In re A.T. CA4/2

• Court: California Court of Appeal
• Decided: June 27, 2024
• Docket: E081618
• Status: Unpublished

Opinion

Filed 6/27/24 In re A.T. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re A.T., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, E081618 Plaintiff and Respondent, (Super.Ct.No. RIJ2000712) v. OPINION A.T.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Mark E. Petersen, Judge.

Affirmed.

Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Heather B.

Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.

1 INTRODUCTION

Minor A.T. (minor)1 appeals from an order transferring him from the juvenile

court to a court of criminal jurisdiction, pursuant to Welfare and Institutions Code section

707.2 He contends: (1) the juvenile court abused its discretion in finding him not

amenable to rehabilitation while under the juvenile court’s jurisdiction, since its findings

were not supported by substantial evidence; and (2) the court erred in relying on a

probation report which was prepared prior to recent amendments made to section 707. In

supplemental briefing, minor contends that Senate Bill No. 545’s recent amendments, as

well as changes to the rules of court, apply to him, and he requests a remand to the

juvenile court for a new transfer hearing. We affirm.

PROCEDURAL BACKGROUND

Prior Petitions

On November 23, 2020, the Riverside County District Attorney’s Office (the

District Attorney) filed a juvenile wardship petition pursuant to section 602,

subdivision (a), alleging that minor had committed burglary. (Pen. Code, § 459.) On

February 23, 2021, the District Attorney filed a subsequent petition, alleging that minor

had committed petty theft and carried a concealed dirk or dagger. (Pen. Code, §§ 488,

21310.)

1 Minor’s birthday is January 2004. At the time of the transfer hearing, A.T. was 19 years old and, thus, no longer a minor. However, to avoid confusion, we will still refer to him as “minor” in this opinion.

2 All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.

2 On March 16, 2021, minor admitted the burglary allegation from the

November 23, 2020 petition and the concealed dirk or dagger allegation from the

February 23, 2021 petition, and the court dismissed the petty theft allegation. On

April 12, 2021, the court granted minor deferred entry of judgment (DEJ) and released

him to live with his adult sister on home supervision, under specified probation

conditions.

On December 2, 2021, the Riverside County Probation Department (the probation

department) filed a petition to lift the DEJ and proceed to disposition. The probation

officer reported that minor had made minimal progress on DEJ. He tested positive for a

controlled substance multiple times and was directed to enroll in a substance abuse

program, but he failed to appear for his appointment and missed several weekly drug

tests. The probation officer reported that minor showed a complete disregard for the

court’s orders and the probation officer’s directives. The court held a hearing on

December 8, 2021, lifted the DEJ, and temporarily placed minor in juvenile hall.

On December 23, 2021, the court adjudged minor a ward of the court and released

him to his mother’s custody, under certain conditions. The probation officer reported that

minor started regressing. He ran away from home the moment he was released to his

mother’s custody, and his mother failed to report that he was away for approximately 12

days. He then started participating in programs but began testing positive for marijuana

and leaving home without permission.

On January 5, 2022, the District Attorney filed a subsequent petition, alleging

minor had committed assault with a firearm, unlawful discharge of a firearm at an

3 occupied building, and discharge of a firearm in a grossly negligent manner, on or about

January 4, 2022. (Pen. Code, §§ 245, subd. (a)(2), 246, 246.3, subd. (a).)

On January 21, 2022, minor admitted the assault allegation, and the juvenile court

dismissed the remaining allegations. The court continued minor as a ward and ordered

him placed at the Riverside County Youth Treatment and Education Center (YTEC).

On February 10, 2022, the People filed a subsequent petition alleging that minor

had committed a burglary in November 2021. (Pen. Code, § 459.) On March 7, 2022,

minor admitted the burglary and the juvenile court ordered that he continue at YTEC.

On August 31, 2022, minor completed the program at YTEC and was released

from the youth detention facility. The social worker reported that, after his release from

YTEC, minor’s compliance with the conditions of his probation was poor and “he . . .

made little to no progress towards maintaining his rehabilitation.” He relapsed into using

marijuana and refused to comply with directives to regularly attend outpatient treatment.

Minor only sporadically participated in his required individual counseling, and he was

continuously in contact with people on active parole/probation.

Current Petition and Transfer Motion

On November 7, 2022, the District Attorney filed a petition alleging that minor

committed murder on or about July 6, 2021, and, in the commission of the murder,

personally and intentionally discharged a firearm causing great bodily injury and death.

(Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) The District Attorney also filed a

motion to transfer minor from juvenile court to a court of criminal jurisdiction, pursuant

to section 707, subdivision (a)(1).

4 Probation Officer’s Report

On December 2, 2022, the probation department filed a report addressing minor’s

fitness for transfer to a criminal jurisdiction court. The probation department reported the

circumstances of the murder, as follows: On July 6, 2021, a minor (the witness) and his

16-year-old friend (the victim) were walking to the driveway of a mobile home park. The

victim told the witness to stop and wait while he continued walking. The witness asked

the victim whom he was going to meet, but the victim did not answer and kept walking

toward the driveway. Approximately 30 seconds after the victim began walking away,

the witness heard a gunshot and ran to the front of the mobile home park. He saw the

victim lying on the ground and a suspect car with the front and passenger doors open.

The male in the front passenger seat had a gun in his right hand. The witness grabbed his

own gun from his waistband and fired three shots toward the car. The victim was treated

at a nearby hospital but eventually died.

About an hour after the shooting, the Riverside County Sheriff’s Department

received a report that minor had come into a hospital to be treated for two gunshot

wounds. Minor told investigators that he had been walking on a sidewalk when an

unknown car pulled up, and someone in the car shot him. He was unable to provide any

information on the suspect and did not desire prosecution.

Cellular phone records from the day of the shooting showed that cell phones

belonging to minor and his friend, B.V., were in the area of the shooting. A record check

showed that minor and B.V. had been arrested together previously for burglary and

possession of a loaded firearm.

5 On January 21, 2022, a search warrant was executed at B.V.’s residence, and he

was arrested on an unrelated matter. During the search, a car belonging to B.V.’s mother

was located and observed to have two gunshot marks on the rear panel of the passenger

side. Two bullet projectiles were found in the trunk, and they were later determined to

match the witness’s gun.

On November 4, 2022, minor was arrested and taken into custody. While in

custody, he admitted to being an active member of “ ‘My Gangster Familia 13’ ” criminal

street gang. When informed he was in custody for the current matter, minor said the

victim was a “ ‘random plug’ ” that friends of B.V. knew. Minor stated he had planned

to rob the victim of marijuana but shot him one time due to feeling “ ‘paranoid.’ ” Minor

stated he then hid the expended cartridge casing after he shot the victim, and the witness

shot him in the buttocks.

The probation officer evaluated the five criteria in section 707, subdivision

(a)(3)(A)-(D), and recommended that the matter be transferred to a court of criminal

jurisdiction. The probation officer evaluated the criteria, as follows:

(1) The Degree of Criminal Sophistication Exhibited by Minor

The probation officer stated that minor was alleged to have committed the murder

when he was 16 years old, at which age he could recognize right from wrong. He had an

individualized education plan (IEP) due to his learning disabilities but was still able to

graduate from high school “within an appropriate time frame,”3 which indicated he had

3 Minor graduated high school on June 16, 2022.

6 an “age-appropriate level of intellectual capacity.” The probation officer further opined

that minor’s actions after the shooting showed the lengths he went to in “avoid[ing]

discovery,” including that he sought medical help at a hospital in Riverside when the

shooting took place in Corona; he told the hospital staff and investigators he was the

victim of random gun violence; and he hid the expended cartridge casing. Further, minor

was on probation for another 15 months after the shooting and had multiple contacts with

law enforcement, but made no attempt to take responsibility for his actions. The

probation officer also noted that the victim was outnumbered and unarmed, and

concluded that these factors, plus the fact that minor shot the victim in the back, showed

minor’s deliberate intent to harm and his disregard for human life. The probation officer

further noted minor’s statement that the victim was a “ ‘random plug’ ” whom he was

going to rob, which showed that he had the intent to harm. Moreover, minor

demonstrated no remorse for his actions.

The probation officer additionally observed that minor committed the current

offense on July 6, 2021, after he had just been granted DEJ on March 16, 2021, showing

a complete disregard for the opportunity the court afforded him. Then, on January 4,

2022, he was arrested on an allegation of attempted murder, which later resulted in an

adjudication for assault with a firearm.

(2) Whether the Minor Can be Rehabilitated Prior to the Expiration of the

Juvenile Court’s Jurisdiction

The probation officer asserted that minor was presently 18 years old and, if the

allegation was found true, the offense would have a baseline term of seven years. The

7 probation officer noted that minor had spent the last two years on a grant of DEJ,

wardship with release at various times on home supervision, release to various family

members, and a commitment to YTEC. Once minor was committed to YTEC, he

received a myriad of services, including substance abuse counseling, aggression

replacement training, moral reconation therapy, individual therapy, family therapy, and

psychiatric services. As minor’s release from YTEC approached, he was linked to his

aftercare services team, which included an individual therapist and a “TAY[4] Peer

specialist.” After being released, minor missed multiple appointments with his TAY peer

and left two housing arrangements she made for him. Furthermore, he only attended six

of his 11 scheduled counseling sessions. He also had poor attendance in his substance

abuse counseling, despite his ongoing use. The probation officer noted minor’s

exhaustion of all juvenile resources and lack of amenability to probation services and

recommended that minor be transferred to a court of criminal jurisdiction, under this

criterion.

(3) Minor’s Previous Delinquent History

Minor’s two-year delinquency history included four law violations, with an

escalation in his criminal conduct. The probation officer noted that, on January 4, 2022,

minor was arrested for attempted murder, which resulted in an adjudication for assault

with a firearm and his commitment to YTEC, which began on February 24, 2022.

4 The record does not appear to define “TAY.”

8 (4) Success of Previous Attempts by the Juvenile Court to Rehabilitate the Minor

Minor was afforded the opportunity to have his first adjudicated offense dismissed

pursuant to a grant of DEJ. However, he continued to engage in delinquent conduct. The

probation officer recognized that minor’s family situation “was not set up” to support his

rehabilitation, as he lived with multiple family members, including his mother and two

adult sisters, after the death of his father in 2008. The probation officer acknowledged

minor’s emotional needs, in light of his father’s death when he was young and his

mother’s disinterest in associating with him. Minor had an abundance of resources to

help him address his feelings through the juvenile justice system, as well as through his

IEP. Despite all the resources, he failed to control his behavior, as evidenced by all his

law violations. The probation officer noted that minor was able to successfully complete

the YTEC program, with “limited documented behavior issue[s],” but his behavior

“waned” after being released. The probation officer noted that the numerous services he

received at YTEC were “all to no avail.”

(5) The Circumstances and Gravity of the Offense Alleged to Have Been

Committed by Minor

The probation officer stated the offense was extremely serious, as it resulted in the

death of a 16-year-old victim. She further noted that minor shot the victim in the back

and hid the expended cartridge casing before being shot himself. He sought medical

treatment in a different city and provided a false narrative to medical providers and law

enforcement as to how he sustained his injury. Minor subsequently went home and

continued his normal activities, as if nothing had occurred, for 15 months before he was

9 arrested. When confronted about his actions, minor admitted to killing the victim, but

made excuses, such as, “ ‘I was sixteen when it happened,’ ” “ ‘I was young and stupid,’

” and “ ‘I wasn’t aware of what was happening.’ ” Furthermore, he never expressed any

remorse. Additionally, subsequent to this killing, minor was involved in another

shooting.

Minor’s Opposition to the Transfer and Dr. Berg’s Report

On May 2, 2023, minor filed an opposition to the motion to transfer. He argued

that the section 707 criteria weighed in favor of him staying in juvenile court. He

essentially argued that he was not criminally sophisticated because he had a “ ‘follower’ ”

personality and therefore did not possess the capacity to plan a criminal act. Minor

attached a report from Dr. Berg, who conducted a psychological evaluation of him on

February 20, 2023. Dr. Berg opined that minor was passive, prone to be a follower, and

highly likely to be influenced by gang members. As to whether or not he could be

rehabilitated prior to the expiration of the juvenile court’s jurisdiction, Dr. Berg stated

that “[f]indings would suggest that he has performed better when he has been in a

structured . . . custody program,” and stated that he was responsive to counseling

activities while at YTEC. Dr. Berg noted minor’s prior delinquency history, and stated

that minor “has not fully benefited from prior attempts of the court to rehabilitate him.”

Dr. Berg recognized minor’s charge of murder was serious but opined that the murder

was likely the result of multiple factors, including the limited support from his parents

and family members and his low intellectual capacity. Dr. Berg concluded that, based on

10 the five criteria in section 707, minor should continue to receive services in the juvenile

justice system.

The District Attorney’s Brief

The District Attorney filed a bench brief in support of the motion to transfer. The

brief stated that section 707 allows a juvenile court to transfer a juvenile matter to a court

of general jurisdiction, and that the burden was on the petitioner to prove the matter

should be transferred by clear and convincing evidence. (Italics omitted.) The brief

evaluated the five criteria listed in section 707, citing to the probation officer’s report.

The District Attorney asserted that minor’s delinquent behavior had become increasingly

violent, and his inability to be rehabilitated prior to the expiration of the juvenile court’s

jurisdiction was “supported by the fact that every single service, treatment, guidance

counseling, therapy, medication, program offered to [him] during the years of 2021 to

present resulted in absolutely no positive result.” The District Attorney concluded that

minor’s actions in the murder were deliberate and extremely violent and were those of a

sophisticated criminal who was well beyond the juvenile court system. The District

Attorney concluded that minor was not amenable to treatment and asked the court to

grant the request to transfer.

Transfer Hearing and Order

On May 8, 2023, the juvenile court held a hearing on the motion to transfer. The

parties entered the following stipulations: (1) the victim died due to complications from a

gunshot wound; (2) minor was an active member of the “Mi Gangsta Familia 13” gang;

and (3) the juvenile court could consider the psychological report that had been included

11 in minor’s opposition to the transfer motion. The juvenile court stated that it read and

considered the probation officer’s report and the briefing filed by the parties, including

Dr. Berg’s evaluation. It then allowed the parties to present their arguments, starting with

the People, noting that they bore the burden of proof by clear and convincing evidence.

After listening to counsel’s arguments, the court took the matter under submission to

review all the material and arguments again and issue a written ruling.

The court held a hearing on June 1, 2023, stating that it had filed a 10-page written

decision that morning. The court stated that, after considering all the materials and

criteria in section 707, it determined that the People had shown by clear and convincing

evidence that minor should be transferred to a court of criminal jurisdiction. The court

specifically noted “this case was heard this year following the change in 2023 to the

burden of proof. And so the Court did apply the new burden of proof to this hearing.”

The court then stated it was granting the motion to transfer and noted that minor was at

least 16 years old at the time of the offense. The court adopted its written order for the

hearing and proceeded to orally go through each of the five criteria. It specifically noted

that minor was 17 years old at the time of the murder and was now 19 years old. The

court stated its belief that minor would require extensive rehabilitative services that could

not be provided during the time the juvenile justice system would have. It observed that

minor’s prior attempts at rehabilitation showed “little to no regard for treatment or

serious attempts at completing court terms and conditions . . . .” The court noted that

minor’s offense was “the most serious type of offense” in that a life was taken

unnecessarily; minor had absolutely no regard for human life; he obtained a gun, went to

12 a meeting, and shot and killed someone who posed no threat. The court also noted that

minor was wounded himself and went to get help yet did not render aid to the victim.

The court then said that its statement of decision (the court’s written order) was

very detailed and contained all the facts and criteria it had considered. The court’s

written order stated: “The court finds the People have met their burden of proof to have

this matter transferred to a court of criminal jurisdiction by clear and convincing evidence

that the minor is not amenable to rehabilitation while under the jurisdiction of the

juvenile court.” The court orally granted the motion, stating: “The Court does find the

minor is not amenable to services by the juvenile court as evidenced by his behavior and

actions.”

DISCUSSION

I. Substantial Evidence Supported the Juvenile Court’s Finding That Minor Was

Not Amenable to Rehabilitation While Under the Juvenile Court’s Jurisdiction

Minor contends the court abused its discretion in finding he was not amenable to

rehabilitation while under the juvenile court’s jurisdiction, since there was no substantial

evidence to support its findings. We disagree.

A. Relevant Law

As amended in January 2023, section 707, subdivision (a)(3), provides that to

“find that the minor should be transferred to a court of criminal jurisdiction, the court

shall find by clear and convincing evidence that the minor is not amenable to

rehabilitation while under the jurisdiction of the juvenile court.” In making its decision,

the court shall consider the following five criteria: (A) “The degree of criminal

13 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,” and (E) “The circumstances and gravity of the offense alleged in

the petition to have been committed by the minor.” (§ 707, subd. (a)(3)(A)-(E); see In re

E.P. (2023) 89 Cal.App.5th 409, 415-416 (E.P.).) “If the court orders a transfer of

jurisdiction, the court shall recite the basis for its decision in an order entered upon the

minutes, which shall include the reasons supporting the court’s finding that the minor is

not amenable to rehabilitation while under the jurisdiction of the juvenile court.” (§ 707,

subd. (a)(3).)

The amendment changed section 707 in two significant ways. “First, in the

previous version of section 707, the prosecution’s burden was by a preponderance of the

evidence. Under the amendment the prosecution’s burden is increased to clear and

convincing evidence.” (E.P., supra, 89 Cal.App.5th at p. 416.) “Second, under the

previous version whether the minor is amenable to rehabilitation while under the

jurisdiction of the juvenile court was one of five factors for the court to consider in

determining whether the case should be transferred to criminal court.” (Ibid.) Under the

amendment, it is “the ultimate question for the court to decide.” (Ibid.) “Nevertheless, in

deciding that question, the amendment requires the court to consider the same five factors

listed in the previous version [of section 707.]” (Ibid.) Now, however, “[t]he analysis of

the five criteria set forth in the statute should be focused through the lens of amenability

to rehabilitation.” (In re S.S. (2023) 89 Cal.App.5th 1277, 1288.) We note that “[u]nder

14 the amended statute, like the previous version, the court has the discretion to conclude

that one or more of the five factors predominate so as to determine the result, even

though some or all of the other factors might point to a different result.” (E.P., at p. 417.)

We review the juvenile court’s order transferring a case to an adult court of

criminal jurisdiction for abuse of discretion.5 (People v. Superior Court (Jones) (1998)

18 Cal.4th 667, 680.) We review the trial court’s factual findings as to the five fitness

criteria under section 707, subdivision (a)(3)(A)-(E), for substantial evidence. (Id. at

p. 681.) “When reviewing a finding that a fact has been proved by clear and convincing

evidence, the question before the appellate court is whether the record as a whole

contains substantial evidence from which a reasonable fact finder could have found it

highly probable that the fact was true.” (Conservatorship of O.B. (2020) 9 Cal.5th 989,

1011.) In conducting our review, we “must view the record in the light most favorable to

the prevailing party below and give appropriate deference to how the trier of fact may

have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn

reasonable inferences from the evidence.” (Id. at pp. 1011-1012.)

5 Minor argues that the court “abused its discretion” in relying on a legally outdated probation report and by making findings that were unsupported by substantial evidence. Nonetheless, he contends this court should employ a de novo standard of review, since we have before us the exact same evidence that was before the juvenile court. However, as minor recognizes, “[w]e review the juvenile court’s finding the minor was unsuitable for treatment in the juvenile court for error under an abuse of discretion standard.” (J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 714.)

15 “[T]he fundamental question before an appellate court reviewing for sufficiency of

the evidence is the same, regardless of the standard of proof that applied below: whether

any reasonable trier of fact could have made the finding that is now challenged on

appeal.” (Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.)

B. Substantial Evidence Supports the Court’s Findings

The juvenile court had jurisdiction over minor until he reached the age of 25.

(§§ 607, subd. (b), 707, subd. (b)(1), 1769, subd. (b); Kevin P. v. Superior Court (2020)

57 Cal.App.5th 173, 198.) In assessing whether he was amenable to rehabilitation before

the expiration of juvenile jurisdiction, the court considered the following five criteria: the

degree of criminal sophistication exhibited (§ 707, subd. (a)(3)(A)), whether minor could

be rehabilitated before the expiration of the juvenile court’s jurisdiction (id., at subd.

(a)(3)(B)), minor’s previous delinquent history (id., at subd. (a)(3)(C)), the success of

previous attempts by the juvenile court to rehabilitate him (id., at subd. (a)(3)(D)), and

the circumstances and gravity of the alleged offense (id., at subd. (a)(3)(E)). A review of

the evidence considered relevant by the juvenile court shows that substantial evidence

supported its ultimate finding that minor was not amenable to rehabilitation while under

the juvenile court’s jurisdiction.

1. Minor’s Criminal Sophistication (§ 707, subd. (a)(3)(A))

The court found that the degree of sophistication exhibited by minor weighed in

favor of a transfer to a criminal jurisdiction court. Referencing the probation report, the

court noted that minor was 17.6 years old at the time of the shooting. It further noted that

minor was with three other individuals at the time of the shooting, whereas the victim

16 was by himself, the victim was shot in the back, and the shooting appeared to have been

premeditated. The court found that minor showed little to no remorse for his actions, as

he referred to the victim as a “ ‘random plug.’ ” It also observed that minor continued to

engage in criminal activity after the shooting, thereby demonstrating a complete lack of

desire to obey the law and live a law-abiding lifestyle. The court concluded that minor

appeared to be a leader rather than a follower in his criminal activities, and that he

appeared “to show planning for his actions, as he secures weapons and engages in these

unlawful activities with others.” The evidence in the probation officer’s report supports

these findings. We additionally note the probation officer’s observation that minor

attempted to avoid being discovered, in that he sought medical help at a hospital in

Riverside, when the shooting took place in Corona; he claimed to be the victim of

random gun violence, even though he was shot after he shot the victim; and he hid the

expended cartridge casing. In view of the evidence, the court properly agreed with the

probation officer’s assessment that minor should be transferred to a court of criminal

jurisdiction, as to this criterion.

Minor contends the juvenile court erred with respect to this criterion because it

rejected Dr. Berg’s findings that minor was a follower, was of below-average

intelligence, and suffered from depression and ADHD. He further argues that the court

erred in relying on the probation officer’s report, which only discussed the alleged crime

and “ignored all the other factors the court was to consider.” We see no error. Section

707, subdivision (a)(3)(A)(iii), provides that, when evaluating this criterion, the court

“shall give weight to any relevant factor, including, but not limited to” things such as

17 “the minor’s age, maturity, intellectual capacity, and physical, mental, and emotional

health at the time of the alleged offense” and “the effect of the minor’s family and

community environment.” (Italics added.) The probation officer’s report focused on the

instant offense and minor’s criminal activity, which it reasonably considered relevant to

“the degree of criminal sophistication exhibited by minor.” (§ 707, subd. (a)(3)(A)(i).)

Dr. Berg focused on the other factors that minor now refers to as “the only pieces of

evidence relevant to [his] amenability to rehabilitation,” such as his home life and his

mental health diagnoses.6 However, the court expressly stated that it read and considered

the probation officer’s report and the briefing filed by the parties, including Dr. Berg’s

evaluation. Thus, contrary to minor’s claim, the court did not ignore the factors that Dr.

Berg discussed. The fact that Dr. Berg provided a different perspective and had a

different opinion on minor’s criminal sophistication than the probation officer did not

require the juvenile court to reach the same conclusion as Dr. Berg. Moreover, we must

give due deference to the juvenile court’s apparent determination that Dr. Berg’s opinion

was not persuasive in light of the entire record. (Conservatorship of O.B., supra,

9 Cal.5th at p. 996.)

6 We note that the probation officer was aware of and considered minor’s family background and psychological issues as demonstrated by the probation department’s discussion of minor’s home life and emotional needs with respect to the criterion of the success of previous attempts by the juvenile court to rehabilitate him. (§ 707, subd. (a)(3)(D).)

18 2. Whether Minor Can Be Rehabilitated Prior to the Expiration of the Juvenile

Court’s Jurisdiction (§ 707, subd. (a)(3)(B))

The court noted that minor was now 19 years old, and juvenile jurisdiction could

be maintained up to age 25, provided he was committed to the pathways to success

program in Riverside County. It observed that the probation officer went through

minor’s lifestyle the past two years and noted the escalation in seriousness of offenses he

committed, as well as the terms and conditions placed on minor for those offenses. The

court noted that minor was previously allowed a grant of DEJ, which was elevated to

wardship, and he was committed to YTEC. There, he was ordered to participate in an

array of programs, but repeatedly and consistently failed to adhere to the court-ordered

terms and conditions. The court further noted that, upon release from the YTEC

program, minor failed to attend many program dates and appointments. Based upon

minor’s lack of success or effort when previous services were offered, the court

concluded that he could not be rehabilitated during the time the juvenile court would have

jurisdiction over him.

The evidence in the probation officer’s report supports all of the court’s findings

regarding the services that were offered to minor over the previous two years and his

failure to participate or succeed in them. We specifically note the evidence shows that

once minor was committed to YTEC, he received a myriad of services, including

substance abuse counseling, individual therapy, family therapy, and psychiatric services.

He completed the YTEC program on August 31, 2022. However, the evidence shows

that, after his release from YTEC, minor’s compliance with his probation conditions was

19 poor, and “he . . . made little to no progress towards maintaining his rehabilitation.” He

relapsed into using marijuana and refused to comply with directives to regularly attend

outpatient treatment. Minor only sporadically participated in his required individual

counseling, and he was continuously in contact with people on active parole/probation.

He missed multiple appointments with his TAY peer and left two housing arrangements

she made for him, and he only attended six of his 11 scheduled counseling sessions. The

probation officer concluded: “Though the youth has not had the opportunity for

commitment to Pathways to Success, his demonstrative history, lack of accountability,

perception of himself as the victim and sustained pattern of violent behavior in the

community, failure to connect to community resources prior and post release from

YTEC, gang entrenchment and admission of being a gang member, writing to youth who

remained in the YTEC program after his release, and continuing to carry weapons post

release from YTEC, are not indicators of an individual to whom juvenile services would

be appropriate.” In view of the evidence, the court properly agreed that transfer to a court

of criminal jurisdiction was warranted.

Minor does not dispute the record but, rather, again asserts that the court rejected

Dr. Berg’s expert opinion that he could be rehabilitated. In spite of the record, minor

claims the prosecution “offered no evidence that the parole interval would not be

sufficient here” and the court’s conclusion was “misguided.” However, the evidence

supports the court’s determination as to this criterion. (See ante.) As the court found,

many juvenile services have been provided to minor, without success.

20 3. Minor’s Previous Delinquent History (§ 707, subd. (a)(3)(C))

The court found that minor had an “extensive prior delinquent history and while as

a ward of the court failed to show any meaningful compliance with terms and conditions

of probation.” Substantial evidence of minor’s history of criminal offenses supported the

court’s finding that this factor weighed in favor of transferring the case. Relying on the

probation report, the court noted that minor’s two-year delinquency history included four

law violations, with an escalation in his criminal conduct. The evidence showed that he

admitted two burglary allegations, carrying a concealed dirk or dagger, and assault with a

firearm. Furthermore, the evidence shows the current pending allegation of murder

occurred in July 2021, which was right after the court granted him an opportunity on

DEJ.

Minor argues that this criterion was not supported by substantial evidence because

the court focused solely on his delinquent history but gave no consideration to the

enumerated factor of the effect of his family and community environment and childhood

trauma on his delinquent behavior. (§ 707, subd. (a)(3)(C)(ii).) He also complains the

court “ignored the good facts,” such as his graduation from high school and improved

stability in a custodial setting. However, the probation report, which the court

considered, included extensive information on minor’s family background, his

relationship with his mother, his education struggles, his unstable home life, his

graduation from high school, and his performance in rehabilitation programs and

custodial settings. Furthermore, Dr. Berg discussed minor’s family life and lack of

support from his parents and siblings, and the court stated that it read and considered Dr.

21 Berg’s evaluation. Simply because the court came to a different conclusion than Dr. Berg

does not mean the court did not consider those factors.

4. Success of Previous Attempts by the Juvenile Court to Rehabilitate Minor

(§ 707, subd. (a)(3)(D))

The court found that “[t]here were multiple attempts to provide rehabilitative

services to the minor, including a YTEC commitment,” but “[e]ssentially nothing

helped,” since there were no changes to his behavior regarding lawfulness. Substantial

evidence supports this finding. (See §§ I.C.2., I.C.3., ante.) Even Dr. Berg

acknowledged that minor “has not fully benefited from prior attempts of the court to

rehabilitate him.”

Minor claims the evidence does not support the court’s finding since he “never

actually had the time to truly access all of [the] services” offered to him. He particularly

points out that, after completing YTEC, he continued to receive some services, but he

“barely had time to access all of these services before he was arrested again in November

2022 for the crime before the court.” The record belies his claim, as he had two years to

access the services offered to him, and any interruption was caused by his own criminal

conduct and arrests.

5. The Circumstances and Gravity of Minor’s Offense (§ 707, subd. (a)(3)(E))

The petition alleges that minor committed murder, and the court stated that “the

charged offense is as serious as it can get,” as a “life was taken unnecessarily.” The court

found that minor’s actions “were done with a complete lack of empathy and a complete

disregard for human life,” in that he obtained a gun, went to a meeting, and shot a

22 defenseless individual in the back. Then, after being shot himself, minor sought medical

care, but did nothing to help the victim. The court found that this criterion weighed in

favor of transferring minor. There was substantial evidence to support the court’s

finding. The probation report stated the offense was extremely serious, as it resulted in

the death of a 16-year-old victim. The evidence showed that minor shot the victim in the

back, then hid the expended cartridge casing before being shot himself. After seeking

medical treatment for his own injury, minor went home and continued his normal

activities, as if nothing had occurred, for 15 months before he was arrested. When

confronted about his actions, minor admitted to killing the victim but made excuses and

expressed no remorse.

Minor asserts that, “[b]ecause the charge remains pending, [he] remains clothed in

the presumption of innocence and has a right to proof beyond a reasonable doubt.” He

further questions the evidence, asserting that there were no eyewitnesses who identified

him as the shooter, and the evidence only showed “that he was involved.” He also states

there was limited information about the other people in the car and suggests that he might

have been a follower who was “being made the scapegoat of the entire incident.” He

further asserts that, “[w]ithout more evidence, it was impossible to determine the actual

shooter.” However, the evidence showed that minor admitted that he had planned to rob

the victim of marijuana, shot the victim, and then hid the expended cartridge casing.

Minor claimed he shot the victim due to feeling “paranoid.” Further, minor’s suggestion

that he might have been a scapegoat is pure speculation. In any event, section 707,

subdivision (a)(3)(E)(ii), required the court to evaluate such factors as “the actual

23 behavior of the person, the mental state of the person, the person’s degree of involvement

in the crime, [and] the level of harm actually caused by the person.” The court properly

evaluated the evidence, which showed that minor intentionally shot and killed another

minor and seemingly had no reservations or remorse.

In sum, we must view the evidence in the light most favorable to the judgment. In

doing so, we conclude that substantial evidence supports the juvenile court’s “ultimate”

finding that minor is not amenable to rehabilitation while under the jurisdiction of the

juvenile court. (E.P., supra, 89 Cal.App.5th at p. 416; Conservatorship of O.B., supra,

9 Cal.5th at pp. 1011-1012; § 707, subd. (a)(3).) Accordingly, the court properly ordered

the matter transferred to a court of criminal jurisdiction.

II. Minor Forfeited His Claim That the Court Erred in Relying on the Probation Report,

and He Has Failed to Establish Ineffective Assistance of Counsel

Minor contends the trial court abused its discretion in relying on the probation

report since it analyzed the case under “the old standard of law.” He specifically points

out that the probation report made no mention of the change in the standard of proof

required to find a transfer appropriate, and it failed to include any discussion on his

amenability to treatment. Minor further argues the court abused its discretion in failing to

require the probation department to amend its report to reflect the changes in the law,

which resulted in his fundamental rights to due process and a fair hearing being violated.

Minor also claims it is reasonably probable that, had the probation report used the new

standard, its recommendation would have been different. Finally, he asserts that the case

should be remanded for an updated probation report.

24 The People argue that minor has forfeited his claims by failing to object to the

probation report at the transfer hearing. To the extent minor is arguing that the court

erred in admitting the probation report and that the case should be remanded for the

probation report to be updated, we agree that he has forfeited such claims. (People v.

Abel (2012) 53 Cal.4th 891, 924 [“A defendant who fails to make a timely objection or

motion to strike evidence may not later claim that the admission of the evidence was

error . . . .”]; see People v. Seijas (2005) 36 Cal.4th 291, 302 [“ ‘[D]efendant’s failure to

make a timely and specific objection’ on the ground asserted on appeal makes that

ground not cognizable.”].)

Acknowledging his failure to object to the use of the probation report, minor

argues that his counsel rendered ineffective assistance of counsel (IAC) by failing to

object.7,8 A defendant who claims IAC must establish that his counsel’s performance

was deficient under an objective standard of professional competency, and that there is a

reasonable probability that, but for counsel’s errors, a more favorable determination

would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703.) If the defendant

7 In the alternative, minor argues that we can exercise our discretion to consider the issues in the interests of justice and fundamental due process. We will consider the issues under his IAC claim.

8 We note that, in his reply brief, minor additionally asserts that his counsel also erred in writing his opposition to the transfer under the old standard of proof and failed to discuss amenability. Minor did not raise this claim in his opening brief. “Withholding a point until the reply brief deprives the respondent of an opportunity to answer it, however. Hence, a point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for failure to present it before. [Citations.] No good cause is shown here.” (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)

25 makes an insufficient showing on either one of these components, the claim fails. (Ibid.)

We conclude that defendant has not established that he was prejudiced.

A. Minor Has Failed to Establish IAC

Minor argues that his counsel failed to object to the court relying on the probation

report and failing to request the court to order an amended one. He asserts the probation

report was presumably written “under the old preponderance of the evidence standard and

not the clear and convincing standard” and thus claims it “did not accurately reflect the

proper standard by which the report should have been written and how the court should

determine the fitness of the juvenile.” Minor contends the focus of the probation report

should have been amenability to rehabilitation in the juvenile system, which is now the

dispositive factor in whether to transfer a juvenile to a court of criminal jurisdiction.

(Cal. Rules. of Court, rule 5.770 (rule 5.770).) He concludes that, had the report been

written under the new standard, it is reasonably probable it would have recommended

that he was amenable to treatment, and the court would have followed the

recommendation.

The People argue that the amendments to section 707, subdivision (a), did not

require that a probation officer base a transfer recommendation on clear and convincing

evidence. We agree. Contrary to minor’s claim, the amended statute does not require the

probation officer to write the report under any particular standard. The statute simply

requires the probation officer to “submit a report on the behavioral patterns and social

history of the individual.” (§ 707, subd. (a)(2).) The probation officer did so. Further,

the statute only requires the court to make its finding of amenability by clear and

26 convincing evidence, and the court did so. Section 707 provides: “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 order to find that the minor should be

transferred to a court of criminal jurisdiction, the court shall find by clear and convincing

evidence that the minor is not amenable to rehabilitation while under the jurisdiction of

the juvenile court.” (§ 707, subd. (a)(3), italics added.)

The court was well aware of the change in the law to the clear and convincing

standard. When it proceeded to allow the parties to present their arguments at the

hearing, the court stated, “We’ll start with the People since they bear the burden of proof

by clear and convincing evidence.” (Italics added.) The court took the matter under

submission and then held a hearing to announce its ruling. At that hearing, it stated:

“After reviewing and considering all reports, evidence and criteria, pursuant to Welfare

and Institutions Code Section 707(a), paragraph (3), subparagraphs (A) through (E), the

Court has determined that the People have shown by clear and convincing evidence that

the minor should be transferred to a court of criminal jurisdiction.” (Italics added.) The

court specifically noted: “this case was heard this year following the change in 2023 to

the burden of proof. And so the Court did apply the new burden of proof to this hearing.”

(Italics added.) The written decision also states: “After reviewing and considering all

reports, evidence and criteria pursuant to WIC 707(a)(3)(A)-(E), the court has determined

by clear and convincing evidence that the minor should be transferred to the court of

criminal jurisdiction.” (Italics added.) Moreover, in its written decision, the court

27 acknowledged the probation report was written in December 2022, which was prior to the

change in law. Thus, the court viewed the probation report appropriately.

In his reply brief, minor claims the court “does not mention amenability in its

conclusory findings; the court only mentions transferability, the old standard, and notably

does not mention the new clear and convincing standard of proof.” He stresses that rule

5.770 makes clear that “ ‘non-amenability to rehabilitation’ is an element that must be

proven by the prosecution by clear and convincing evidence, separate and apart from the

5 criteria listed in section 707.” Minor then claims the probation report and the court

“ignore” the “shift away from transferability and towards amenability.” However, this

claim is clearly belied by the record. At the hearing, the court put specific comments on

the record regarding its analysis of the five factors and concluded, “The Court does find

the minor is not amenable to services by the juvenile court as evidenced by his behavior

and actions.” (Italics added.) In its written decision, the court found that “minor’s prior

lack of rehabilitation by efforts of the probation department indicate to this court that the

minor is not amenable to rehabilitation and most likely would not succeed if granted a

juvenile court disposition.” (Italics added.)

We conclude that minor has not established there was a reasonable probability of a

different result had his counsel objected to the court’s use of the probation report because

it was written prior to the amendments to section 707. Ultimately, the court reviewed all

the evidence, applied the correct standard of clear and convincing evidence, and found

that minor was not amenable to rehabilitation while under the jurisdiction of the juvenile

court. (§ 707, subd. (a)(3).)

28 III. No Remand is Needed

We granted minor’s request to file supplemental briefing on March 7, 2024. In his

supplemental brief, he contends that Senate Bill No. 545 (Senate Bill 545) made changes

to section 707 that would benefit him, particularly in the juvenile court’s inquiry into his

childhood trauma and involvement in the child welfare or foster care system. Minor

claims the court failed to consider any of his childhood trauma, including the death of his

primary caregivers, interactions with the welfare system, and continual rejection by his

mother. He also again asserts that rule 5.770 changed to reflect the necessity of

focusing on amenability to treatment as a separate factor and “not one just subsumed into

one of the individual criteria to be measured.” Thus, minor argues that remand is

required for another transfer hearing, so the court can apply the changes to section 707

and rule 5.770. The People concede, and we agree, that the amendments made to section

707 by Senate Bill 545 apply retroactively to minor, since the judgment in this case is not

yet final. (In re S.S. (2023) 89 Cal.App.5th 1277, 1288-1289 (S.S.).) However, the

People contend that remand is unwarranted because the court already considered the

relevant factors under amended section 707; thus, a new transfer hearing would not yield

a different result. We conclude that remand is unnecessary.

At the time of minor’s transfer hearing, section 707, subdivision (a)(3), provided

that the juvenile court “may” give weight to any relevant factor, including those specified

in the statute. (Former § 707, subd. (a)(3); Stats. 2022, ch 330, § 1.) Subsequently, the

Legislature enacted Senate Bill 545 (2023-2024 Reg. Sess.), effective January 1, 2024,

which changed “may” to “shall” and rendered consideration of any relevant factor

29 mandatory. (§ 707, subd. (a)(3), as amended by Stats. 2023, ch. 716, § 1.) Senate Bill

545 also amended the statute by adding “the existence of [childhood trauma]” and “the

minor’s involvement in the child welfare or foster care system” as factors to consider in

evaluating the minor’s degree of criminal sophistication. (§ 707, subd. (a)(3)(A)(ii).)

While Senate Bill 545’s amendments did make consideration of the relevant

factors mandatory by changing the language from “may give weight” to “shall give

weight,” the record in this case indicates the juvenile court gave weight to the relevant

factors. Specifically, the court stated twice that it considered all of the criteria in section

707, subdivision (a)(3)(A-E). The court went through a detailed analysis of each

criterion before ultimately finding minor’s actions to be “violent and heartless,” in that he

chose to “engage in serious and violent activity, and take the life of another human

being.” As to the degree of criminal sophistication exhibited by minor, the court noted

that his actions were apparently premeditated, he showed little remorse, and before and

after the instant offense, he continued to engage in criminal activity and appeared to

enjoy such lifestyle.

Minor argues the court did not consider any of the childhood trauma he suffered in

determining whether he was amenable to rehabilitation. However, the record belies this

claim. We observe that, at the time of the court’s order, section 707 did include

childhood trauma as a factor; Senate Bill 545 merely added the words “the existence of”

before “childhood trauma.” (§ 707, subd. (a)(3)(A)(ii).) Further, the court stated that it

read and considered the probation officer’s report and the briefing filed by the parties,

including Dr. Berg’s evaluation, which included extensive information concerning

30 minor’s family background, relationship with his mother, and unstable home life. We

note that, just because the court did not discuss this evidence in its analysis of each

criterion under section 707, subdivision (a)(3), does not mean the court failed to consider

it.

As to the newly added criterion regarding minor’s involvement in the child

welfare or foster care system, the record is void of any evidence suggesting he had any

such involvement. To the contrary, the probation report states that minor had no

dependency history.

Finally, as to the contention that rule 5.770 requires the court to focus on

amenability to treatment as a separate factor and “not one just subsumed into one of the

individual criteria to be measured,” we observe that rule 5.770 expressly provides the

juvenile court may order transfer “if the court finds by clear and convincing evidence

each of the following: [¶] (1) The youth was 16 years or older at the time of any alleged

offense . . . ; [¶] (2) The youth should be transferred to the jurisdiction of the criminal

court based on an evaluation of all the criteria in [section 707, subdivision (a)(3)]; and [¶]

(3) The youth is not amenable to rehabilitation while under the jurisdiction of the

juvenile court.” (Rule 5.770(b).) Thus, by its very terms, the rule mandates an

evaluation of the five statutory criteria set forth in section 707 as part of the court’s

determination on a motion to transfer. As we recently explained in In re Miguel R.

(2024) 100 Cal.App.5th 152, 166, under section 707, the juvenile court is to consider

each of the five statutory factors, determine the extent to which each factor suggests the

minor may be amenable to rehabilitation, and weigh the factors in order to make an

31 ultimate determination of whether, collectively, the factors show the minor is amenable to

rehabilitation. The court here properly considered all the evidence, evaluated the five

criteria, and found there was clear and convincing evidence that minor was not amenable

to treatment while under the jurisdiction of the juvenile court.

Ultimately, there is no reason to believe the juvenile court would reach a different

conclusion regarding minor’s amenability to rehabilitation if it applied the current version

of section 707. (See S.S., supra, 89 Cal.App.5th at p. 1289 [failure to apply amendments

to § 707 is reviewed for harmlessness under People v. Watson (1956) 46 Cal.2d 818,

836.) Thus, we conclude no remand is needed.

DISPOSITION

The court’s order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J. We concur:

McKINSTER Acting P. J.

CODRINGTON J.