NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J43120)
A juvenile court determined that petitioner J.G. was not suitable for treatment in the juvenile system and transferred his case to a court of criminal jurisdiction. J.G. challenges that ruling, arguing the juvenile court abused its discretion when analyzing the factors enumerated under Proposition 57, the Public Safety and Rehabilitation Act of 2016. Although the juvenile court's explanation for transferring J.G. to criminal court initially gave us pause, we conclude the ruling was supported by substantial evidence and was not an abuse of discretion. We will deny J.G.'s petition for a writ of mandate.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Charges and Preliminary Hearing
The prosecution initiated this action in criminal court against J.G. in September 2015. The operative second amended complaint charges J.G. and three codefendants with murder. (Pen. Code, § 187, subd. (a)). The prosecution further alleged for each defendant that the murder was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)); that a principal personally used a firearm (Pen. Code, § 12022.53, subds. (b) and (e)(1)); that a principal personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subds. (c) and (e)(1)); and that a principal personally and intentionally discharged a firearm causing great bodily injury and death (Pen. Code, § 12022.53, subds. (d) and (e)(1)). J.G. was 17 years old at the time of the charged murder. The three codefendants were also alleged to be minors at the time of the murder.
The evidence at the preliminary hearing showed that police discovered the body of the victim, a 46-year-old male, on August 14, 2015 in Vallejo near railroad tracks underneath the Sacramento Street overpass between Yolo and Illinois Streets. The victim had been shot 10 times with two different caliber bullets. The majority of gunshot wounds were to the victim's chest and abdomen area, with one of the bullets entering the victim's heart. The victim had the letters "XIV" tattooed on his upper right arm, which signified an affiliation with the Norteño criminal street gang.
A codefendant, A.G., testified he met J.G. and another codefendant, E.P., approximately two years before the murder when A.G. started hanging out with members of the Brown Brotherhood (BBH) street gang, a subset of the Sureños. J.G. and two other gang members "jumped" A.G. into the gang, meaning they punched A.G. everywhere on his body for 13 seconds. J.G., A.G., and E.P. spent much of their time at the railroad tracks drinking, smoking, and listening to "West Vallejo tunes." A.G. explained that the area of the train tracks was BBH territory, and if a rival Norteño gang member was to walk down the tracks, BBH members were expected to "jump" him or "something like that."
On August 13, 2015, J.G., E.P., and the fourth codefendant, M.C., went to A.G.'s house to hang out. The group left A.G.'s house for the railroad tracks, where they drank alcohol, smoked marijuana, and listened to music. The area near the tracks was "tagged" with the numbers 228, a reference to the BBH. J.G. was carrying a .38 caliber revolver, while M.C. was carrying a .22 caliber firearm. J.G. and M.C. took photographs of their guns.
While the group was hanging out, an older male wearing a red belt and black sweater was walking up the train tracks by himself. J.G. and M.C. approached the man, pointed their guns at him, and asked several times, " 'Do you bang?' ", which was a way of asking whether the man belonged to a gang. J.G. and M.C. then shot the man approximately 10 times, with J.G. firing first. The man did not have a weapon and did not say anything prior to being shot. The group fled the area of the train tracks and returned to A.G.'s house. J.G. started laughing and claimed, " 'I just shot a Norteno,' " and " 'I just shot a buster,' " a disrespectful reference to another person. J.G. also said the man had a Norteño tattoo.
Five days after the shooting, a police officer observed J.G. near the 200 block of Arkansas street, territory of the BBH. Upon seeing the officer, J.G. began to run and, while doing so, discarded a firearm in the front yard of a house. Police recovered the firearm, a .38 caliber Rossi revolver. J.G. was arrested for possession of a firearm. A firearms examiner analyzed the Rossi revolver and determined it was the same .38 caliber firearm used to shoot the victim five days earlier.
Jared Jaksch, a police detective with the City of Vallejo, testified as an expert in criminal street gangs. He explained the BBH gang is a Sureños criminal street gang that claims allegiance to Southern California, as opposed to Northern California. BBH uses as a common sign the number 13, which represents the letter M, the 13th letter in the alphabet. BBH also uses the numbers 228, which corresponds to B and H being the second and eighth letters in the alphabet.
Jaksch explained that the area near the railroad tracks was BBH territory and contained an "extremely large amount" of BBH graffiti. Gang "turf" is important to gangs because it provides a location for members to conduct criminal activity and feel safe. It is important to gang members to protect their turf in order to make money, and also to avoid looking weak to rival gang members who might attempt to take over. Gang members protect their turf through violence or force, which also has the effect of earning respect from rival gangs. Gangs also use violence to create fear in the community so that citizens will be afraid to call the police and testify against gangs in court.
Jaksch believed J.G. was a member of BBH because he was identified as such by other members and had BBH tattoos on his body. Jacksch further believed that a shooting like the one alleged against J.G. would benefit BBH. Jaksch explained: "It's based on the fact that gang culture violence is not only expected, it's required. The entirety of the criminal street gang, specifically BBH, is violence, so something like that, it benefits them because if you are showing that I'm willing to use firearms and kill somebody, the community is going to be afraid. [¶] Other gang members are going to be weary [sic]. They are going to know you are not afraid to use violence against them. It's going to establish that reputation of fear that they thrive on."
Following the preliminary hearing, the criminal court held J.G. to answer on all charges.
B. Proposition 57 and the Juvenile Fitness Hearing
The prosecution initiated this action in criminal court under prior law that allowed prosecutors to " 'direct file' " a felony complaint in adult court. This procedure eliminated "the juvenile court's ability to determine at an early stage of the proceedings whether the juvenile should be treated in the juvenile court system or transferred to adult court." (J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 710, citing Welf. & Inst. Code, § 707, former subd. (d).)
In November 2016—after J.G.'s preliminary hearing—the electorate passed Proposition 57, the Public Safety and Rehabilitation Act of 2016. " 'Among other provisions, Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing by prosecutors.' " (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305.) "Certain categories of minors . . . can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor's maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated. (Welf. & Inst. Code, § 707, subd. (a)(1).)' " (Id. at pp. 305-306.)
In light of Proposition 57, J.G.'s case was transferred to juvenile court. The prosecution then filed a motion in the juvenile court to transfer J.G.'s case back to criminal court. Following a lengthy hearing, which we will describe in more detail, the juvenile court granted the prosecution's motion and ordered J.G.'s transfer to criminal court. The juvenile court believed J.G.'s minimal delinquency history and the success of previous attempts to rehabilitate him weighed in favor of keeping J.G. in juvenile court. Nevertheless, the juvenile court concluded those considerations were outweighed by J.G.'s age, criminal sophistication, the unlikelihood that he could be rehabilitated prior to the termination of juvenile court jurisdiction, and the gravity of the alleged murder. On balance, the juvenile court concluded that J.G. should be tried in criminal court.
J.G. then filed this petition for a writ of mandate, requesting that we direct the juvenile court to vacate its transfer order and issue a new order finding J.G. fit to be treated in juvenile court. We requested preliminary briefing from the parties, then issued an order to show cause.
We briefly address the Attorney General's argument that J.G. did not timely file this writ petition. "Any petition for review of a judge's order to transfer jurisdiction of the child to the criminal court . . . must be filed no later than 20 days after the child's first arraignment on an accusatory pleading based on the allegations that led to the transfer of jurisdiction order." (Cal. Rules of Court, rule 5.770(g).) The Attorney General states that under this rule, J.G. was required to file this writ petition within 20 days after June 11, 2018, the first day he appeared in criminal court after the juvenile court ordered a transfer. The Attorney General contends that J.G.'s deadline to file a petition with us under the 20-day rule was June 29. The Attorney General is incorrect. The 20th day after June 11 was July 1, a Sunday. J.G. had until the following day, Monday July 2, to file his petition. (Code Civ. Proc., §§ 12, 12a, 12b.) J.G. filed his petition on July 2. His petition is timely.
A. Standard of Review
Proposition 57 instructs juvenile courts to consider five factors when deciding whether a minor is suitable for treatment in juvenile court: the minor's degree of criminal sophistication, whether the minor can be rehabilitated before the juvenile court loses jurisdiction over the minor, the minor's prior history of delinquency, the success of prior attempts by the juvenile court to rehabilitate the minor, and the circumstances and gravity of the charged offense. (§ 707, subd. (a)(2)(A)(i)-(E)(i).) The prosecution bears the burden of establishing by a preponderance of evidence that a minor is not suitable for treatment under the juvenile court system. (Cal. Rules of Court, rule 5.770(a).)
"We review the juvenile court's finding the minor was unsuitable for treatment in the juvenile court for error under an abuse of discretion standard. [Citation.] 'There must be substantial evidence adduced at the hearing that the minor is not a fit and proper subject for treatment as a juvenile before the court may certify him to the superior court for prosecution. [Citations.]' [Citation.]." (J.N. v. Superior Court, supra, 23 Cal.App.5th at p. 714.) "In reviewing the juvenile court's decision, '[t]he . . . 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.' [Citation.]" (Ibid.)
The juvenile court believed three of the Proposition 57 factors—criminal sophistication, J.G.'s ability to be rehabilitated, and the gravity of the charged crime—outweighed the other considerations and justified transferring J.G.'s case to criminal court. J.G. contends the juvenile court abused its discretion when analyzing these three factors. For the reasons explained, we disagree.
B. Criminal Sophistication
Proposition 57 requires a juvenile court to consider the "degree of criminal sophistication exhibited by the minor" in deciding whether to transfer a case to criminal court. (§ 707, subd. (a)(2)(A)(i).) When evaluating criminal sophistication, "the juvenile court may give weight to any relevant factor, including, but not limited to, the minor's age, maturity, intellectual capacity, and physical, mental, and emotional health at the time of the alleged offense, the minor's impetuosity or failure to appreciate risks and consequences of criminal behavior, the effect of familial, adult, or peer pressure on the minor's actions, and the effect of the minor's family and community environment and childhood trauma on the minor's criminal sophistication." (§ 707, subd. (a)(2)(A)(ii).)
J.G.'s mother testified at the fitness hearing and described the environment in which J.G. was raised. She explained that when J.G. was only three months old, the family became homeless because J.G.'s father abused alcohol and drugs, which prevented the family from affording rent. The family lived in and out of homeless shelters. J.G.'s father also physically abused J.G.'s mother, which forced the mother to live in several shelters for domestic violence victims, though she returned to the father when he found out where she had been staying. The father also physically abused J.G. as he was growing up. The father's abuse of the mother and J.G. continued until J.G. was 15 years old when, on one occasion, J.G. confronted his father after he struck his mother in the head. J.G. told his father he would never allow the father to hit his mother again and that he would protect her even if it meant going to jail.
J.G.'s mother explained that she and J.G. moved to Vallejo in 2013. Three or four months after the move, J.G. was shot and critically injured. J.G. underwent several operations, spent almost two months in the hospital, and wore a colostomy bag for eight months. J.G.'s mother noticed a big change in J.G. after the shooting; he was always afraid, had trouble sleeping, and suffered from anxiety.
J.G. also presented expert testimony from Dr. Andrew Pojman, a clinical psychologist. Dr. Pojman explained that J.G. has "average ability" intellectually, but suffers from Post-traumatic Stress Disorder and Attention Deficit Hyperactivity Disorder (ADHD). Dr. Pojman described J.G. as a "traumatized kid with a lot of anxiety" who possesses thinking that is "disorganized, illogical." Dr. Pojman acknowledged the charged crime was an "awful, violent offense," but did not believe the crime showed criminal sophistication. He explained: "I do not see [J.G.] as sophisticated. He is pretty immature, he is a traumatized late adolescence whose life has been colored by this violence and so I don't think he is particularly sophisticated when it came to that. [¶] It was bad judgment but I don't think—sophistication is kind of a funny word I think too because it also implies planning and thoughtfulness and a level of understanding. That I don't think he possesses or has. So I don't think the crime itself was sophisticated."
The juvenile court concluded the evidence showed J.G. exhibited a level of criminal sophistication that weighed in favor of transferring him to criminal court. In explaining its reasoning, the court commented that "[s]ophistication in a criminal offense is akin to what Justice Potter Stewart described about pornography. You know it when you see it." The court then elaborated on its reasoning as follows: "At the time of the instant offense, the former minor was mature enough to know from his own experience that firearms can kill and seriously injure their victims. Rather than withdraw from criminal activity after his own near death experience, he chose to become an entrenched gang member, proudly wearing gang tattoos against his mother's wishes. He chose to arm himself before the instant offense and he carried that weapon while simply hanging out with other members of his gang in a gang turf area. [¶] Upon seeing a person who he perceived as a rival gang member, he shot that person without any further provocation, without any threat, in a cold and calculated and deliberate manner. [¶] Familial violence, personal trauma, ADHD, and post traumatic symptomology may have contributed to the former minor's judgment but it did not lessen his activities and the wrongfulness of his conduct, the consequences of his action and the choice to defend his gang turf with taking [the victim's] life."
See Jacobellis v. Ohio (1964) 378 U.S. 184, 197 (conc. opn. of Stewart, J.) ["I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of hardcore pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."].)
J.G. argues the juvenile court abused its discretion in concluding he acted with criminal sophistication. J.G. claims the prosecution failed to present sufficient evidence of sophistication, which was brought to light when the juvenile court resorted to a "you know it when you see it" approach to analyzing J.G.'s sophistication. If anything, J.G. argues the evidence "affirmatively proved that there was no sophistication in the commission of the crime." J.G. claims the evidence shows that the crime was "random and spontaneous" rather than sophisticated. J.G. asserts his lack of sophistication is further shown by his sloppy attempts after the killing to dispose of the murder weapon and evade police. J.G. adds that the testimony of his mother and Dr. Pojman, the expert psychologist, reveals his crime was not sophisticated, but was instead the product of his difficult upbringing as a child and lack of mental development.
If the evidence only showed a spontaneous killing and failed attempt to flee police, plus evidence of J.G.'s difficult upbringing and his lack of mental development, we might agree there was no indicia of sophistication. But, as the juvenile court recognized, the gang aspect of the killing added an element of criminal sophistication that made it more than a random and nonsensical act of violence, as did J.G.'s decision to arm himself with a revolver.
The evidence showed the victim's murder occurred on BBH territory, a sanctuary for the gang to engage in its activities without threats from rivals. The prosecution's gang expert explained that gangs use violence to protect their territory, earn respect from rival gangs, prevent the rivals from claiming the territory as their own, and create fear within the entire community. Upon seeing the victim walking toward their territory, J.G. and a codefendant approached him, pointed their guns at him, and asked if he "bang[ed]." Apparently believing the victim belonged to a different gang, J.G. and the codefendant shot him 10 times. From this evidence, the juvenile court could reasonably infer that J.G. was not acting spontaneously when he shot the victim. He acted with the broader objective to protect BBH's activities and send a message to other gangs and the community about BBH's presence.
The juvenile court could also reasonably conclude that J.G.'s leadership role in the gang added an additional level of sophistication to the murder. The evidence showed that J.G. had been entrenched with BBH for several years before the murder. J.G. was also in a position to recruit others to join the gang and "jump" them in. J.G. also took the lead in the murder by being one of the gang members to approach the victim as he entered BBH's territory, then by being the first to shoot the victim.
J.G. downplays the gang connection of the murder by claiming "the type of violence we see in this case is natural to the gang," and that "[w]hat happened in this case is what gangs do." We disagree with J.G.'s suggestion that a crime necessarily lacks sophistication because it is common among gangs. Regardless of whether this type of murder is common, the evidence in this case showed J.G. took a lead in the murder to protect his gang's territory and strengthen its reputation in the community. The evidence shows a level of criminal sophistication beyond mere randomness and spontaneity.
There remains the testimony of J.G.'s mother and Dr. Pojman, the clinical psychologist, which J.G. argues shows his conduct did not reflect sophistication, but was instead the product of his troubled upbringing and stunted mental developmental. The testimony of J.G.'s mother and Dr. Pojman was compelling. It showed that from the time J.G. was born, he was exposed to both violence and transience within his family. That violence followed J.G. outside of his family, as well, when J.G. was shot and critically wounded shortly after his family relocated to Vallejo. Dr. Pojman believed J.G. was a "traumatized kid" with impaired judgment who suffers from Post-traumatic Stress Disorder and ADHD. The juvenile court was well aware of this evidence, and even concluded it may have contributed to J.G.'s lack of judgment. But the court also considered this evidence as part of the totality of the evidence bearing on J.G.'s criminal sophistication. Then, exercising its discretion to give weight to "any relevant factor," (§ 707, subd. (a)(2)(A)(ii)), the court concluded that J.G.'s age and the gang aspect of the murder reflected criminal sophistication. This was a proper exercise of the court's discretion.
The gang aspect of the murder distinguishes this case from People v. Javier A. (1985) 38 Cal.3d 811, a case relied on by J.G. In Javier A., our Supreme Court concluded the trial court abused its discretion in rejecting the Youth Authority's recommendation that a defendant convicted of second degree murder be placed with the Youth Authority for treatment. (Id. at pp. 819-820.) The defendant's crime involved strangling a female victim to death after the victim threatened to kill her boyfriend (a friend of the defendant's), then scratched the defendant during an ensuing argument. (Id. at p. 814.) In reaching its conclusion, the court observed the defendant was "not a sophisticated criminal," and that his crime reflected an "impulsive act of a highly intoxicated 17-year-old." (Id. at p. 819.) The evidence in this case shows that J.G.'s actions reflected more than impulsivity. As we have explained, the crime evinced J.G.'s attempt to strengthen the standing of his gang while sending a message to rival gangs and the community.
This case is also distinguishable from J.N. v. Superior Court, supra, 23 Cal.App.5th 706, another case relied on by J.G. The court in J.N. determined that substantial evidence supported the juvenile court's conclusion that a charged murder was not " 'particularly sophisticated.' " (Id. at p. 713.) J.N., like J.G. here, grew up surrounded by violence and dysfunction within his family. And also like J.G. in this case, J.N. was the victim of gun violence, which changed his behavior for the worse. (Id. at pp. 717-719.) However, the circumstances of the murder J.N. was charged with are far different from the murder in this case. The murder in J.N. occurred when J.N. and two other minors were "tagging" a rival gang's territory. (Id. at p. 711.) An adult rival gang member approached J.N. and his group. One of the minors in J.N.'s group "pulled out a gun to scare the man." (Id. at p. 712.) "Undeterred, the man grabbed the gun in [the minor's] hand and a struggle ensued. Shots were fired as they wrestled over the gun. J.N. and the other minor stood frozen nearby." (Ibid., fn. omitted.) In this case, J.G. was not a passive bystander taken by surprise. Quite the opposite, J.G. instigated the shooting by approaching the victim, an apparent rival gang member who encroached on BBH territory. J.G. then questioned the victim about his gang affiliation, was the first to shoot the victim, and then bragged about the shooting afterward.
It is apparent from our review of the record that the juvenile court considered the totality of the evidence in front of it, and properly exercised its discretion in concluding J.G. acted with a level of criminal sophistication that justified his prosecution in criminal court.
C. Rehabilitation Prior to the Expiration of the Juvenile Court's Jurisdiction
Under Proposition 57, a juvenile court must consider "[w]hether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction." (§ 707, subd. (a)(2)(B)(i).) When evaluating this factor, "the juvenile court may give weight to any relevant factor, including, but not limited to, the minor's potential to grow and mature." (§ 707, subd. (a)(2)(B)(ii).)
A probation officer prepared a report in February 2017 explaining that the juvenile court's jurisdiction would expire when J.G. turned 25 (J.G. was 19 years old at the time of the report). The report stated "[s]ix years appears to be a short amount of time to integrate the required treatment and rehabilitative services for [J.G.] in efforts to prepare him for release into the community," given that minors typically receive a seven-year commitment for murder. The report then explained the various types of treatment J.G. would receive from the Department of Juvenile Justice (DJJ), including educational services, aggression interruption training, and trauma focused cognitive behavioral therapy.
J.G.'s attorney cross-examined the probation officer at the fitness hearing. The probation officer acknowledged her report was the first one she prepared for a Proposition 57 transfer case. When asked how she determines a minor's ability to rehabilitate, the probation officer focused on the nature of the charged crime, explaining that the rehabilitative needs of a person who has committed a murder are far greater than for other individuals.
J.G. also elicited testimony from Dr. Pojman regarding whether J.G. could be rehabilitated. Dr. Pojman said four and a half to five years in the juvenile court system "could be" enough time for J.G. to rehabilitate. Dr. Pojman based his opinion on J.G.'s positive response to treatment in the past, the benefit J.G. could receive from medication, and the "plasticity of the adolescent brain." But Dr. Pojman could not say with certainty how soon J.G. could be rehabilitated; two years might be enough, but four years might not be enough. Dr. Pojman did express concern about J.G. being placed in an adult prison population, since he would be surrounded by "rougher, more aggressive, antisocial adults," which would "solidify his personality in ways that would not be really helpful either to him or ultimately to the community or to society."
The juvenile court concluded that J.G.'s capability of rehabilitating (or lack thereof) prior to the expiration of its jurisdiction weighed in favor of transferring his case to criminal court. The court explained that J.G. was 17 years old at the time of the charged crime, and 20 years old at the time of the fitness hearing, which would leave the juvenile court with only three years of jurisdiction over J.G., not five years as the parties suggested. The court compared its three years of jurisdiction with the fact that a juvenile adjudication for murder would normally result in a seven-year commitment to the DJJ. The court was also concerned that J.G. possessed several characteristics that diminished the likelihood of rehabilitation, including entrenchment in gang culture, anger management issues, and his ADHD diagnosis. The court did not believe Dr. Pojman's testimony was definitive enough to show that J.G. could overcome these concerns.
J.G. attacks that trial court's analysis on several grounds. First, J.G. argues the trial court improperly placed the burden of showing J.G.'s potential for rehabilitation on J.G., when it should have placed the burden on the prosecution. (See Cal. Rules of Court, rule 5.770(a) [prosecution bears the burden of establishing by preponderance of evidence that minor is not suitable for treatment under the juvenile court system].) The juvenile court concluded its discussion of rehabilitation by stating that its doubts about J.G.'s ability to rehabilitate were "not answered by [Dr. Pojman's] testimony and therefore the People have met their burden of proof as to that criteria." This remark by the juvenile court, when read in isolation, might support J.G.'s argument that the court placed the burden of proof on J.G. But a full review of the court's decision reveals it properly placed the burden of proof on the prosecution. Before remarking about Dr. Pojman's testimony, the court had described evidence regarding J.G.'s gang entrenchment, ADHD, and severe anger management issues. Believing these problems would be impediments to J.G.'s rehabilitation, the court then looked to Dr. Pojman's testimony to determine whether J.G. could overcome them. The court found Dr. Pojman's testimony unpersuasive, and concluded the prosecution had met its burden of proof of showing J.G.'s inability to rehabilitate. Thus, contrary to J.G.'s argument, the court did not look to Dr. Pojman's testimony in the first instance to determine if J.G. could be rehabilitated.
J.G. also criticizes the probation officer's report and testimony, claiming it could not constitute substantial evidence because the probation officer failed to describe the premises of her opinion and, if anything, based her opinion on generalizations about minors, not on J.G.'s individual circumstances. J.G. compares the probation officer's testimony to the evidence provided by the probation officer in J.N. v. Superior Court, supra, 23 Cal.App.5th 706. There, a probation officer prepared a report describing the types of treatment J.N. would potentially receive in the DJJ. (Id. at p. 721.) "Then, without any analysis, the report concludes: 'Therefore, under this criterion, the minor appears to be unsuitable to be dealt with under the Juvenile Court law.' " (Ibid.) In concluding that the prosecution failed to establish J.N. was unsuitable for treatment in juvenile court, the court concluded the probation officer's opinion "was not substantial evidence because the opinion lacked support by substantial evidence." (Id. at p. 722.) "There was no evidence as to the efforts necessary to rehabilitate J.N. and no evidence as to why available programs were unlikely to result in rehabilitation in the time allotted. This lack of evidence rendered any opinion based on the report without evidentiary value." (Ibid.)
Here, even if we agreed with J.G. that the probation officer's opinion contained the same deficiencies as the officer's opinion in J.N., we would not find an abuse of discretion by the juvenile court. This is because there is no indication the juvenile court relied on the probation officer's opinion. Although the juvenile court described the programming the probation officer said J.G. would receive if committed to the DJJ, the court then formed its own opinion about J.G.'s ability to rehabilitate based on other evidence. Any deficiencies with the probation officer's opinion were harmless.
J.G. claims the juvenile court failed to consider the significance of section 1800. Section 1800 allows a court to extend a minor's commitment at the expiration of the juvenile court's jurisdiction if discharge of the minor "would be physically dangerous to the public because of the person's mental or physical deficiency, disorder, or abnormality that causes the person to have serious difficulty controlling his or her dangerous behavior." (§ 1800, subd. (a).) We do not believe section 1800 should be invoked several years before the juvenile court's jurisdiction expires to indefinitely extend the time that the DJJ can provide services to a minor. Such an interpretation would effectively write out the requirement in section 707 that a court determine whether a minor can be rehabilitated "prior to the expiration of the juvenile court's jurisdiction." (§ 707, subd. (a)(2)(B)(i).)
People v. Carl B. (1979) 24 Cal.3d 212, a case cited by J.G., does not suggest a different conclusion. In that case, the Supreme Court held a trial court's decision to reject the Youth Authority's recommendation for a juvenile commitment lacked substantial evidence. (Id. at p. 220.) In so holding, the court explained that "the sentencing court's understandable desire to impose a substantial period of confinement for society's protection could have been amply fulfilled by a [Youth Authority] commitment." (Id. at p. 219.) The court observed the Youth Authority could confine the defendant for eight years until its jurisdiction expired, which was approximately the same length as a likely prison sentence. (Ibid.) The court also observed that if the defendant remained dangerous to the public, the Youth Authority could seek to extend the commitment under section 1800. (Carl B., at p. 219.) The court never suggested that section 1800 should be applied to extend a juvenile commitment several years before juvenile jurisdiction terminates.
In his reply brief, J.G. asks us to consider a change in the law concerning the length of a juvenile court's jurisdiction over a minor. At the time of J.G.'s fitness hearing, section 1769 provided that a minor committed by the juvenile court to the DJJ who is found to be a person described in section 602 by reason of committing murder "shall be discharged upon the expiration of a two-year period of control, or when he or she attains 23 years of age, whichever occurs later." (Former § 1769, subd. (c), italics added.) An amendment to section 1769 that became effective after the fitness hearing essentially provides that a minor adjudicated of murder "shall be discharged upon the expiration of a two-year period of control, or when the person attains 25 years of age, whichever occurs later." (§ 1769, subd. (d)(2), added by Stats. 2018, ch. 36, § 36, italics added.) As a result of the new law, J.G. notes that the "juvenile system has two more years in which to rehabilitate [J.G.] than was contemplated by the juvenile judge." Relying on the proposition that "[o]ne's entitlement to a writ of mandate is largely controlled by equitable principles" (Curtin v. Department of Motor Vehicles (1981) 123 Cal.App.3d 481, 485, italics omitted), J.G. believes it is "just for this court to consider the impact the new age limits will have on this case."
The amended statute states in full: "A person who at the time of adjudication of a crime or crimes would, in criminal court, have faced an aggregate sentence of seven years or more, shall be discharged upon the expiration of a two-year period of control, or when the person attains 25 years of age, whichever occurs later, unless an order for further detention has been made by the committing court pursuant to Article 6 (commencing with Section 1800) of Chapter 1 of Division 2.5." (§ 1769, subd. (d)(2).) Even excluding enhancements, the murder J.G. is charged with carries a minimum sentence of 15 years to life. (Pen. Code, §§ 187, subd. (a), 189, 190, subd. (a).)
We accept J.G.'s invitation to consider the statutory change and conclude it would not have changed the juvenile court's decision to transfer J.G. to criminal court. The juvenile court provided no indication that J.G.'s likelihood of rehabilitation would increase if he spent two more years in the juvenile system. To the contrary, the juvenile court appeared concerned that even a commitment to the DJJ would not be able to successfully address J.G.'s complex ADHD, "a life-long condition", his entrenched gang behavior, his commitment to a criminal lifestyle, and his severe anger issues. The juvenile court noted that the crime of murder normally carries a seven-year commitment at the DJJ, and the minor's release from the facility at an earlier time would not likely meet the rehabilitative goals of the juvenile justice system. The juvenile court noted that "once released[,] he is released for all purposes without any effective community supervision," implying that any term of imprisonment at the DJJ would fall short of what would be needed to ensure J.G. was fully rehabilitated. The juvenile court also gave great weight to the gravity of the murder and the sophistication with which it was committed. We find it highly unlikely the juvenile court would conclude that two more years in the juvenile system would outweigh these other considerations.
D. Circumstances and Gravity of the Alleged Offense
Proposition 57 requires a juvenile court to consider the "circumstances and gravity of the offense alleged in the petition to have been committed by the minor." (§ 707, subd. (a)(2)(E)(i).) When evaluating the circumstances and gravity of the offense, "the juvenile court may give weight to any relevant factor, including, but not limited to, the actual behavior of the person, the mental state of the person, the person's degree of involvement in the crime, the level of harm actually caused by the person, and the person's mental and emotional development." (§ 707, subd. (a)(2)(E)(ii).)
The juvenile court believed the circumstances and gravity of J.G.'s offense weighed in favor of transfer. The court noted that the murder was gang-related, and further believed the murder was particularly callous, explaining that J.G. "shot [the victim] repeatedly in a cold and calculated manner and then fled the area without any justification, provocation, egging, encouragement, familial pressure or any of the other factors that the Court is allowed to consider." The court also observed that although J.G. had been consuming alcohol, "there is no evidence . . . that this is a significant impairment factor."
J.G. "partially" concedes he has been charged with a "very serious offense." He argues, however, that the seriousness of the crime cannot support his transfer to criminal court because the juvenile court focused exclusively on the crime without considering the totality of the circumstances, including J.G.'s mental and emotional development.
J.G.'s argument is contradicted by the record. As we explained, the juvenile court considered the totality of the evidence presented at the preliminary hearing and fitness hearing, including evidence about J.G.'s delinquent history, plus testimony from J.G.'s mother and an expert psychologist. The juvenile court even concluded this evidence mitigated J.G.'s involvement to some degree. But, having carefully weighed all of the evidence, the court concluded that J.G.'s age, the seriousness and sophistication of the charged crime, and the difficulty J.G. may have controlling his anger and disassociating from gangs, tipped the balance in favor of transferring J.G. to criminal court. The juvenile court properly exercised its discretion.
The petition for writ of mandate is denied.
Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------