Opinion
A167146
11-02-2023
In re D.S., a Person Coming Under the Juvenile Court Law. v. D.S., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Lake County Super. Ct. No. JV311708
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
Markman, J. [*]
D.S. appeals from an order transferring him from the juvenile court to adult criminal court pursuant to former Welfare and Institutions Code section 707. (Stats. 2018, ch. 1012, § 1.) The wardship petition against D.S. alleged two felony counts of forcible sodomy on a child and two felony counts of performing a lewd act on a child. (Pen. Code, §§ 286, subd. (c)(2)(B), 288, subd. (a).) Based on recent changes in the law, we reverse the transfer order and remand for a new hearing.
Undesignated statutory references are to the Welfare and Institutions Code.
At the time of D.S.'s transfer hearing in December 2022, the law required the People to prove by a preponderance of the evidence that the minor should be transferred to a court of criminal jurisdiction. Former section 707, subdivision (a)(3) required the juvenile court to consider five criteria in making that decision: (1) the minor's criminal sophistication; (2) whether the minor could be rehabilitated before juvenile court jurisdiction expired; (3) the minor's previous delinquent history; (4) the success of previous attempts at rehabilitation; and (5) the circumstances and gravity of the alleged offenses. (Former § 707, subd. (a)(3)(A)-(E).) The law also required the court to recite the basis for its transfer decision in its order. (Id., subd. (a)(3).)
Effective January 1, 2023, Assembly Bill No. 2361 amended section 707, subdivision (a)(3) in three ways: (1) it raised the People's burden of proof to clear and convincing evidence; (2) it made the minor's amenability to rehabilitation "the ultimate question for the court to decide," rather than one of the five factors to consider; and (3) it required the court to recite not only the basis for its decision, but to explain the reasons supporting its finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court. (Stats. 2022, ch. 330, § 1.)
D.S. now argues, and the People concede, that these amendments to section 707 require remand for a new transfer hearing here. We agree with the parties that the amendments apply retroactively to D.S., as his case is not yet final. (In re E.P. (2023) 89 Cal.App.5th 409, 416 [minor entitled to benefit of amended statute because case not final] (E.P.); People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304 [concluding Proposition 57 applies retroactively because it "reduces the possible punishment for a class of persons, namely juveniles"].) We also agree with the parties that, applying the amendments retroactively, the juvenile court erred because it applied the preponderance of the evidence standard and directed its analysis to whether transfer was "appropriate," not whether D.S. is "amenable to rehabilitation while under the jurisdiction of the juvenile court." (§ 707, subd. (a)(3).)
The only disagreement between the parties in this appeal is whether the error is subject to harmless error review under People v. Watson (1956) 46 Cal.2d 818, 836. D.S. argues that harmless error review is not appropriate, citing In re F.M. (2023) 14 Cal.5th 701 (F.M.). In F.M., the California Supreme Court addressed the juvenile court's failure to comply with the mandate in section 702 that the court make an express declaration regarding whether to treat a wobbler as a misdemeanor or felony. (F.M., at pp. 704-705.) It concluded that harmless error review was inappropriate, as it "does not address the risk of courts misapprehending the extent of their lawful authority in this particular context." (Id. at p. 716.) It explained that "there is a practical difference in assessing the effect of an error when the court has not articulated whether a discretionary decision was made in the first place," and that "[i]nstead of hypothesizing what decision the juvenile court would have made if it had understood the extent of its lawful authority, reviewing courts have consistently held that remand is appropriate in these circumstances." (Ibid.)
The People disagree. They argue that the error is subject to harmless error review, citing a recent appellate court decision In re T.A. (2023) 90 Cal.App.5th 347. They acknowledge, however, that our Supreme Court recently granted review with directions to the appellate court to vacate this decision and reconsider the cause in light of F.M. and E.P.
Despite arguing that harmless error review should apply here, the People concede that the error is not harmless under the circumstances of D.S.'s transfer hearing because the juvenile court found only two factors under former section 707, subdivision (a)(3) supported transfer: D.S.'s criminal sophistication and the gravity of the offense. The People conclude it is "reasonably probable that the juvenile court may have retained juvenile court jurisdiction over appellant and decline to transfer his case to adult court if it had applied the heightened standard of proof." Given this concession, we need not resolve any dispute regarding the applicability of harmless error review and remand for a new transfer hearing.
DISPOSITION
The order is reversed, and the matter remanded to the juvenile court for a new transfer hearing pursuant to amended section 707.
We concur: Stewart, P.J., Richman, J.
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.