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People v. K.A. (In re K.A.)

California Court of Appeals, First District, Third Division
Jun 2, 2023
No. A166316 (Cal. Ct. App. Jun. 2, 2023)

Opinion

A166316

06-02-2023

In re K.A., a Person Coming Under the Juvenile Court Law. v. K.A., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,


NOT TO BE PUBLISHED

(Marin County Super. Ct. No. JV26918A)

Fujisaki, Acting P.J.

Defendant K.A., age 17 at the time of his offenses, was tried as an adult and found guilty of first degree murder (Pen. Code, § 187), preventing a witness from testifying (id., § 136.1), and criminal conspiracy (id., § 182). In a prior appeal, the judgment was conditionally reversed and the matter was remanded for a transfer hearing in light of Proposition 57. (People v. Blay (Sept. 16, 2019, A138380) [nonpub. opn.] (Blay).) On remand, the juvenile court held a transfer hearing and ordered the case transferred to criminal court.

Under Proposition 57, prosecutors who wish to try a juvenile as an adult must commence the action in juvenile court and move to transfer the matter to adult criminal court. (See People v. Superior Court (Lara) 4 Cal. 5th 299, 303-305 (Lara).)

Assembly Bill No. 2361 (2021-2022 Reg. Sess.) (Assembly Bill 2361) recently amended Welfare and Institutions Code section 707 to raise the prosecution's burden of proof for transferring a juvenile to criminal court. Appealing from the transfer ruling, K.A. contends these statutory amendments (1) apply retroactively to him, and (2) require a remand for a new transfer hearing. We conclude Assembly Bill 2361 applies retroactively and there is a reasonable probability the juvenile court would reach a different conclusion under the current version of section 707. Accordingly, we will conditionally reverse the transfer order and remand the matter for a new transfer hearing.

Further unspecified section references are to the Welfare and Institutions Code.

Factual and Procedural Background

We glean the following facts from the unpublished opinion in Blay. In September 2008, Tong Van Le was killed at the direction of Larry Brian Blay, Jr. because Le was expected to testify against him. "[S.W.] drove the vehicle that followed the victim driving home from the San Francisco market that [Blay] was accused of robbing. [D.B.], [Blay's] brother, identified the victim ('There he is') getting into his car, and gave [S.W.] the orders to follow and 'Don't lose him.' Le had just opened his garage door, and driven his car into the garage, when [K.A.] jumped out of [S.W.]'s car, ran into Le's garage, and fired a bullet into Le's face, while Le was still seated in his vehicle. [D.B.] then left the car, went into the garage, and returned with [K.A.], who was carrying a gun. When [S.W.] inquired 'are there any bullets [left] in the gun?', [K.A.] replied, 'No.'" (Blay, supra, (Dec. 18, 2019, A138380) [nonpub. opn.].)

At the time of the offenses, K.A. was 17 years old, but he was tried as an adult and convicted of first degree murder (Pen. Code § 187), preventing a witness from testifying (id., § 136.1), and conspiring to commit those crimes (id., § 182). He was sentenced to life without possibility of parole plus one year for a firearm enhancement. (Blay, supra, (Dec. 18, 2019, A138380) [nonpub. opn.].)

A. First Appeal - People v. Blay

In an unpublished opinion, Division Two of this court conditionally reversed the judgment as to K.A. and his juvenile accomplices and remanded the matter for a transfer hearing in light of Proposition 57 and Lara, supra, 4 Cal.5th at pp. 303-304 [holding Proposition 57 applies retroactively]. (Blay, supra, (Sept. 16, 2019, A138380) [nonpub. opn.].)

B. Transfer Hearing

On remand, the People filed a juvenile wardship petition against K.A. and moved to transfer K.A. to a court of criminal jurisdiction. The transfer hearing was held in February and March of 2022.

In August 2022, the juvenile court issued a detailed written ruling granting the motion to transfer. The court analyzed the five criteria required for transfer hearings, i.e., the minor's criminal sophistication, amenability to rehabilitation prior to expiration of juvenile court jurisdiction, delinquent history, success of previous rehabilitation attempts, and the circumstances and gravity of the charged offense (§ 707, subd. (a)(3)), as follows.

1. Criminal Sophistication of the Minor

In considering "[t]he degree of criminal sophistication exhibited by the minor," the juvenile court may consider factors such as "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)(3)(A)(i)-(ii).)

The juvenile court noted that at the time of the offenses, K.A. was 17 years old-"at the upper end of minority"-and lived with his grandmother in a stable home, but that his parents had not provided him with a stable home due to their drug and alcohol abuse. K.A. "had witnessed family and friends being shot and killed so he had to appreciate the consequences when he fired at Mr. Le's head at close range-he knew that death was certain. During the hearing, [K.A.] candidly admitted that at the time he simply did not care about the consequences." The court further found "nothing to suggest that [K.A.'s] family encouraged or pressured a criminal lifestyle," and that while K.A. was surrounded by negative peer and gang influences, "he sought those peers and was not a mere follower."

Regarding K.A.'s mental and emotional health, the juvenile court cited evidence of K.A.'s "uncontrollable behaviors," e.g., records describing him as" 'violent and disruptive'" and showing his expulsion from several schools "in connection with violence, threats, defiance and physical aggression towards other students and staff." K.A. "had spent a significant portion (almost three years) of his teen years in juvenile hall or placement programs addressing issues of impetuosity." However, when placed in a structured environment, K.A. exhibited an ability to control and manage behaviors. One of his placements (Glen Mills) was "ideal" and "provided a stable and consistent environment for 20 months," but "that stability and consistency did not successfully address his violence or criminality."

Additionally, the juvenile court found that K.A. "show[ed] a level of sophistication in the subject crime that cannot be ignored." Citing to the Blay opinion, the court noted that K.A. "had the weapon at his home, took affirmative steps to retrieve it, donned gloves to mask evidence of his identity, followed the victim home, waited until the victim was in his garage, and shot the victim several times at close range. There was coordination with others before the crime to obtain and retrieve a firearm, [and] to locate and follow Mr. Le home. There was also coordination with others after the crime to discard evidence. Although the planning was not overly complicated and poorly executed, their actions and movements show that was a plan to commit and cover up the killing."

Ultimately, the juvenile court concluded that while the criminal sophistication of the subject crime "tends to support a transfer to criminal court," K.A.'s difficult upbringing was "a mitigating factor, rendering this [criterion] neutral on the issue of transfer."

2. Amenability to Rehabilitation Prior to Expiration of Juvenile Court Jurisdiction

In considering a minor's amenability to rehabilitation prior to expiration of the juvenile court's jurisdiction, the court may consider factors as such as "the minor's potential to grow and mature." (§ 707, subd. (a)(3)(B)(i)-(ii).)

The juvenile court found that the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ) was the only option that had yet to be used to address K.A.'s delinquency. The court, however, commented that DJJ's impending closure on June 30, 2023 left "only a short time for programming. Furthermore, admission is not guaranteed but is based on issues of compatibility and the ability to benefit from the programming. Even if more time were available, the programming at DJJ is designed for adolescents and would be providing [K.A.] with much of the same kind of services that he received at the Log Cabin and Glen Mills" which were "insufficient to rehabilitate" him.

The juvenile court further found that K.A. "has a keen intelligence that can flourish in the right environment," but that "the Juvenile Justice system is not set up for the longer term, intensive supervision [K.A.] would need to make a successful transition." He has a pattern of doing well in structure and "then immediately defaulting to conduct that poses real danger to the community and to himself." The court then noted that once DJJ closes, "youth will either be released to community supervision or to county/regional secure track programs. Marin does not have its own secure track program and will partner with regional centers as the needs arise. This court is unaware of any regional center that would accept a 30+ year old youth."

3. Delinquent History

In considering the minor's delinquent history, the juvenile court may consider factors such as its seriousness and "the effect of the minor's family and community environment and childhood trauma on the minor's previous delinquent behavior." (§ 707, subd. (a)(3)(C)(i)-(ii).)

Here, the juvenile court observed that K.A. had an extensive history of delinquent and criminal behavior. When he was 13 years old, K.A. was charged with battery and threats against another student at his school, leading to his expulsion. He was later arrested for driving a motorcycle without a license and fleeing from a pursuing peace officer. He was arrested again shortly thereafter for possession of a stolen vehicle, driving without a license, and running a red light, which had led to a collision and property damage. In middle school, K.A. threatened a staff member and was expelled from the school. He was "confrontational, argumentative and threatening to staff at his third school" and was suspended. When placed in the Walden House residential program, he absconded twice, leading to the issuance of bench warrants. In 2006, he appeared in court on a charge of robbery in the second degree, theft, and use of a deadly weapon. The victim in that incident was beaten, and K.A. was apprehended with a gun in his waistband. He was committed to another residential program, Log Cabin, but absconded" 'early'" in his placement. Within six weeks of his placement at Log Cabin, K.A. was involved in a carjacking and four street robberies in a 24-hour period. When law enforcement responded, K.A. and the other involved youth engaged in a high-speed chase across the Bay Bridge and crashed the vehicle.

In the juvenile court's words, K.A.'s "delinquency began at a young age, spanned both in school and on the streets, was violent, and escalating in both severity and frequency when he was not in secure confinement. This rapid rise in violence posed a threat to the community and to himself. This criteri[on] favored transfer to criminal court."

4. Success of Previous Rehabilitation Attempts

In considering the success of previous attempts by the juvenile court to rehabilitate the minor, the court may consider factors such as "the adequacy of the services previously provided to address the minor's needs." (§ 707, subd. (a)(3)(D)(i)-(ii).)

Here, the juvenile court noted the multiple efforts to rehabilitate and assist K.A., including community counseling, therapy, and monitoring, progressing to supervised probation and recommendations for residential substance abuse treatment. The court found that "[o]ther than commitment to the DJJ, these encompass the services in the juvenile justice arsenal. They have all been offered. Some tolerated, some embraced, and all others declined." The court ultimately concluded that "[s]ignificant Juvenile Justice tools were disbursed but were not able to rehabilitate [K.A.]" and that this criterion favored transfer to criminal court.

5. Circumstances and Gravity of Offense

In considering the circumstances and gravity of the offense alleged in the juvenile delinquency petition, the juvenile court may consider factors such as "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)(3)(E)(i)-(ii).)

Here, the juvenile court found the facts of the offense reflected "a premeditated murder to eliminate a witness.... [T]here was substantial evidence of lying-in wait and that [K.A. and his accomplices] concealed their true intent and purpose'. There is no indication or evidence that [K.A.] was unaware of the unfolding crime or that he was coerced or in fear for his own safety-he had retrieved and was holding the firearm during the drive. He jumped out of the car, entered Mr. Le's garage and pulled the trigger at close range. Murder is a grave offense, a life is gone. Lying in wait and dissuading a witness makes it even more callous." The court also noted the harm and devastation that K.A. caused to the victim's wife and two young daughters, which in addition to his death included loss of the family business and sale of the family home due to fear of retribution. Finally, the court noted that K.A.'s premeditated execution of a witness "prevent[ed] the presentation of evidence to a court and jury" and "also sen[t] a message of intimidation to society, that they are not safe, that those providing information to law enforcement will be punished, that justice is not achievable, and that the system does not protect the innocent. In effect it seeks to instill fear." Accordingly, the court found that the gravity of K.A.'s offense "points heavily towards transfer to criminal court."

Based on its analysis of the five criteria under section 707, subdivision (a)(3), the juvenile court found that the People met the applicable "burden of proof by a preponderance of the evidence" to demonstrate that transfer was appropriate.

C. Post-Transfer Events

In September 2022, the Governor signed Assembly Bill 2361, which went into effect on January 1, 2023, and raised the prosecution's burden of proof for transferring a juvenile to criminal court. (Stats. 2022, ch. 330, § 1, eff. Jan 1, 2023.) In late September 2022, K.A. timely appealed the juvenile court's transfer ruling.

Discussion

A. Transfer Under Section 707

Prior to the attachment of jeopardy, the prosecution may move to transfer a minor from juvenile court to a court of criminal jurisdiction. (§ 707, subd. (a)(1).) In making a transfer decision, the juvenile court "shall consider the criteria specified in" section 707, subdivision (a)(3), subparagraphs (A) to (E). (§ 707, subd. (a)(3).)

At the time of K.A.'s transfer hearing, "the governing law and the corresponding Rule of Court required the petitioner to establish by a preponderance of the evidence that 'the minor should be transferred to a court of criminal jurisdiction.'" (In re S.S. (2023) 89 Cal.App.5th 1277, 1284 (S.S.), internal footnote omitted.) Assembly Bill 2361 amended section 707 to require that the prosecution establish by clear and convincing evidence that the minor is not suitable for rehabilitation under the juvenile court system. (Stats. 2022, ch. 330, § 1; § 707, subd. (a)(3).) The clear and convincing evidence standard" 'demands a degree of certainty greater than that involved with the preponderance standard, but less than what is required by the standard of proof beyond a reasonable doubt.' [Citations.]' "Clear and convincing" evidence requires a finding of high probability.' [Citations.] Courts have also described the standard 'as requiring that the evidence be" 'so clear as to leave no substantial doubt'; 'sufficiently strong to command the unhesitating assent of every reasonable mind.'" '" (S.S., at p. 1286.)

Additionally, Assembly Bill 2361 makes the minor's amenability to rehabilitation "the ultimate question for the court to decide" and not simply one of the five factors for consideration (In re E.P. (2023) 89 Cal.App.5th 409, 416 (E.P.)). The legislation further requires that the juvenile court's on-the-record explanation for any decision to transfer "include the reasons supporting the court's finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court." (Stats. 2022, ch. 330, § 1; § 707, subd. (a)(3).) "Taken together, the changes to section 707 refocus juvenile courts on minors' amenability to rehabilitation." (S.S., supra, 89 Cal.App.5th at p. 1288.) "Given the Legislature's refocusing on minors' amenability to rehabilitation, expert testimony will likely be necessary for a complete analysis." (Id. at p. 1286.)

Still, "[u]nder the amended statute, like the previous version, the court has the discretion to conclude that one or more of the five factors [under section 707, subdivision (a)(3)] predominate so as to determine the result, even though some or all of the other factors might point to a different result." (E.P., supra, 89 Cal.App.5th at p. 417.)

B. Retroactivity

The parties agree that Assembly Bill 2361 is retroactive to all cases not yet final on appeal, including the instant matter. We likewise agree. (See In re T.A. (2023) 90 Cal.App.5th 347, 351-352 [applying Assembly Bill 2361 to nonfinal cases because its ameliorative benefit of raising burden of proof reduces possible punishment for juvenile offenders]; S.S., supra, 89 Cal.App.5th at pp. 1288-1289 [same].)

It is also undisputed that the juvenile court did not apply the current clear and convincing standard of proof but instead granted transfer based on its finding that the People carried their burden of proof "by a preponderance of the evidence."

C. Miscarriage of Justice

In light of the above, the remaining question is whether the juvenile court's failure to apply a clear and convincing standard of proof constituted a "miscarriage of justice" (Cal. Const., art. VI, § 13) that compels remanding the case for a new transfer hearing. "Because the juvenile court erred in applying state law, we will find a miscarriage of justice occurred only if' "after an examination of the entire cause, including the evidence," [we are] of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (S.S., supra, 89 Cal.App.5th at p. 1289.)

We conclude that in light of Assembly Bill 2361's heightened standard of proof and refocusing on minors' amenability to rehabilitation, as well as certain evidentiary gaps in the current record, there is a reasonable probability that the juvenile court would reach a different decision on the transfer motion under the current version of section 707.

As the juvenile court observed, K.A. demonstrated keen intelligence and the ability to control and manage his adverse behaviors when placed in a structured environment. Although the court understandably had practical concerns about DJJ's impending closure and the adequacy of the programming for someone of K.A.'s age, the current record lacks any clear indication that K.A. would not be eligible for further rehabilitation upon DJJ's closure. DJJ parole agent and liaison Lorraine Custino testified that upon closure, minors at DJJ "will be transferred back to their county of commitment and then they will decide what to do. Most counties have stated that they will go to their secure track at their county. That will be totally up to the counties they go back to. Once we are close[d], we are totally out of that picture." On appeal, the People have pointed to no testimony or evidence explaining what might happen to K.A. at the county level upon DJJ's closure.

We acknowledge the juvenile court indicated that "Marin does not have its own secure track program" and that the court was "unaware of any regional center that would accept a 30+ year old youth." However, the heightened standard of proof requires that the People address more directly the question of whether a county program or regional center could provide material rehabilitative benefits to K.A. after DJJ closes.

Custino testified at the transfer hearing that age is not a defining factor in who DJJ will accept, and that DJJ would not reject anyone simply because they were over the age of 30. According to Custino, the DJJ director would make the decision to admit someone age 30 or older "to make sure they can materially benefit from our services since our services were designed for the . . . [¶] adolescent brain.... If they can materially benefit from our services, then we would accept." Custino further explained that for those who had been rejected for DJJ placement since the passage of Proposition 57, the decision "was a combination of age and some of them have been in prison and had significant negative behavior history while they were in prison." We have not been pointed to any evidence that K.A. had prior significant negative behaviors in prison that would impact the DJJ director's decision whether to admit K.A.

Although K.A. is now over the age of 30, the statutory scheme "permits the prosecutor to petition for an extension of juvenile court jurisdiction, even past the age of 25, if discharging a juvenile offender '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.'" (O.G. v. Superior Court (2021) 11 Cal.5th 82, 93, citing § 1800, subd. (a).) On this score, we note Custino testified that at the time of the transfer hearing, there was a 27-year-old individual in DJJ, and that she was aware of a 29-year-old individual being accepted into DJJ after being returned from prison due to Proposition 57.

Thus, the salient question as it relates to K.A.'s amenability to rehabilitation is whether he would be eligible for and materially benefit from DJJ and county-level services. Although Custino provided general testimony about various programs and treatments at DJJ, there was no evidence or testimony regarding county-level programs, let alone any expert testimony on whether available programs might materially benefit K.A., particularly in light of the record of his diagnosis of adjustment disorder with disturbance of conduct. (See S.S., supra, 89 Cal.App.5th at p. 1286 [expert testimony will likely be necessary for complete analysis of minor's amenability to rehabilitation].) Though the juvenile court referred to the findings of a psychological evaluator, both the evaluator and the juvenile court found that a secured and structured setting like the residential programs he had previously been placed in-or DJJ for that matter-would be beneficial for K.A.

For these reasons, we conclude it is appropriate to conditionally reverse and remand the case for a new transfer motion under the current version of section 707. We emphasize, however, that nothing in this opinion should be construed to indicate how the juvenile court should rule. Moreover, we acknowledge that the court found K.A.'s prior delinquency and the circumstances and gravity of the offense to heavily favor transfer to criminal court, and that even under the current version of section 707, the court retains "discretion to conclude that one or more of the five factors [under section 707, subdivision (a)(3)] predominate so as to determine the result." (E.P., supra, 89 Cal.App.5th at p. 417.) Nevertheless, because amenability to rehabilitation is now "the ultimate question for the court to decide" (E.P., at p. 416), we conclude the record, as currently constituted, still leaves" 'substantial doubt'" that the juvenile court would reach the same decision under the current version of section 707 (S.S., supra, 89 Cal.App.5th at p. 1286).

Disposition

The transfer order is conditionally reversed, and the matter is remanded for a new transfer hearing to be conducted pursuant to section 707 as amended. If the juvenile court determines it would not have transferred the case to the criminal court applying the current law, it shall treat K.A.'s convictions as juvenile adjudications and order an appropriate disposition. If the court determines there is clear and convincing evidence that K.A. is not suitable for rehabilitation under the juvenile court system, the court shall transfer the case to criminal court, which shall then reinstate K.A.'s sentence.

WE CONCUR: Petrou, J. Rodriguez, J.


Summaries of

People v. K.A. (In re K.A.)

California Court of Appeals, First District, Third Division
Jun 2, 2023
No. A166316 (Cal. Ct. App. Jun. 2, 2023)
Case details for

People v. K.A. (In re K.A.)

Case Details

Full title:In re K.A., a Person Coming Under the Juvenile Court Law. v. K.A.…

Court:California Court of Appeals, First District, Third Division

Date published: Jun 2, 2023

Citations

No. A166316 (Cal. Ct. App. Jun. 2, 2023)