concluded that Kevin showed “significant rehabilitative potential.” In explaining this conclusion, Dr. Shields identified several factors demonstrating Kevin‘s amenability to rehabilitation. During their meetings, Kevin seemed “boyish” and “eager to please,” which Dr. Shields found unusual compared to his experience with other older boys at juvenile hall. Indeed, it became “quickly apparent” to Dr. Shields that Kevin did not exhibit any signs of antisocial behavior he typically saw when evaluating other minors, including unwillingness to interact, disrespectful language, and resistance to cooperating. Psychological testing confirmed this impression, as it did not show any signs that Kevin was developing an antisocial character. To the contrary, Dr. Shields found Kevin to be “exquisitely receptive to the input of authority figures . . . [and] the prospect of services that might be available to him,” characterizing him as “not an individual who is going to inhibit the rehabilitative process.”
Dr. Shields observed that Kevin‘s family environment was supportive and positive, without any indications of “ongoing criminality” or the condoning of delinquency. Kevin had excellent relationships with his family members and was trusted with the significant responsibility of caring for young children. Kevin described being taught good values, including hearing from his parents that it was important to learn from one‘s mistakes. Specifically, Kevin‘s avoidance of gang involvement indicated his family‘s positive influence on his morals.
Dr. Shields also found Kevin‘s positive employment history at the Boys & Girls Club to be significant, especially because it offered the chance for
Kevin‘s performance at juvenile hall demonstrated his amenability to rehabilitation as well. His grades showed marked improvement once he entered a structured setting, which Dr. Shields testified was unusual, since “typically the way that [minors] perform in the community-based setting is going to be indicative of how they perform in the [j]uvenile [h]all setting.” In addition, aside from the two fights early in his time there, Kevin exhibited “prosocial” behavior in juvenile hall. Dr. Shields found it particularly significant that Kevin was willing to meet with a therapist, because it showed his “openness to the input . . . of adults in a rehabilitative way. [¶] . . . [¶] Many kids who are much more criminally oriented or psychopathically developing, if you will, are going to stay as far away from those people [as] they can, and if they do interact with those people it‘s been in my experience [in] a very negative way. But we don‘t see that from Kevin.”
Kevin‘s remorse over Harley‘s death also indicated to Dr. Shields that Kevin could be rehabilitated. Kevin stated that he “felt badly for what happened” and recognized the crime‘s negative impact on Harley‘s family. Dr. Shields explained that it was “a positive sign” for “an adolescent to be able to express genuine feeling with noticeable and appropriate shifts in their emotional expression or their tone,” and Kevin did not “ma[k]e light of [the crime] . . . or distance[] himself from responsibility.”
Finally, Dr. Shields performed a juvenile risk assessment that showed Kevin posed a low risk of future violent behavior. Dr. Shields noted that the assessment did not account “to any significant degree” for the nature of the subject‘s current offense, which research showed was not “a significant predictor of recidivated violence.” As Dr. Shields explained, although “common sense would tell us that . . . someone who commits a very violent, serious offense . . . must be a very, very dangerous individual,” in fact even “perpetrators of the most severely violent behavior, if they are not antisocially predisposed . . . or do not have psychopathic character, or some other factor that would suggest probability for violence, then the risk for reoffense in those cases is actually quite low.”
The juvenile court deemed the rehabilitation criterion “the most significant” factor in its decision to grant the prosecution‘s transfer motion. Based on DJJ‘s “seven-year baseline” for the offense, the approximately 45-day “delay getting individuals to DJJ,” the need to release individuals 90 to 120 days before juvenile court jurisdiction expires at age 25, and Kevin‘s age of
2. Discussion
The rehabilitation criterion addresses “[w]hether the minor can be rehabilitated prior to the expiration of the juvenile court‘s jurisdiction,” and
Separately, a DJJ regulation in effect for decades establishes “[a] parole consideration date interval of seven years” when a minor is committed to DJJ for various offenses, including murder. (
Kevin claims that the juvenile court erred in treating the “seven-year baseline” for murder as establishing a “minimum rehabilitation period.” He argues that the seven-year period addresses parole eligibility, not rehabilitation, and his eligibility for parole before age 25 does not affect “whether, based on his individual needs, risk and protective factors, attitude, intelligence, and demonstrated amenability to treatment, he can be rehabilitated
We agree with Kevin that the parole consideration period does not establish a minimum rehabilitation period. The People do not cite any legal authority for the proposition that a juvenile court may rely on the seven-year period to reach any conclusions about what a particular minor‘s rehabilitative needs and prospects are. If anything, presuming that a minor who committed murder will take at least seven years in DJJ to rehabilitate is inconsistent with
Kevin further argues that in focusing on the seven-year period, the juvenile court “failed to adequately address whether [he] could be rehabilitated prior to the expiration of juvenile court jurisdiction—the actual question posed by the [rehabilitation] criterion.” According to him, “the prosecution failed to present any evidence as to what efforts would be necessary to rehabilitate [him], what programs exist in the juvenile system geared toward addressing [his] rehabilitative needs, and any reason why [he] could not avail himself of these programs or be rehabilitated in the time allotted.” He claims insufficient evidence therefore supports the juvenile court‘s determination that the rehabilitation criterion weighed in favor of transfer. Again, we agree.
“If the possibility that [DJJ] might have to treat a ward of the juvenile court beyond the age of his [or her] majority is the determinative factor in the court‘s decision that the minor is unfit [for treatment as a juvenile], there must be substantial evidence in the record that successful treatment might require the extra time.” (Jimmy H. v. Superior Court (1970) 3 Cal.3d 709, 715.) “Expert witnesses may testify on the availability of treatment programs in the juvenile court system and the amenability of the minor to those programs. [Citation.] In those cases where the juvenile court might decide treatment as a juvenile would be in the
In J.N., the Fourth District Court of Appeal held that insufficient evidence supported the juvenile court‘s determination that a minor accused of murder “was not an appropriate candidate for treatment in the juvenile justice system under this criterion.” (J.N., supra, 23 Cal.App.5th at pp. 721–722.) Despite recognizing that the minor “‘ha[d] come a long way in custody,‘” the juvenile court determined that the fact that only three years remained before its jurisdiction expired weighed in favor of transfer. (Id. at p. 721.) At the transfer hearing, however, “the prosecution did not present any expert testimony concerning the programs available, the duration of any of the programs, or whether attendance would rehabilitate [the minor] before termination of the juvenile court‘s jurisdiction. There was no evidence that demonstrated existing programs were unlikely to result in [the minor‘s] rehabilitation, why they were unlikely to work in this case, or that they would take more than three years to accomplish the task of rehabilitating [him].” (Id. at p. 722.) As a result, the finding that the minor was unsuitable for treatment in juvenile court constituted an abuse of discretion. (Ibid.)
The prosecution here similarly presented little if any evidence to demonstrate what Kevin‘s rehabilitative needs were, much less why they could not be met through a DJJ commitment.13 Dr. Shields testified that Kevin had good prospects of being rehabilitated in the juvenile system, based on evidence of Kevin‘s positive characteristics, lack of serious psychological issues, performance in juvenile hall, and low risk of reoffense. The prosecution offered no contrary expert testimony. While the probation officer opined that the rehabilitation criterion favored transfer, her opinion was speculative, as she agreed there was “no way to know” if Kevin would be rehabilitated before juvenile court jurisdiction expired. Moreover, she candidly agreed her opinion was based on nothing specific about Kevin except “the circumstances of the current offense.” Thus, “[e]ven if we were to accept the probation officer‘s conclusion in the [transfer] report as an expert opinion, and we do not, the conclusion under this [criterion] was not supported by the evidence.” (J.N., supra, 23 Cal.App.5th at p. 722.)
Finally, we address the appropriate disposition. Kevin seeks a writ of mandate requiring the juvenile court to (1) “set aside its order . . . transferring [his] case to criminal court” and (2) “enter a new and different order that the transfer motion be denied,” but the parties’ briefs do not address whether the second direction is warranted given our determination that substantial evidence supports two of the statutory criteria on which the court relied.
At oral argument, Kevin‘s counsel contended that we should not remand the matter to the juvenile court for reconsideration, because the court would necessarily abuse its discretion if it again decided to transfer Kevin to criminal court. Counsel argued that unless there is some evidence that a minor cannot be rehabilitated before the juvenile court‘s jurisdiction expires, a court cannot lawfully grant a transfer motion. Although the trend in the law is clearly toward retaining more minors in juvenile court, nothing in
Let a peremptory writ of mandate issue directing respondent court to (1) vacate its order of November 14, 2019, transferring the matter to criminal court, and thereby return Kevin to juvenile jurisdiction, and (2) reconsider its ruling on the prosecution‘s transfer motion in a manner consistent with this opinion. Specifically, the court shall reevaluate the rehabilitation criterion under
Humes, P.J.
WE CONCUR:
Margulies, J.
Banke, J.
Kevin P. v. Superior Court A159680
Trial Court: Superior Court of the County of Contra Costa
Trial Judge: Hon. Barbara Hinton
Counsel for Petitioner: Robin Lipetzky, Public Defender; Jonathan Laba, Assistant Public Defender; Diana Garrido, Deputy Public Defender
Counsel for Real Party in Interest: Diana Becton, District Attorney; Kabu Adodoadji, Deputy District Attorney
Amici Curiae for Petitioner: Markéta Sims, Cyn Yamashiro, Independent Juvenile Defender Program; Susan L. Burrell, Pacific Juvenile Defender Center
Kevin P. v. Superior Court A159680