Opinion
H045413
08-16-2018
A.G., Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. JV40591F, C1505898)
Minor A.G. filed a petition for writ of mandate to challenge respondent court's order granting the People's motion to transfer him from juvenile court to a court of criminal jurisdiction. (See Welf. & Inst. Code, § 707, subd. (a)(1).) We determine that the court based its decision on several findings of fact that lacked sufficient evidentiary support in the record. We will therefore issue a peremptory writ commanding respondent court to vacate the challenged order and conduct further hearing on the motion to transfer.
We will hereafter refer to the court of criminal jurisdiction as "adult criminal court" to distinguish it from juvenile court.
All further unspecified statutory references are to the Welfare and Institutions Code.
I. INTRODUCTION
A.G. was 14 years old when he participated in a three-day crime spree with four other minors in March 2015. As permitted by the versions of sections 602 and 707 that were then in effect, the People charged him in adult criminal court with one count of murder (Pen. Code, § 187) with gang and firearm allegations (Pen. Code, §§ 186.22, subd. (b)(5), 12022.53, subds. (b)-(e)(1)); three counts of attempted murder (Pen. Code, §§ 664, 187), each with gang and firearm allegations (Pen. Code, §§ 186.22, subd. (b)(5), 12022.53, subds. (b)-(e)(1)); one count of attempted robbery (Pen. Code, §§ 664, 211, 212.5, subd. (c)) with gang and firearm allegations (Pen. Code, §§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b)-(e)(1)); one count of participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)); and one count of felony driving with disregard for the safety of persons or property while fleeing from an officer (Veh. Code, §§ 2800.2, subd. (a), 2800.1) with a gang allegation (Pen. Code, § 186.22, subd. (b)(1)(A)).
In November 2016, the Public Safety and Rehabilitation Act of 2016 (Proposition 57) was passed and enacted. One of the stated purposes of Proposition 57 was to emphasize rehabilitation, especially for minors. (See Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 2, p. 141, approved Nov. 8, 2016, eff. Nov. 9, 2016; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 309 (Lara).) Among the statutory changes made by Proposition 57 were amendments to sections 602 and 707, which now provide that any allegation of criminal conduct against a person who was under age 18 at the time of the alleged offense must be filed in juvenile court in the first instance. (See §§ 602, 707, subds. (a)-(b).) There is no longer a presumption that a minor who was 14 or older when he or she allegedly committed certain offenses, including murder, is unfit for juvenile court. (See former and current §§ 602, 707.)
After Proposition 57 was enacted, the People stipulated that some of the ongoing cases it had filed in adult criminal court should be in juvenile court instead. In November 2016, A.G.'s case, which was still pending in adult criminal court, was certified for transfer to juvenile court. (See § 604.) In December 2016, the People filed a section 602 petition that contained the same charges as the criminal complaint.
It was not until February 2018 that the California Supreme Court expressly held that this part of Proposition 57 "applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, supra, 4 Cal.5th at p. 304.)
If the People want to try an accused minor as an adult, they must file a motion in the juvenile court requesting that the court transfer the minor to adult criminal court. (See § 707, subds. (a)-(b); Cal. Rules of Court, rule 5.766(a).) The People did so here.
All further rule references are to the California Rules of Court.
A juvenile court decides a motion to transfer an accused minor to adult criminal court only "after receiving a probation report and after conducting a full hearing considering the minor's prior history, the circumstances of the offense, and several other factors relating to his or her youth and immaturity. (§ 707, subd. (a).)" (Lara, supra, 4 Cal.5th at p. 309; see also rule 5.768.) The burden of proof at a transfer hearing is on the People, who must show by a preponderance of the evidence that the minor should be transferred to adult criminal court. (See rule 5.770(a).)
After reviewing briefing and evidence submitted by the parties, as well as a probation officer's report and testimony elicited at a contested hearing, the juvenile court issued a written order granting the People's motion to transfer A.G. to adult criminal court. (See § 707(a)(2).) A.G. was 17 years old when the order was filed in December 2017. He filed the current petition to challenge the transfer order.
A.G. argues, among other things, that the juvenile court had "premised its decision on . . . factual errors" and "failed to properly assess [his] role in the charged crimes." Quoting statements from A.G.'s brief and using language from section 707, this court asked the People to provide a preliminary opposition brief addressing "the significance and impact, if any, of each of the 'factual inaccuracies' or 'misunderstanding[s] of the facts' described in Sections II.B.l and II.B.5 of the petition, as well the adequacy of respondent court's consideration of: (1) the degree of criminal sophistication exhibited by minor A.G. personally; and (2) the actual behavior of minor A.G., the mental state of minor A.G., the degree of minor A.G.'s involvement in the crime, the level of harm actually caused by minor A.G., and minor A.G.'s mental and emotional development."
After receiving a preliminary opposition brief from the People and a reply brief from A.G., we issued a Palma notice to advise the parties that we were considering issuing a peremptory writ of mandate in the first instance compelling respondent court to conduct further hearing on the transfer motion to ensure that its decision is based on facts that are accurately adduced and applicable to A.G. in particular. We also stayed proceedings against A.G. in adult criminal court and invited additional briefing, but the People elected to rely on the preliminary opposition brief they had already filed.
Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.
II. FACTUAL BACKGROUND
A. A.G.'s Personal History
The following facts are taken from police, probation, and expert reports that the juvenile court indicated at the transfer hearing it had read and considered.
A.G. was born in August 2000. His childhood was very unstable. His parents were addicts, and his housing was inconsistent. He was neglected, abused, and surrounded by violence both inside and outside the home. He began using drugs when he was about seven or eight years old. He often had to fend for himself and had no supervision, frequently wandering the streets until 3:00 a.m. At age seven or eight he began to help older gang members in the neighborhood, who took him under their wing. He associated with Norteño gang members but was not an official member himself. He regularly abused alcohol, street drugs, and prescription drugs at the time of the offenses.
A.G. participated in the March 2015 crime spree with fellow minors J.L., M.A., J.R., and T.R. At age 14, A.G. was between 16 and 37 months younger than the others. All of the minors identified as or associated with Norteños, and most were using drugs during the three-day crime spree. About a week and a half before the crime spree, J.L., M.A., and A.G. purchased a gun on the street. A day later they returned to the same area to buy ammunition.
On the first day of the crime spree, M.A. drove the group to a neighborhood where Sureño gang members congregate so that they could commit a drive-by shooting. The car M.A. drove had paper license plates, and he had stolen it about three weeks earlier. J.L. shot out the window and killed victim Juan Luna. The car circled back, and J.L. handed the gun to A.G., who had said he wanted to shoot. A.G. shot out the window and wounded victim Juan Zuniga. A.G. had Raiders gloves on when he held the gun. J.L., M.A., and A.G. expressed joy when they later learned that one of the "scraps" (a derogatory term for Sureños) had died.
The next day, T.R. and J.L. contacted a dealer named Lupercio P. through Facebook and arranged a time and place to buy marijuana. Nobody in the group ever intended to buy marijuana; instead, J.L. intended to rob the dealer. All five of the minors went in the stolen car to the designated location. J.L. tried to take victim Lupercio P.'s backpack, but Lupercio P. resisted. A.G. and others in the group jumped in to attack Lupercio P., and J.L. shot Lupercio P., wounding him.
On the third day, the group returned in the stolen car to the scene of the first drive-by shooting with the intent to conduct another drive-by shooting during the Sureño vigil for deceased victim Luna. Either J.L. or an uncharged friend of J.L. named Freddie shot and wounded victim Jonatan Gudino.
The car sped away but was chased by authorities from San Jose to Pleasanton. M.A. was driving. A gun was thrown from the car during the high-speed chase, as were gloves, probably by J.L. or A.G. All in the group were arrested when the car was finally stopped in Pleasanton. A.G. has been in juvenile hall since.
A.G.'s first contact with law enforcement had been about a year and a half before the crime spree, when he was cited for bringing a knife to school at age 13. He was later arrested for robbery after he and some friends asked a peer if he "banged," punched him until he fell to the ground, repeatedly kicked him, and stole his phone and shoes. He was released from juvenile hall about three weeks later and put on electronic monitoring, but he was returned to juvenile hall after a month because he cut off the monitor and tested positive for marijuana.
A.G. was then made a ward of the court and released with electronic monitoring and orders to participate in counselling, a substance abuse program, and a victim awareness program. Less than two weeks later, he removed the monitor and absconded from supervision again. He was soon arrested for burglary and returned to juvenile hall. The court ordered a psychological evaluation, which was conducted by a doctoral student who recommended that A.G. participate in a substance abuse program and receive individual psychotherapy to cope with family stress. She did not diagnose A.G. with any mental health disorders like depression, post-traumatic stress disorder (PTSD), or attention deficit/hyperactivity disorder (ADHD). She documented that A.G. tested with an IQ of 84.
Just before he turned 14, A.G. was released on probation with electronic monitoring and ordered to stay away from J.L. and other gang members. A wraparound services team was assigned to A.G. and his family around this time. A.G. was soon arrested again, having been found near stolen cars with two other probationers who were involved in gangs, but he was released to his mother the same day, and the matter was soon settled. A.G. and his mother did initially participate in wraparound services, but they stopped when his mother was hospitalized after a near-fatal DUI-related car crash. A.G. was also discharged from a substance abuse program for failing to attend.
A.G. started attending an alternative high school, but he had many unexcused absences, and he was involved in several fights there, at least one of which was gang related. He and his mother re-engaged with wraparound services. He began attending a substance abuse program, but he continued to test positive for drugs. He did not attend the mandatory victim awareness program. In December 2014, he was cited for violating curfew, as well as for auto theft and hit and run. It was at this time that Joyce Perez, the deputy probation officer who wrote the report used at A.G.'s transfer hearing, was first assigned to his case.
A.G. was re-enrolled in a mainstream high school but was often absent. He asked to stay at the alternative school so he could remain in the substance abuse program offered there, but he was instead referred to a different program. He was found wearing gang colors and associating with a gang member who was also on probation. He was also found hiding a knife, a marijuana pipe, and a large black marker near a movie rental box.
The probation officer and wraparound services agency tried but failed to coordinate a meeting with A.G.'s school. The month before the crime spree, somebody working with A.G. recommended that he receive a psychiatric evaluation and possibly some medication. The probation officer added A.G. to the waiting list for services from a therapeutic behavioral specialist and for a mentorship program. In early March, the wraparound services agency told the court that it had offered A.G. many services that he had not taken advantage of and that it was working on finding a "specialized therapist" to help [A.G.] because he "struggled to participate in many of the activities." The crime spree occurred a few days later.
For the first several months he was in juvenile hall, A.G.'s food allotment was doubled because he was so underweight. While in juvenile hall A.G. has graduated from high school, participated in several training programs, and attended therapy. He earned his way into the least restrictive part of juvenile hall. He has also been involved in fights, some of which were gang related, and he was found with a usable amount of cocaine just before the transfer hearing.
B. Opinions and Reports of A.G's Experts and Probation Officer
1. Opinions and reports of A.G's experts
A.G.'s expert Dr. Richard Shaw, a professor of child and adolescent psychiatry at Stanford University School of Medicine, conducted a psychological evaluation of A.G. After interviewing A.G. and his family and reviewing school and probation reports, Dr. Shaw also wrote a report and testified at the transfer hearing as an expert in adolescent brain development, risk factors for adolescents with childhood trauma, and the evaluation of adolescent substance abuse and mental disorders.
Dr. Shaw said that adolescents have problems with impulse control, especially when under the influence of drugs or alcohol, and are heavily influenced by their peers. He diagnosed A.G. with chronic depression, PTSD, and ADHD (which he said makes a person more likely to behave impulsively). He described many hereditary and environmental risk factors relevant to A.G., including multigenerational family distress, peer criminality, insufficient support and guidance, abuse and neglect, and chemical dependency, and said that A.G. had never been adequately assessed or treated for his educational and mental health problems. He said that early drug and alcohol use had interfered with the development of A.G.'s ability to make reasonable decisions and exercise impulse control, and moreover that it had caused a permanent drop in his IQ.
Dr. Shaw did not talk to A.G. about the crime spree, but in his report he very briefly summarized the offenses without describing A.G.'s role in them. He wrote that A.G.'s intellectual impairment, undiagnosed ADHD, significant and early substance abuse, immature adolescent brain, and intoxication at the time of the offenses militated against a finding that A.G. was criminally sophisticated and that A.G.'s "youthfulness and immaturity at the time of his offense should be considered in mitigation at the time of sentencing." He added that neglect and abuse from family, coupled with corruptive peer influences, had desensitized A.G. to violence.
Doug Ugarkovich, who worked at the California Youth Authority (now the Division of Juvenile Justice; DJJ) for 27 years, interviewed A.G. about a year and a half after his arrest. Ugarkovich reviewed relevant documents and wrote a detailed report explaining why he believed A.G. would be suitable for commitment to a DJJ facility. His report and testimony at the transfer hearing addressed A.G.'s background and his behavior while in juvenile hall, and he provided information on DJJ recidivism statistics and services DJJ offers to the minors in its custody. Ugarkovich testified that when he interviewed A.G., he found him to be more mature than he had expected.
A.G. also obtained a report (but no testimony) from Jesse De La Cruz, a former gang member with a Master of Social Work and a Doctor of Education who works with young people in the gang life. After interviewing A.G. and reviewing police reports, De La Cruz believed that A.G. "fits into the group of boys who commit crimes when they are young without really knowing what they have done until they are arrested." He wrote that A.G. felt that "associating with gang members to survive was his only option," but is still "at an age where he can be reprogrammed and taught how to live within the mainstream."
Debra Mendoza, a former juvenile probation officer who now works as a "non-attorney legal advocate and consultant," was likewise retained by A.G. to conduct interviews, review records and write a report for the transfer hearing. In her report, Mendoza described A.G.'s childhood and expressly applied the criteria for transfer to his personal circumstances. She indicated that he was intellectually and developmentally younger than others his age and noted that he was the youngest in the crime spree group. She wrote that he "had been exploited by older more criminally advanced individuals since he was a child" and "lacked the ability to extricate himself from dysfunctional or crime-producing settings" because he depended on gang members for the physical and emotional needs his family was not meeting. She stated that in the year leading up to A.G.'s arrest, "[t]he Court and Probation were given little opportunity to implement services due to bureaucratic delays or wait-lists for services," and that the level of services offered was inadequate anyway.
Mendoza summarized A.G.'s degree of involvement in the crime spree by writing that he "was a passenger in the vehicle" during the murder of Luna, the attempted murder and robbery of Lupercio P., and the attempted murder of Gudino; that he "discharged a firearm from a vehicle resulting in a non-fatal non-life threatening gun shot injury" during the attempted murder of Zuniga; and that he "was a passenger in the vehicle . . . [and] threw knives out of the vehicle as it was being pursued by police" during the high speed chase. She did not mention A.G.'s having personally participated in the attack on Lupercio P.
2. Opinions and reports of A.G's probation officer
Unlike all of A.G.'s experts, who believed A.G. should remain under juvenile court jurisdiction, Probation Officer Perez believed that A.G. should be tried as an adult. Most of Officer Perez's report described A.G.'s history of contacts with law enforcement and probation and the contents of police reports of the current offenses. The last few pages contained Officer Perez's analysis of the statutory criteria relevant to determining whether A.G. should be tried in adult criminal court, and this analysis focused largely on the nature of the offenses and the harm caused. (See § 707, subd. (a)(2).)
Officer Perez had been assigned as A.G.'s probation officer three months before the crime spree. She visited his home during that time but could not answer questions about his pre-arrest living situation when testifying. She saw him only "periodically" between the time of his arrest in March 2015 and the time the section 602 petition was filed in December 2016 because probation "didn't want to interfere with [the] adult case."
Officer Perez reported that during the months A.G. received wraparound services he "had minimal engagement in the process" but that he "began attending meetings more regularly and had started to address his poor school attendance and communication issues within the family at the time of his arrest." She added, "A gang life style may have filled the void for the minor's feelings of anger and abandonment. But, it is not known why the minor chose mainly associates and befriends Norte[ñ]o criminal street gang members or associates."
In both her report and her testimony at the transfer hearing, Officer Perez described the offenses committed during the crime spree without distinguishing A.G.'s personal acts from those of the other minors. For instance, when discussing the circumstances and gravity of the offenses A.G. is accused of committing, she wrote, "Stealing a vehicle, buying a gun, returning to buy ammunition for the gun, going to a known Sure[ñ]o neighborhood to shoot Sure[ñ]os, killing the first victim and injuring the second victim and continuing to rob, assault and shoot another victim, and then returning to the first crime scene and shooting another victim during a candlelight vigil being held for the first victim appears to indicate the crimes were willful, deliberate and premeditated."
Officer Perez's narrative described what occurred. She acknowledged when testifying that she repeatedly said things like "they stole a car," "they shot at the vigil," "they shot Mr. Lupercio [P.]," and "they drove recklessly," even though she understood that her analysis was supposed to be "limited to [A.G.] himself." When asked by A.G.'s attorney to confirm that A.G. had not stolen the car, Officer Perez replied, "I don't know that" before agreeing that an "entire page [of her report] is details about [M.A.] and his theft of that car." Officer Perez spent time in her report discussing how the death of Luna impacted Luna's family and the community. The facts indicate that it was J.L., not A.G. who shot Luna.
Officer Perez believed that A.G. showed criminal sophistication and should be tried in adult criminal court because he was in a gang, had been accused of serious offenses that involved deliberation and premeditation, and "appeared to understand the difference between right and wrong and knew the actions he was involved in were . . . wrong and against the law." Regarding A.G.'s gang involvement in particular, she testified that "he was sophisticated in that he knew the colors to wear with gangs, he knew where rival gang members associate, he knows what signs to throw for gang related behavior." She also thought he was criminally sophisticated because he knew where to buy drugs and how to use them. She wrote in her report that A.G. was wearing latex gloves when he exited the car after the high-speed chase. When testifying, she acknowledged that this was incorrect, and the court struck the phrase "wearing latex gloves" from her report.
When she addressed A.G.'s criminal sophistication in her report, Officer Perez mentioned that A.G. "chose to remain silent" when questioned by police. When testifying, she said this was a sign of maturity, not criminal sophistication, because "it is somewhat mature to remain silent for a minor that's 14 years old to know that law," even as she acknowledged that police would have given A.G. a Miranda warning. She testified that A.G. seemed mature when she spoke to him. She also testified that the mental health specialist in juvenile hall had just told her that he would not diagnose A.G. with depression or ADHD.
Miranda v. Arizona (1966) 384 U.S. 436.
Officer Perez testified that she did not consider A.G.'s mental and emotional development or juvenile brain development in general when forming her opinion, and the only transfer criteria she could remember were the minor's age and degree of criminal sophistication. She testified that when writing her report she did not consider A.G.'s mental state at the time of the crime spree because "what [she] thought was relevant is what he's been diagnosed or what he's been feeling in the past two and a half years in juvenile hall." She said that she would recommend that A.G. be tried as an adult because "[a] life was lost, numerous lives were affected and numerous victims as a result of his actions." She believed A.G. was a leader, not a follower, because he was an "active participant" in the crime spree.
C. Potential Length of DJJ Commitment
The possibilities for a juvenile disposition for A.G. were discussed by both Officer Perez and A.G.'s expert Ugarkovich. Both explained that if A.G. were to remain under the jurisdiction of the juvenile court, based on the nature of his offenses, the only placement option for him would be at a DJJ facility, where he could be kept until age 23. Since the date of the hearing, however, the law has changed. A.G. could now be kept at a DJJ facility—and the juvenile court could still retain jurisdiction—until age 25. (See §§ 1769, subd. (d)(2), 607, subds. (b), (g)(2).)
Ugarkovich explained that there is otherwise no fixed term for a DJJ commitment. Instead, the DJJ categorizes a minor based on his most recent offense. (See § 733, subd. (c).) This category determines a minor's "projected Board date," or the date at which he will go before the Juvenile Parole Board for a hearing to determine if he is ready to be discharged into the community. The most recent serious offense A.G. is accused of committing is the attempted murder that occurred on the last day of the crime spree. This is a Category 2 offense, which comes with a projected Board date of four years. (Cal. Code Regs., tit. 15, § 4952.) The murder that occurred on the first day of the crime spree is a Category 1 offense, which comes with a projected Board date of seven years. (Cal. Code Regs., tit. 15, § 4951.)
Ugarkovich wrote that in his experience, in cases like A.G.'s "the court will often times dismiss all the charges that occurred after the most serious offense in the 'interest of justice' so that the most serious sustained offense becomes the most recent offense and the youth will receive the lengthier Projected Board Date." He added that the average stay for a minor committed to the DJJ for first degree murder is six years, which is less than the projected Board date of seven years. There are no statistics for the average stay for those committed for attempted murder, but based on the average stays for other Category 2 offenses, Ugarkovich estimated about four years, which is similar to the projected Board date for a Category 2 offense.
Officer Perez wrote that the projected Board date is "the amount of time [in which] DJJ believes a minor can be rehabilitated." She testified that "if [DJJ] believes a murder needs at least seven years for rehabilitation," she "believe[s] at least a minimum of seven years should be given."
Ugarkovich wrote that the projected Board date is not "the minimum amount of time youth must serve before they can be considered for discharge from DJJ," because the deciding factor is "the amount of progress the youth has made toward their treatment goals within their treatment plan," not how long they have been at the facility. He emphasized that a DJJ committee can be discharged before, on, or after the projected Board date, depending on how much progress he or she has made.
Ugarkovich also testified that probation officers frequently confuse the projected Board date and the length of DJJ commitment in situations in which "the kids have aged up, they have done a Category One or Two offense which has a projected Board date of seven or four years" but "they no longer have that [much] time" before aging out. Ugarkovich explained: "I'll say . . . [to a probation officer], it's Category Two, has a projected Board date of four years. And I will ask[, 'D]o you know what that means?['] And I would say 90% of them said[, 'Y]eah, I know what that means, it means he has to do four years.['] No, it's not what it means. It means that based upon Title 15 that is the starting point."
Both Officer Perez and Ugarkovich described the programs and treatment options available at DJJ facilities. Ugarkovich testified that there is no gang-specific rehabilitation program there because DJJ programs must be evidence-based, and no evidence-based gang program yet exists. He did say that about 75 percent of DJJ committees have a history of gang involvement and that this is addressed through cognitive behavior therapy.
III. DISCUSSION
A.G. argues that the juvenile court "relied on a misunderstanding of facts" when deciding to order transfer. The People argue that there was a sufficient factual basis for the decision.
We review the juvenile court's decision to transfer a minor to adult criminal court for abuse of discretion. (See J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 714-715.) The court necessarily abuses its discretion if it bases its decision on findings of fact that are not supported by substantial evidence in the record as a whole. (See People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.)
A. Order Granting Motion to Transfer A. G. to Adult Criminal Court
In its written order, the juvenile court acknowledged that when deciding whether to transfer a minor from juvenile court to adult criminal court, it must consider: (1) the degree of criminal sophistication the minor exhibited; (2) whether the minor can be rehabilitated before the juvenile court's jurisdiction expires; (3) the minor's previous history of delinquency; (4) the success of previous attempts by the juvenile court to rehabilitate the minor; and (5) the circumstances and gravity of the offenses allegedly committed by the minor. (§ 707, subd. (a)(2).) The trial court further acknowledged that "[t]he decision will be made on a totality of the circumstances after consideration of the five factors." The court also wrote that "[t]he minor's role in the crime is relevant to the court's decision" and that "[e]vidence of being an aider or abettor and not the primary aggressor of the crime for example are relevant to the issue of gravity."
The court found that the People had "proven their motion by a preponderance of the evidence and based on a totality of the circumstances" and granted the motion to transfer A.G. to adult criminal court. The court did address each of the criteria individually in its order. Most relevant here are the degree of criminal sophistication exhibited by A.G. and the circumstances and gravity of the offenses A.G. is alleged to have committed.
1. Degree of criminal sophistication
The juvenile court began its discussion of the degree of criminal sophistication exhibited by A.G. by noting that section 707 provides that it 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)(i)-(ii).)
The court did not expressly find that A.G. was criminally sophisticated. However, it appears that the court adopted the facts as Officer Perez had described them, as well as Officer Perez's opinion that A.G. did exhibit criminal sophistication.
The court wrote that because Officer Perez had "supervised [A.G.'s] case for three years[,] she was able to put his actions into context" and "able to use her long term knowledge of [A.G.] and his family as she analyzed his actions." (Fn. omitted.)
The court wrote that Officer Perez and "[b]oth of [A.G.'s] experts" had said that A.G. was mature for his age and added that Officer Perez "did not say whether he seemed mature when he was 15 and that he had grown, just that he seemed mature." From our review of the record, it appears that A.G. had four experts, and only one—Ugarkovich—said that he seemed mature for his age at the time of his interview, which occurred about a year and a half after his arrest. Dr. Shaw found that he was young and immature, Mendoza wrote that he was less mature than others his age, and De La Cruz, while saying nothing about maturity in particular, said that A.G. did not appreciate the impact of his actions.
The court also wrote that Officer Perez had interviewed the current "Mental Health Worker" at juvenile hall before writing her report, but based on the record it appears that she may not have actually talked to the mental health worker until after she had finished her report.
The court wrote that Officer Perez had "pointed out that it appeared that [A.G.] had planned and participated in many aspects of the three day crime spree." It continued, "[A.G.] knew where to purchase a gun, ammunition and drugs. He also knew where certain gang members could be located. There were attempts to conceal the stolen vehicle by placing a piece of paper over the license plate which she opined further indicates planning ahead to conceal past crimes while committing current crimes." From our review of the record, it appears that there was evidence that after J.L. shot Luna on the first night of the crime spree A.G. wanted to shoot somebody too, but there was little evidence that A.G. was the leader in planning "many aspects of the three day crime spree." Also, it appears that the car used during the crime spree had been stolen by M.A. several weeks earlier, and it already had the paper dealer plates on it at the beginning of the crime spree. There does not appear to be evidence in the record that A.G. was involved in stealing the car or hiding its plates.
Also, the court wrote, A.G. "was identified to have actually shot the gun on at least two of the three days of the crime spree": on the first day, he shot "into rival gang territory apparently wounding a rival gang member and killing another (although he is not attributed with being the person who shot the person killed)," and on the third day, he shot "into a crowd of people conducting a vigil for a murdered gang member from their first shooting—where he wounded a bystander in mourning." The court added that "[h]e and his cohorts then proceeded to lead police on a high speed city street and freeway chase." From our review of the record, it appears that A.G. was "identified to have actually shot the gun" only one time, when he wounded Zuniga on the first night of the crime spree. And although he was in the car during the high-speed chase, he was not the driver.
The court wrote that Officer Perez "testified that [A.G.] was immersed in the gang culture by the date of this crime spree which [she] also found to be a sign of his criminal sophistication. She said that he also knew how to use social media to set up a drug deal. All of these facts she stated were in and of themselves signs of life experience, knowledge and sophistication beyond that of an average 14 year old." From our review of the record, it appears that the evidence showed that it was T.R. and J.L., not A.G., who used social media to set up the drug deal.
The court wrote that A.G.'s experts "highlight[ed] [his] childhood trauma which forced him to become a gang member, [his] substance use, and mental health needs." It also noted that his experts said that his heavy use of drugs and alcohol would have affected his capacity for impulse control and ability to appreciate the consequences of his actions. It added that Dr. Shaw had "opined that the crime having been committed in a group of youth with [A.G.] being the youngest lends itself further to the lack of sophistication," but that Officer Perez "believes that since the group is affiliated with a gang bent on a three day crime spree stemming from revenge that this actually shows sophistication."
The court continued, "The Probation Officer did not see the acts as impetuous as they were planned and calculated with many preceding acts prior to the ultimate shootings: the gun purchase, the bullet purchase, the purchasing and putting on of latex gloves, the social media search, the planning of where to find Surrenos to kill. These factors all showed a lack of impulse. She was also not convinced that [A.G.] was a follower and testified that he could have been the leader."
There does not appear to be any evidence in the record as to how far in advance of the crime spree the various crimes were "planned and calculated." There is evidence in the record that A.G. was wearing Raiders gloves, not latex gloves, when he shot Zuniga, but there does not appear to be any evidence about A.G. purchasing latex gloves or "planning of where to find Surrenos to kill."
2. Circumstances and gravity of the offenses
The court explained that when considering the circumstances and gravity of the offenses the minor is alleged to have committed, it may give weight to any relevant factor, including, but not limited to, the actual behavior of the minor, the minor's mental state, the degree of the minor's involvement in the offenses, the level of harm actually caused by the minor, and the minor's mental and emotional development. (§ 707, subd. (a)(2)(E)(i)-(ii).)
The court wrote that Dr. Shaw "did speak about the minor's mental and emotional state to the extent that he had consumed copious amounts of cocaine and vodka during the course of the three-day crimes spree but he did not tie that to this criteria other to infer that perhaps he would not have acted this way if he had not been high. Dr. Shaw also said that the minor suffered from significant trauma and depression but again did not tie it to this criteria or to the actual behavior and role of [A.G.] in this three day crime spree."
While none of A.G.'s experts directly linked a specific aspect of A.G.'s mental state to a specific type of offense, A.G.'s experts' reports and testimony did, however, address how A.G.'s mental state and mental/emotional development, together with his background and circumstances, were connected to his tendency to engage in criminal behavior. For example, in his report, Dr. Shaw described how the neglect, abuse, abandonment, and neurological deficits A.G. suffered led to mental health problems, polysubstance abuse, and acceptance of the gang lifestyle, which in turn led to criminal behavior.
The court wrote that none of A.G.'s experts "analyzed [A.G.'s] role in the crimes" because they had not discussed the facts of the crime spree with him and that "[o]nly the Probation Officer really took this straight on and referred to [A.G.'s] role in this group of kids and to the devastation that these events had." In her report, Mendoza did describe A.G.'s behavior, the degree of A.G.'s involvement in the crime spree, and the level of harm A.G. personally caused. Officer Perez described the facts of the crime spree and the resulting harm but did not detail A.G.'s specific behavior or role in the events.
The court then listed facts such as "[A.G.] participated in robbing a drug dealer by jumping on him and punching him and possibly shooting him" and "[on] [t]he third night, . . . there is evidence to suggest that [A.G.] was the person who shot victim Gudino as he was walking towards a bus stop to go home." During our review of the record, we were unable to find evidence that A.G. shot either Lupercio P. or Gudino.
The court concluded that "[A.G.'s] role was primary. He was not characterized as bullied, pressured, naïve, depressed, desperate or acting in the heat of the moment on behalf of himself or another by any of the evidence." The court stated that the offenses committed during the crime spree "were violent and resulted in the death of one person" and focused on murdered victim Luna in particular. It also noted that the community had been harmed by the high-speed car chase and by having to live in fear of a drive-by shooting.
3. Other section 707 criteria
When discussing whether A.G. can be rehabilitated before the juvenile court's jurisdiction expires, the court acknowledged that A.G. had grown and matured while in juvenile hall (see § 707, subd. (a)(2)(B)(i)-(ii)), but it expressed concern about A.G.'s continued gang-related fighting and drug use. It also wrote that Dr. Shaw "opined that if the substance abuse and the serious mental health issues of PTSD, Depression and ADHD were not addressed that he would be pulled back into gangs" and said that not only had A.G. not participated in a substance abuse program, but it was also safe to assume he had not been treated for PTSD, depression, or ADHD, because he had not been diagnosed with any of these conditions by either his current mental health counselor at juvenile hall or the doctoral student who evaluated him in 2014. At the end of its order the court wrote that although A.G. suffered from some kind of mental health problem, "the psychological evaluation that was performed [by the doctoral student] before the lethal crime spree did not reveal the PTSD or the Chronic Depression that Dr. Shaw saw."
The court wrote that Dr. Shaw "did not opine how long it would take for [A.G.] to engage in rehabilitation—prior to being released safely into the community" but that "[Probation Officer] Perez has assessed in conjunction with DJJ that the period needed for the rehabilitation of these criminal acts would be seven years at the DJJ facility if [A.G.] was found to be responsible for murder." The court continued, "[T]he probation officer who has known [A.G.] for three full years and met with he and his family numerous time[s], testified that there is not enough time for a full implementation of the rehabilitative period necessary" because A.G. would turn 23 in less than seven years. The court concluded that he could not be successfully rehabilitated before juvenile court jurisdiction ends.
As mentioned earlier, A.G. could now be detained at a DJJ facility until age 25, which is also when the juvenile court's jurisdiction would expire. (See §§ 1769, subd. (d)(2), 607, subds. (b), (g)(2).) --------
Officer Perez stated that A.G. would require a commitment of at least seven years only because she mistakenly thought that "[DJJ] believes a murder needs at least seven years for rehabilitation," not because of anything specific to A.G. himself. Ugarkovich said that the average DJJ commitment for first degree murder was six years, not seven, and that the projected Board date was not a minimum term or part of a determinate sentence. Neither Officer Perez nor Ugarkovich estimated how long A.G. personally might need for rehabilitation.
The court also wrote that A.G.'s expert Ugarkovich did not indicate that DJJ would give A.G. "all the treatment that he needed for his particular role in the three day crime spree sufficient to allow him back into society without being a public safety risk." It questioned whether DJJ could rehabilitate A.G. at all, because "DJJ does not have an evidence based gang redirection program [and one] of the more serious facets of this case is the gang entrenchment that [A.G.] displayed prior, during and after the dates of the offenses at bench."
When evaluating a minor's history of delinquent behavior, the court may give weight to factors such as the seriousness of that history and the effect of the minor's family and community environment and childhood trauma on his behavior. (§ 707, subd. (a)(2)(C)(i)-(ii).) A.G.'s own history of delinquent behavior, the court wrote, "was filled with gravitation towards a gang lifestyle, the use of drugs and the possession of weapons," and his "juvenile crime history shows an escalating pattern of danger as does his substance use that must also be sufficiently addressed prior to his release." It described his delinquent behavior and listed programs he could have participated in, but did not. Similarly, when considering the success of previous juvenile court attempts to rehabilitate A.G., the court noted A.G.'s failure to take full advantage of services offered to him in the months before the crime spree. It rejected A.G.'s argument that the attempts at intervention had been insufficient (see § 707, subd. (a)(2)(D)(i)-(ii)) and wrote, "Services can only be offered to people. The Court can order compliance but still they cannot be force fed."
B. Analysis
At the outset, we address one of the "misapprehend[ed] facts" that A.G. characterizes as "glaring." The juvenile court wrote in its order that A.G. had been wearing latex gloves when he emerged from the car at the end of the high-speed chase on the third day of the crime spree, but there was no evidence that A.G. had worn latex gloves at any time. A.G. believes that the court's error improperly imputed to him a level of criminal sophistication he did not possess. However, there was evidence in the record that A.G. was wearing Raiders gloves when he shot Zuniga on the first day of the crime spree, and moreover that gloves were thrown out the car window during the high-speed chase. While the court may have been mistaken as to some of the details, there was still evidence that A.G. wore and discarded gloves during the course of the crime spree.
However, the court relied on other facts that do not appear to be supported by substantial evidence in the record when it found that A.G. fired the gun more than once, that A.G. could have been the leader of the group, that A.G. planned "many aspects" of the crime spree (including "find[ing] Surrenos to kill"), that A.G. covered the stolen car's license plate to help avoid detection, that A.G. used social media to arrange a phony drug deal with Lupercio P., and that all four of A.G.'s own experts found him mature. These facts were important to the court's analysis and findings.
Moreover, even though the court wrote that "[t]he minor's role in the crime is relevant to the court's decision," it in some instances did not distinguish the offenses committed during the crime spree from the acts A.G. personally engaged in. The court emphasized the harm caused by the death of Luna and the danger posed to the community by the high-speed chase, however the record indicated A.G. did not shoot Luna or drive the car during the chase. The decision to try A.G. as an adult must be based on A.G.'s personal behavior and circumstances. (See § 707.)
Because several findings of fact important to the juvenile court's transfer decision were not supported by substantial evidence in the record, we will issue a peremptory writ of mandate directing respondent court to vacate its December 18, 2017 order transferring the matter to adult criminal court and to conduct further hearing on the motion to transfer (with or without taking new evidence, at its election) to ensure that its decision is based on facts that are supported by the record and applicable to A.G. in particular. We express no opinion as to whether A.G. should be transferred to adult criminal court.
IV. DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its December 18, 2017 order transferring the matter to adult criminal court and to conduct further hearing on the motion to transfer (with or without taking new evidence, at its election) to ensure that its decision is based on facts that are supported by the record and applicable to A.G. in particular. This opinion is made final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The temporary stay order shall remain in effect until this decision is final.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
GROVER, J.