Filed 3/7/24 (unmodified opn. attached) CERTIFIED FOR PUBLICATION
COURT OF APPEAL -- STATE OF CALIFORNIA FOURTH DISTRICT DIVISION TWO
In re MIGUEL R., a Person Coming Under E082250 the Juvenile Court Law. ________________________________________ (Super.Ct.No. J279577)
THE PEOPLE, The County of San Bernardino Plaintiff and Respondent, v. ORDER MODIFYING MIGUEL R., OPINION Defendant and Appellant. _______________________________________ [NO CHANGE IN JUDGMENT]
THE COURT
IT IS ORDERED that the opinion filed in this matter on March 1, 2024 is modified as follows:
In part (1) of the last sentence on page 9, replace the phrase “by probation officer Miguel Ramirez-Gamboa” with the phrase “by a probation officer”.
Other than this modification, the opinion remains unchanged. This modification does not affect the judgment.
CERTIFIED FOR PUBLICATION
MENETREZ J. We concur:
MILLER Acting P. J.
FIELDS J.
1 Filed 3/1/24 (unmodified opinion) CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re MIGUEL R., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, E082250 Plaintiff and Respondent, (Super.Ct.No. J279577) v. OPINION MIGUEL R.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Tony Raphael,
Judge. Affirmed.
Gerald J. Miller, 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, Collette C. Cavalier and
Maxine Hart, Deputy Attorneys General, for Plaintiff and Respondent.
1 This is Miguel R.’s second appeal from an order transferring him from the juvenile
court to criminal court under Welfare and Institutions Code section 707 (unlabeled
statutory references are to this code). In 2019, a juvenile wardship petition alleged that
Miguel committed murder and other offenses when he was 17 years old. In 2022, the
juvenile court granted the People’s motion under section 707 to transfer Miguel to
criminal court. Miguel appealed from the order, and we affirmed in an unpublished
opinion. (In re Miguel R. (Sept. 22, 2022, E078528) [nonpub. opn.].) The juvenile court
accordingly transferred the matter to criminal court in January 2023, after the remittitur
issued.
Effective January 1, 2023, Assembly Bill No. 2361 (2021-2022 Reg. Sess.)
(Assembly Bill 2361) amended section 707 in several ways, including by raising the
standard of proof to clear and convincing evidence on the issue of whether a juvenile
should be transferred. (In re E.P. (2023) 89 Cal.App.5th 409, 416 (E.P.).) The criminal
court transferred the matter back to the juvenile court to address the statutory changes.
The juvenile court found by clear and convincing evidence that Miguel is “not amenable
to the care, treatment and training programs available through the juvenile court system”
and again ordered him transferred to criminal court. Miguel appeals from that order,
arguing that the juvenile court misapplied the statutory changes and that the prosecution
did not carry its burden under the clear and convincing evidence standard. (§ 801,
subd. (a).) While the appeal was pending, Senate Bill No. 545 (2023-2024 Reg. Sess.)
(Senate Bill 545) further amended section 707.
2 We affirm. We publish this opinion to clarify certain points about application of
the recent amendments to section 707, including that (1) the statute does not require that
any one factor be given greater weight than others in determining whether the minor is
amenable to rehabilitation while under the jurisdiction of the juvenile court, and
(2) although the current version of section 707 expressly requires consideration of the
minor’s history of involvement in the child welfare or foster care system, human
trafficking, sexual abuse, or sexual battery, and prior versions of the statute did not
contain that express requirement, evidence of any such history was nonetheless relevant
under prior versions of the statute.
BACKGROUND 1 A. The Alleged Offenses
One night in January 2019, Steve N. and his wife, Keren N., were walking near
their home when they saw three male teenagers dressed in black pants and hoodies
approaching. Steve told Keren to get behind him and placed himself between her and the
teenagers. The teens stopped in front of Steve and Keren and blocked their path. One
teenager, later identified as Miguel, pointed a gun at Steve’s head. Keren heard the
gunman and one of the other two say, “‘Hey, motherfucker, what you got?’” Steve
lunged toward the gunman, and a struggle ensued. Keren saw a flash, heard Steve yell,
1 We take the facts concerning the offenses from our prior opinion, which summarized the description of the offenses contained in the probation report. (In re M.R., supra, E078528.)
3 and realized that Steve had been shot. Steve was taken to the hospital, where he died
during surgery.
An officer searching the area shortly after the shooting stopped three teenagers
matching the suspects’ description, two of whom were detained, while the third fled on
foot. Other officers searching in the area where the third suspect had fled found a black
backpack that contained a loaded .38-caliber revolver with one spent casing under the
hammer, a black T-shirt, a black sweatshirt, a cell phone, and other items. In a nearby
parking lot, officers found a wallet containing Miguel’s California identification card,
and a few feet away they found six additional bullets matching the rounds in the revolver.
After initially providing officers with false information, both of the two detained
coparticipants made statements incriminating Miguel, identified the backpack containing
the gun as Miguel’s, and identified Miguel as the shooter in photo lineups. Miguel was
arrested at school the following morning. A search of Miguel’s home revealed shoes and
other clothing matching those worn by the shooter, as well as a box of .38-caliber
ammunition matching that found in the revolver.
Text messages found on Miguel’s cell phone and statements by his mother
revealed that Miguel had texted his mother shortly after the shooting, saying he was
hiding from the police. He could see police nearby and a helicopter overhead. Miguel’s
mother told him to stay hidden. She drove to find him and saw police and blocked
streets. The text messages included four maps showing locations where Miguel was
hiding, and their communications continued over the course of almost four hours before
Miguel’s mother was able to pick him up. Miguel’s mother identified the backpack,
4 wallet, and identification found by police as belonging to Miguel, but she denied having
seen the gun or ammunition before.
Surveillance video obtained by police showed Miguel, wearing a backpack
matching that found by police, boarding a bus heading towards Ontario with his two
coparticipants a few hours before the shooting. All three were wearing black hooded
sweatshirts, dark jeans, and black shoes. They can be seen sitting together and talking
before exiting the bus together. Other surveillance videos show the three youths at
various locations in the vicinity before and after the shooting.
B. The Petition and the Initial Transfer Proceeding
In January 2019, a juvenile wardship petition (§ 602, subd. (a)) was filed, alleging
that when Miguel was 17 years old he committed one count of murder (Pen. Code, § 187,
subd. (a)), one count of second degree robbery (Pen. Code, § 211), and one count of
attempted second degree robbery (Pen. Code, §§ 211 & 664).
The prosecution immediately moved to transfer Miguel to criminal court. In
April 2019, the probation department submitted a report pursuant to subdivision (a)(1) of
section 707, recommending transfer.
The transfer hearing began in April 2021. The sole prosecution witness was
Cynthia Diaz, the probation officer who prepared the report. Diaz explained her
methodology, the interviews that she conducted, and the records that she reviewed in
preparing the report. The report described Miguel’s personal history and included
statements from Miguel and his mother. Miguel’s parents had been together for 30 years
and had six children. Miguel lived with his parents and two younger siblings, aged 10
5 and 11. Miguel said that he got along well with everyone, including his parents and
siblings, and his mother agreed. Before he was arrested, Miguel was a senior in high
school with grades ranging from several A’s to one D. Miguel was not involved in a
gang. Miguel denied using drugs and said that he did not like alcohol, which he tried
when he was 14 years old. Miguel had not been a victim of sexual or physical abuse.
The report recommended transfer to criminal court on the basis of four of the five
statutory criteria: the degree of criminal sophistication exhibited by the minor, whether
the minor can be rehabilitated before expiration of the juvenile court’s jurisdiction, the
success of previous attempts by the juvenile court to rehabilitate the minor, and the
circumstances and gravity of the offense. The report determined that the fifth criterion—
the minor’s delinquency history—weighed in favor of finding that Miguel was suitable
for rehabilitation under the juvenile court’s jurisdiction.
Diaz reviewed a number of the detention behavior summaries documenting
Miguel’s conduct in juvenile hall over the two years since she had prepared her report.
Miguel was involved in eight incidents described as “code reds,” all but one of which
involved assaultive behavior on other minors. Although Miguel had obtained his high
school diploma and enrolled in online community college courses, Diaz testified that
Miguel was currently “suspended until further notice” from participating in the college
program for having accessed unauthorized websites, and he had previously been
suspended for a semester because of a plagiarism incident. On the basis of her review of
Miguel’s detention behavior summaries, Diaz continued to believe that Miguel was not
amenable to treatment by juvenile services and should be transferred to adult court.
6 In December 2021, Shannon Johnson, Psy.D., a staff psychologist at Patton State
Hospital, testified on Miguel’s behalf. Johnson met with Miguel in July and August for a
total of about three and one-half hours and submitted a psychological evaluation report
and a risk assessment report.
Johnson testified that Miguel had demonstrated insight and expressed regret and
remorse for the impact of his behavior on his family and on the victim’s family, and
Johnson believed that Miguel’s contrition was honest and genuine. She testified that
Miguel had made progress in his rehabilitation, as evidenced by his ability to view his
detention as an opportunity to recreate himself and to consider how he would like his life
to be in the future. Regarding her risk assessment evaluation, Johnson opined that
Miguel was unlikely to seek out violence and that his strong family support mitigated his
risk of reoffending, although if Miguel were subjected to violent conduct by someone, he
was likely to defend himself. She believed that transferring Miguel to an adult
incarceration setting would be destabilizing and have a negative impact on his
functioning and eventual reintegration into the community. When asked if Miguel would
present a low risk of reoffending or engaging in violence if he were treated in a juvenile
facility, Johnson assessed Miguel’s risk as “moderate” rather than “low.”
On cross-examination, Johnson acknowledged that Miguel had continued to
engage in violent behavior during his detention, but she described that behavior as largely
“situational” and related to his incarceration. Johnson conceded that Miguel’s ongoing
use of aggression to manage conflict did increase his risk of reoffending and that he is
likely to respond with violence if he is challenged or approached in an aggressive way.
7 Johnson was also asked during cross-examination about an incident that occurred
in October 2021. A staff member had redirected Miguel to take it easy on the other team
during a soccer tournament, and Miguel responded: “‘You are telling me to chill out[?]
You know I’m a murderer on the set.’” When questioned about his response, Miguel
said, “‘I’m a murderer. I kill people. So what?’” Johnson acknowledged that the
statement was not something that Miguel would have said during their meetings, and she 2 stated that if he had said that to her, it would have changed her opinion. When asked if
the statement demonstrated that Miguel lacked remorse and empathy, Johnson said that
she could not tell without knowing more about the “situational factors” and
circumstances in which the incident occurred. She described ways in which the remark
may have been mere “posturing” or an expression of “hopelessness.”
After Johnson’s testimony, the prosecution offered to recall Diaz as a rebuttal
witness to testify regarding the detention behavior summary that reported Miguel’s
October 2021 statements and also to establish that Miguel was again not enrolled in
college classes that semester. Both counsel agreed to submit on the document containing
the October 2021 statements and stipulated to the fact that Miguel was not attending
online college classes that semester, so Diaz was not recalled. Miguel submitted 10
character reference letters, including one written in Spanish and not translated. Some of
2 The court overruled defense counsel’s objections to the line of questioning, explaining that it would not consider Miguel’s statement for its truth but would allow the question as a hypothetical regarding Johnson’s opinion: If Miguel had made such statements, how would that impact her evaluation, recommendation, and diagnosis?
8 the letters’ authors had known Miguel since he was a young child. The letters described
Miguel as smart, good, respectful, well-behaved, and polite.
C. The First Ruling and Appeal
In 2022, the juvenile court granted the People’s motion to transfer Miguel to
criminal court. Miguel appealed from the order, arguing that it should be reversed
because the juvenile court improperly relied on the evidence concerning the
October 2021 incident. (In re Miguel R., supra, E078528.) He argued that “absent any
evidence as to the ‘tone’ or ‘context’ of the remarks, they are ‘worthless as an indication
of [Miguel’s] purported state of mind.’” (In re Miguel R., supra, E078528.) We rejected
the arguments and affirmed in an unpublished opinion. (In re Miguel R., supra,
E078528.)
After the remittitur issued, the juvenile court transferred the matter to criminal
court in January 2023. The criminal court transferred the matter back to the juvenile
court to address recent amendments to section 707 under Assembly Bill 2361.
D. The Second Transfer Proceeding
The second transfer hearing was held in August 2023, when Miguel was 21 years
old. The parties stipulated that the court could take judicial notice of all of the evidence
from the initial proceeding. The prosecution introduced two documents prepared by the
probation department in April 2023: (1) a court memo prepared by probation officer
Miguel Ramirez-Gamboa addressing Miguel’s conduct while housed in county jail, and
(2) an Assembly Bill 2361 transfer memo prepared by probation officer Paul Vargas.
9 Three probation officers testified for the prosecution: Diaz, Vargas, and Shannon Kim.
No witnesses testified on behalf of Miguel.
In preparation for the hearing, Diaz reviewed the 2019 probation report that she
had authored and the 2023 transfer memo prepared by Vargas. Diaz understood the new
standard for transferring minors to criminal court. Diaz’s opinion about whether Miguel
could be rehabilitated by the juvenile justice system remained unchanged: She did not
“believe he’d be appropriate to remain in juvenile hall.” Diaz based her opinion on the
fact that Miguel was almost 22 years old and juvenile jurisdiction would end when he
turned 25. She explained that given the severity of the offenses and the sophistication
involved, Miguel “would not have enough time remaining to be rehabilitated in the
juvenile system.”
Vargas testified that he never directly supervised Miguel. In preparing the
April 2023 transfer memo, Vargas reviewed Diaz’s 2019 probation report, the police
report concerning the alleged offenses, and Miguel’s juvenile delinquency history.
Vargas also spoke with Kim about the ARISE program, which is the secure youth
treatment facility in San Bernardino County.
Vargas opined that Miguel could not be rehabilitated by the juvenile justice
system. Vargas based his opinion on the “severity of the crime, [Miguel’s] active role in
it, the sophistication, as well as the limited time that he has under the juvenile
jurisdiction.” Vargas explained that Miguel would age out of the juvenile system at 25
and thus would have about three and one-half years remaining in juvenile jurisdiction,
10 which was not sufficient time to rehabilitate. Vargas’s supervisor agreed with Vargas’s
analysis.
Kim worked in the field supervision unit of the ARISE program. She reviewed
the reports prepared by Diaz and Vargas and likewise opined that Miguel could not be
rehabilitated under juvenile court jurisdiction. Kim considered the factors relevant to
qualification for the ARISE program, including the severity of the crime, Miguel’s
criminal history, whether treatment or rehabilitative programs previously had been
offered and the status of any prior programs, and whether the treatment offered in the
ARISE program would benefit Miguel.
E. The Ruling
In August 2023, the juvenile court issued a detailed ruling and found “by clear and
convincing evidence that the youth is not amenable to the care, treatment and training
programs available through the juvenile court system under the statutory criteria,” and the
court accordingly ordered Miguel transferred to criminal court. The court adopted its
description of the offenses and various findings from its initial ruling in January 2022, as
modified by the new clear and convincing evidence standard of proof, and it addressed
each of the five statutory criteria in section 707, subdivision (a)(3) (§ 707, subd. (a)(3)).
The court found that the following factors weighed in favor of transferring Miguel
to criminal court: the degree of criminal sophistication, the success of previous attempts
by the juvenile court to rehabilitate the minor, and the circumstances and gravity of the
offenses. The court found that the prosecution had not carried its burden of proving that
11 Miguel’s delinquency history weighed in favor of transferring him or that he could not
“be rehabilitated prior to the expiration of the juvenile court’s jurisdiction.”
With respect to the degree of criminal sophistication, the court adopted its initial
ruling, as modified by the clear and convincing evidence standard, and found that Miguel
“possesse[d] a higher level of criminal sophistication” because Miguel armed himself,
participated in a preplanned armed robbery that was inherently dangerous and showed
indifference to human life, and “willfully [shot] the victim for his failure to comply.”
The court also found that Miguel’s conduct after the shooting exhibited “a higher level of
criminal sophistication” in that he fled, attempted to conceal his involvement by changing
his clothing and appearance, and then lied to police about his involvement.
As for whether Miguel “can be rehabilitated prior to the expiration of the juvenile
court’s jurisdiction” (§ 707, subd. (a)(3)(B)(i) (§ 707(a)(3)(B)(i)), the court found that the
evidence was “simply insufficient for the Court to draw a conclusion as to whether or not
the youth can be rehabilitated.” The court noted that for this criterion it was evaluating
whether Miguel could be rehabilitated “within the time available.” The court described
evidence showing that Miguel could be rehabilitated within the time remaining, such as
Miguel’s behavior in county jail, to which he was moved after the initial transfer hearing.
But the court also noted that Miguel’s detention period in juvenile hall, including the
statements Miguel made in October 2021 about being a murderer, showed that “despite
having received rehabilitative services, [Miguel would] still be engaging in negative and
callous behaviors.” The court also expressed concern that the remaining available
12 juvenile jurisdiction was not a sufficient period for Miguel to be rehabilitated in the
ARISE program.
With respect to Miguel’s “previous delinquent history” (§ 707, subd. (a)(3)(C)(i)),
the court found that Miguel had a single petition in 2016 alleging two nonviolent felony
counts. Because that history was minimal and “not aggravated,” it weighed in favor of
denying the transfer motion.
Regarding the “[s]uccess of previous attempts by the juvenile court to rehabilitate”
Miguel (§ 707, subd. (a)(3)(D)(i)), the court found that Miguel had been provided with
the entire spectrum of services, including probation, community service, wraparound
services, gang intervention classes, house arrest, and a six-month out-of-home placement
that included counseling. Miguel did not take probation or “the services received
seriously and made no effort to modify his behavior.”
With respect to “[t]he circumstances and gravity of the offense alleged” (§ 707,
subd. (a)(3)(E)(i)), the court found: Miguel “engaged in a highly dangerous activity that
he had to have known would result in harm to another person. Yet he not only willingly
engaged in the dangerous activity, but he was seemingly committed to completing it at all
costs. This conduct resulted in the death of [Steve]. [Miguel] inflicted the greatest injury
on a person that can be inflicted. He stole a person’s life. The consequences are
irreparable. [Steve] is dead and he shouldn’t be. There is no amount of restitution or
good will that can change that or adequately compensate [Steve’s] family. [¶] There are
no mitigating factors related to the circumstances and gravity of the offense. As such, the
13 factors related to this criteria weigh heavily in favor of a finding that the minor should be
transferred to adult court.”
DISCUSSION
Miguel argues that we should reverse the most recent transfer order because
(1) the juvenile court misapplied recent amendments to section 707, and (2) the evidence
was insufficient to support the juvenile court’s finding that he “was not amenable to
rehabilitation in the juvenile court.” We are not persuaded.
A. Legal Framework
Section 707 sets forth the procedures for transferring a minor from juvenile court
to criminal court. It provides that whenever a minor aged 16 years or older is alleged to
have committed a felony, the prosecutor may move “to transfer the minor from juvenile
court to a court of criminal jurisdiction.” (§ 707, subd. (a)(1).) The prosecution bears the
burden of proving that the minor should be transferred. (Cal. Rules of Court,
rule 5.770(a).)
The Legislature amended section 707 in 2023 and 2024. Effective
January 1, 2023, Assembly Bill 2361 amended section 707(a)(3) by adding the following
italicized language: “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. In making
14 its decision, the court shall consider the criteria specified in subparagraphs (A) to (E),
inclusive. If the court orders a transfer of jurisdiction, the court shall recite the basis for
its decision in an order entered upon the minutes, 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(a)(3), italics added.)
The five statutory criteria listed in subparagraphs (A) through (E) of
section 707(a)(3) were not amended by Assembly Bill 2361. Those criteria are (1) “the
degree of criminal sophistication exhibited by the minor” (§ 707, subd. (a)(3)(A)(i)),
(2) “[w]hether the minor can be rehabilitated prior to the expiration of the juvenile court’s
jurisdiction” (§ 707(a)(3)(B)(i)), (3) “[t]he minor’s previous delinquent history” (§ 707,
subd. (a)(3)(C)(i)), (4) “[s]uccess of previous attempts by the juvenile court to rehabilitate
the minor” (§ 707, subd. (a)(3)(D)(i)), and (5) “[t]he circumstances and gravity of the
offense alleged in the petition to have been committed by the minor” (§ 707,
subd.(a)(3)(E)(i)). The statute sets forth a nonexhaustive list of relevant factors for the
court to consider with respect to each of the five criteria. (§ 707, subd. (a)(3)(A)(ii),
(B)(ii), (C)(ii), (D)(ii), (E)(ii).)
Effective January 1, 2024, Senate Bill 545 amended section 707 to require that
with respect to each of those five criteria the juvenile court “shall give weight to any
relevant factor,” including the specific factors listed as relevant to each criterion. (§ 707,
subd. (a)(3)(A)(ii), (B)(ii), (C)(ii), (D)(ii), (E)(ii).) The previous version of the statute
made consideration of those factors discretionary, not mandatory. (Former § 707,
subd. (a)(3)(A)(ii), (B)(ii), (C)(ii), (D)(ii), (E)(ii).) With respect to the degree of criminal
15 sophistication, Senate Bill 545 also added new mandatory factors for the court to
consider: whether the minor has had any involvement in the child welfare or foster care
system and whether the minor has been “a victim of human trafficking, sexual abuse, or
sexual battery.” (§ 707, subd. (a)(3)(A)(ii).)
We review the juvenile court’s ruling on a transfer motion for abuse
of discretion. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 680.) “The
abuse of discretion standard is not a unified standard; the deference it calls for varies
according to the aspect of a trial court’s ruling under review. The trial court’s findings of
fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo,
and its application of the law to the facts is reversible only if arbitrary and capricious.”
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.) The juvenile court’s
findings with respect to each of section 707’s five criteria are findings of fact reviewed
for substantial evidence. (Jones, at pp. 682-683.) In conducting substantial evidence
review, we draw all reasonable inferences in support of the court’s findings. (People v.
Cardenas (2020) 53 Cal.App.5th 102, 119, fn. 11 (Cardenas).)
Likewise, we review for substantial evidence the juvenile court’s ultimate finding
“that the minor is not amenable to rehabilitation while under the jurisdiction of the
juvenile court.” (§ 707(a)(3).) Because the juvenile court must make that finding by
clear and convincing evidence, we “determine whether the record, viewed as a whole,
contains substantial evidence from which a reasonable trier of fact could have made the
finding of high probability demanded by” the clear and convincing evidence standard.
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)
16 B. Assembly Bill 2361
Miguel argues that the juvenile court’s ultimate determination that Miguel is “not
amenable to rehabilitation while under the jurisdiction of the juvenile court” (§ 707(a)(3))
is incompatible with the court’s finding under the second criterion that the People failed
to produce sufficient evidence that Miguel could not “be rehabilitated prior to the
expiration of the juvenile court’s jurisdiction” (§ 707(a)(3)(B)(i)). He argues that
Assembly Bill 2361’s amendments to section 707 “make clear that the youth’s
amenability to rehabilitation constitutes the focus of and the single most important factor
in determining whether to grant the requested transfer.” (Italics added.) The People
counter that Miguel “incorrectly conflates the ultimate amenability finding with the
second factor, which is primarily concerned with time.” We agree with the People’s
interpretation.
“In interpreting a statute, our primary goal ‘“is to determine the Legislature’s
intent so as to effectuate the law’s purpose.”’ [Citation.] ‘“Because the statutory
language is generally the most reliable indicator of that intent, we look first at the words
themselves, giving them their usual and ordinary meaning.”’” (People v. Mendoza
(2023) 88 Cal.App.5th 287, 294.) “‘“If the statutory language is unambiguous, then its
plain meaning controls.”’ [Citation.] We ‘avoid “interpretations that render any
language surplusage.”’” (Ibid.)
Section 707(a)(3) (as amended by Assembly Bill 2361) mandates that the juvenile
court “shall consider the criteria specified in subparagraphs (A) to (E), inclusive” in
determining whether “the minor is not amenable to rehabilitation while under the
17 jurisdiction of the juvenile court.” Thus, according to the statute’s plain language, the
court is required to consider each of the five listed criteria in determining whether the
prosecution has carried its burden of proof to transfer a juvenile to criminal court.
(§ 707(a)(3).) “Whether the minor can be rehabilitated prior to the expiration of the
juvenile court’s jurisdiction” is the second of the five listed criteria. (§ 707(a)(3)(B)(i).)
The statute does not direct the juvenile court to afford any greater weight to that criterion.
(§ 707(a)(3).) Rather, the statute expressly requires the court to consider all five criteria
in making its determination, but the statute says nothing about the relative weight to be
given to any of the criteria. (§ 707(a)(3).) The statutory language accordingly does not
support Miguel’s interpretation that the statute elevates the second criterion to be “the
single most important factor in determining whether to grant the requested transfer.”
(Italics omitted.)
Moreover, the ultimate determination of whether “the minor is not amenable to
rehabilitation while under the jurisdiction of the juvenile court” (§ 707(a)(3)) is not the
same as the second criterion, which calls for consideration of “[w]hether the minor can be
rehabilitated prior to the expiration of the juvenile court’s jurisdiction”
(§ 707(a)(3)(B)(i)). Assembly Bill 2361 did not make any amendments to the five
criteria. “‘[W]hen the Legislature amends a statute without altering portions of the
provision that have previously been judicially construed, the Legislature is presumed to
have been aware of and to have acquiesced in the previous judicial construction.’” (City
and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1915.) As
courts have explained, the focus of the second criterion is whether there is enough time to
18 rehabilitate the minor while the minor is still eligible to remain under juvenile court
jurisdiction. (J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 721; see also Kevin P. v.
Superior (2020) 57 Cal.App.5th 173, 200, fn. 13 [in “evaluating the amount of time that
rehabilitation in the juvenile system will ultimately require” for § 707(a)(3)(B)(i), the
court should consider predisposition progress made toward rehabilitation].) Under the
second criterion, the prosecution accordingly “bears the burden of producing evidence of
insufficient time to rehabilitate the minor.” (J.N., at p. 721.)
In contrast, the ultimate finding that the juvenile court must make under
section 707(a)(3) concerns a global assessment of the minor’s suitability to rehabilitation
within the juvenile court system, and not just a comparison of the time needed with the
time remaining. (§ 707(a)(3).) The prosecution bears the burden of proving by clear and
convincing evidence that the minor is “not amenable to rehabilitation while under the
jurisdiction of the juvenile court.” (§ 707(a)(3).) As explained by In re S.S. (2023) 89
Cal.App.5th 1277 (S.S.), “[t]his language resembles earlier versions of section 707,
which, from the enactment of the Juvenile Court Law in 1961 until the approval of
Proposition 57, the Public Safety and Rehabilitation Act of 2016, required juvenile courts
to analyze whether minors are ‘amenable to the care, treatment, and training program
available through the facilities of the juvenile court.’” (Id. at p. 1286.)
Section 707(a)(3)’s focus on the minor’s amenability to rehabilitation under the juvenile
court’s jurisdiction thus requires the court to consider not only time but also other reasons
why the minor might or might not be responsive to the available rehabilitative services.
19 Time is only one of the five statutory criteria that the court must consider in making the
determination. (§ 703(a)(3)(B)(i).)
We accordingly conclude that the express terms of section 707(a)(3) require the
court to evaluate five criteria in determining whether “the minor is not amenable to
rehabilitation while under the jurisdiction of the juvenile court” and that the statute does
not require that any of those criteria be afforded any greater weight than any other.
(§ 707(a)(3).) We further conclude that the second criterion–“[w]hether the minor can be
rehabilitated prior to the expiration of the juvenile court’s jurisdiction”
(§ 707(a)(3)(B)(i))—is distinct from the ultimate determination “that the minor is not
amenable to rehabilitation while under the jurisdiction of the juvenile court”
(§ 707(a)(3)).
In support of his contrary interpretation, Miguel relies on E.P. He claims that E.P.
reversed the juvenile court’s transfer order because the juvenile court’s “‘totality of the
circumstances’ approach, and its reliance on the other factors under [section 707(a)(3)],
failed to properly consider the effect of” Assembly Bill 2361’s amendments.
(Underlining omitted.) Miguel’s reliance on E.P. is misplaced. In E.P., the transfer
hearing was held before Assembly Bill 2361 took effect. (E.P., supra, 89 Cal.App.5th at
p. 411.) Because the court concluded, and the parties agreed, that Assembly Bill 2361
applied retroactively to the case because there was not yet a final judgment, E.P. reversed
for the juvenile court to hold a new transfer hearing applying the new law. (E.P., at
pp. 416-417.) E.P. explained: “Under 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
20 to determine the result, even though some or all of the other factors might point to a
different result. The prosecution is entitled to a new fitness hearing so that the court can
determine, considering all five factors, whether [the minor] is amenable to treatment.”
(Id. at p. 417.)
E.P. does not support Miguel’s interpretation of section 707. E.P.’s description of
the effect of Assembly Bill 2361 on section 707 does not imply that the amendment gives
greater weight to the second criterion, nor does E.P. suggest that the second criterion and
the ultimate determination are the same. On the contrary, E.P. clarifies that
section 707(a)(3), as amended by Assembly Bill 2361, requires the juvenile court to
consider all five of the listed criteria in making the ultimate determination about the
minor’s amenability to rehabilitation while under the juvenile court’s jurisdiction. (E.P.,
supra, 89 Cal.App.5th at p. 417.)
Because the juvenile court is not required to give greater weight to the second
criterion or to deny the transfer motion if that criterion does not weigh in favor of
transfer, we conclude that the juvenile court did not err by not according the second
criterion greater weight than the other criteria. We further conclude that the juvenile
court’s finding that Miguel was not amenable to rehabilitation while under the juvenile
court’s jurisdiction (§ 707(a)(3)) was consistent with its finding that the prosecution had
not established that the second factor (§ 707(a)(3)(B)(i)) weighed in favor of transfer.
C. Sufficiency of the Evidence
Miguel concedes that the record contains sufficient evidence to support the court’s
findings under the previous preponderance of the evidence standard of proof. But he
21 argues that the evidence is insufficient under the new clear and convincing evidence
standard of proof because (1) the juvenile court relied on Miguel’s statements in
October 2021 about being a murderer, and (2) there was new evidence of his progress
toward rehabilitation. We disagree.
Miguel argues that the court “excessive[ly]” relied on the statements Miguel made
in October 2021, “despite the continued lack of evidence of the tone and context of the
alleged comments” and “despite [purported] criticism of the relevance of those comments
by not only the defense but also this Court.” The argument lacks merit for two reasons.
First, Miguel mischaracterizes our prior opinion. We did not question the relevance of
the October 2021 statements. In fact, we expressly rejected “Miguel’s argument that the
absence of evidence as to the tone or context of the statements renders them ‘worthless as
an indication of’ Miguel’s state of mind reflecting a lack of remorse.” (In re Miguel R.,
supra, E078528.)
Second, Miguel’s argument that the juvenile court unduly emphasized the
October 2021 statements is not supported by the record, just as it was not supported by
the record in the prior appeal. (In re Miguel R., supra, E078528.) The court’s
consideration of the October 2021 statements was limited to its analysis of the second
criterion, namely, whether Miguel could “be rehabilitated prior to the expiration of the
juvenile court’s jurisdiction.” (§ 707(a)(3)(B)(i).) But the court determined that the
second criterion did not weigh in favor of transfer. Miguel’s argument that the court
unduly relied on the October 2021 statements as a basis to grant the transfer motion
therefore fails.
22 Miguel’s only other argument concerning the sufficiency of the evidence is that
the record contains evidence that Miguel did not have any recent disciplinary issues,
completed a substance abuse program, and obtained his GED, all of which tends to show
his “progress toward rehabilitation.” The argument fails because the existence of
contrary evidence does not show that the trial court’s findings were not supported by
substantial evidence. In conducting substantial evidence review, we draw all reasonable
inferences in support of the court’s findings, not against them. (Cardenas, supra, 53
Cal.App.5th at p. 119, fn. 11.) We consequently are concerned only with whether “‘“the
circumstances reasonably justify the trier of fact’s findings.”’” (People v. Kraft (2000)
23 Cal.4th 978, 1054.) When evidence reasonably justifies the trier of fact’s findings,
“‘the opinion of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the judgment.’” (People
v. Thomas (1992) 2 Cal.4th 489, 514.)
For these reasons, we conclude that Miguel has failed to demonstrate that the
juvenile court’s finding is not supported by substantial evidence.
D. Senate Bill 545
Senate Bill 545 became effective while this appeal was pending, so we asked the
parties to file supplemental briefs addressing the effect of the new legislation on this
appeal. The parties assume and we agree that the amendments are ameliorative and
accordingly apply retroactively to Miguel’s case because there is not yet a final judgment.
(See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304; S.S., supra, 89
Cal.App.5th at pp. 1288-1289 [applying Assembly Bill 2361 retroactively].)
23 With respect to the new factors that must be considered in connection with the first
criterion (i.e., the degree of criminal sophistication), Miguel acknowledges that the record
“does not disclose any indication that [he] was involved in the child welfare or foster care
system, or was a victim of violence, trafficking, or abuse[], and [he] specifically denied
being sexually abused.” (§ 707, subd. (a)(3)(A)(i)-(ii).) But Miguel argues that because
there previously “was no reason to determine or consider whether [those factors] in fact
existed in this case,” we should reverse and remand so that the parties can develop the
record accordingly and the juvenile court can reconsider the motion in light of the new
factors. The contention lacks merit.
Before Senate Bill 545, “the effect of the minor’s family and community
environment” and “childhood trauma” were among the listed factors for the court to
consider in analyzing the minor’s “degree of criminal sophistication.” (Former § 707,
subd. (a)(3)(A)(i)-(ii).) Likewise, before Senate Bill 545, “the effect of the minor’s
family and community environment and childhood trauma on the minor’s previous
delinquent behavior” were listed as relevant to the court’s analysis of “[t]he minor’s
previous delinquent history.” (Former § 707, subd. (a)(3)(C)(i)-(ii).) Any evidence of
Miguel’s involvement in the child welfare system or any history of sexual abuse, sexual
battery, or human trafficking would be relevant to his family and community
environment and childhood trauma, so such evidence would have been relevant even
before Senate Bill 545. The parties therefore had an incentive to develop and present
such evidence at Miguel’s transfer hearing.
24 Accordingly, the 2019 probation report includes sections about Miguel’s family
background, personal history, and statements from both Miguel and his mother about his
family life. No one reported that Miguel was ever involved in the child welfare or foster
care system. The report affirmatively states that Miguel was not a victim of sexual or
physical abuse. Likewise, none of the reference letters submitted on Miguel’s behalf
states that Miguel had any child welfare history, had been sexually abused, or was a
human trafficking victim. Thus, even though Miguel had an incentive before
Senate Bill 545 to introduce evidence concerning child welfare history and any history of
sexual abuse or human trafficking, the record contains none and actually contains
contrary evidence.
For all of these reasons, we conclude that it is not reasonably probable that the
juvenile court would have reached a result more favorable to Miguel if it had applied the
current version of section 707. (S.S., supra, 89 Cal.App.5th at p. 1289 [failure to apply
amendments to section 707 is reviewed for harmlessness under People v. Watson (1956)
46 Cal.2d 818, 836].)
DISPOSITION
The order transferring Miguel to criminal court is affirmed.
CERTIFIED FOR PUBLICATION MENETREZ J. We concur:
MILLER Acting P. J. FIELDS J.