Opinion
F086019
06-07-2024
In re F.G., a Person Coming Under the Juvenile Court Law. v. F.G., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
William Safford, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, No. 22JQ-0048 Jennifer Lee Giuliani, Judge.
William Safford, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
INTRODUCTION
In or about 2010, appellant had sexual intercourse with his niece, the victim. At the time, appellant was 17 years old and the victim was only 11 years old. The illicit conduct occurred in Kings County. In 2011, it was discovered that the victim was pregnant; she was 12 years old at the time. Appellant, who had turned 18 years of age, fled to Mexico, where he remained for about 11 years.
In 2022, appellant returned to California and he was arrested for his prior conduct. A juvenile wardship petition was filed, alleging he had committed sexual crimes with the victim, including rape, when he was 17 years old.
Although the allegations in the wardship petition have not been sustained, appellant admitted to both law enforcement and his own defense expert that he had sex with the victim on about five occasions when she was 11 years old.
In 2023, the prosecution filed a motion to transfer appellant to adult criminal court. A contested evidentiary hearing occurred. At that time, appellant was 30 years old. Following the presentation of evidence, the juvenile court granted the motion and ordered appellant transferred to adult court.
Appellant contends the juvenile court abused its discretion. He also raises a claim under the California Racial Justice Act of 2020 (RJA) (Stats. 2020, ch. 317), asserting that the court, the prosecutor and the probation officer exhibited implicit bias against him. We reject appellant's arguments and affirm the transfer order.
BACKGROUND
We summarize the material facts from the transfer hearing. We provide additional details later in this opinion when relevant to the issues which appellant raises.
I. The Alleged Criminal Behavior.
Appellant grew up in Mexico. When he was a teenager, he relocated with his father and brother to Hanford, California. They began living at his sister's home. His sister is the mother of the victim. Two adults and three children, including the victim, were living in that home before appellant relocated there with his father and brother.
At the contested transfer hearing, it became undisputed that appellant had engaged in vaginal intercourse with the victim. Both the victim and appellant made separate statements to law enforcement admitting they had sex together. When the sex occurred, appellant was about 17 years eight months old. The victim was 11 years old when appellant had sex with her.
The victim's pregnancy was discovered in 2011, about five and a half months after appellant had sex with her. At that time, the victim was 12 years old.
Once the pregnancy was discovered, law enforcement was immediately contacted. The victim told law enforcement that appellant, her uncle, was responsible for her pregnancy. She denied having sexual relations with anyone else.
Law enforcement attempted to contact appellant. At that time, appellant was 18 years old. When he learned that the victim was pregnant and law enforcement was looking for him, appellant fled to Mexico. He later said he fled because he was scared and he did not want to be "locked up."
II. Appellant is Arrested and the Juvenile Wardship Petition is Filed.
Appellant remained in Mexico for about 11 years. He reports that, during that time, he fathered three additional children with another woman. They did not marry. The mother of his three other children relocated to California. In or about 2022, appellant returned to California. He was spotted by someone familiar with the victim's situation, and law enforcement was notified. Appellant was arrested in California in July 2022.
In 2022, the victim provided additional information to law enforcement about appellant's behavior. According to the victim, the illicit contact occurred in her bedroom when her parents were asleep. Appellant initially touched her on her breasts and vagina outside her clothing. He later touched her on her breasts and vagina under her clothing. He penetrated her vagina with his fingers on five separate occasions. On four separate occasions he had vaginal intercourse with her. He penetrated her vagina with his penis, and he ejaculated inside her. The victim reported that, when the assaults first began, she would tell appellant to stop, but he did not. As the assaults continued, she ceased telling him to stop because she felt it would not matter. She was scared. She indicated that appellant would threaten her, saying," 'If you tell your parents, you know what's going to happen to you.'" (Italics omitted.)
Because appellant's behavior with the victim occurred when he was 17 years old, he was not charged directly in adult court. In 2022, a juvenile wardship petition was filed against him. At that time, appellant was 29 years old. The wardship petition alleged the following six counts:
(1) In counts I and II, lewd and lascivious acts with the victim in violation of Penal Code section 288, subdivision (a), i.e., touching her breast and touching her vagina. It was alleged that these acts occurred when she was younger than 14 years of age.
(2) In counts III, IV and V, three separate acts of forcible rape with the victim in violation of Penal Code section 261, subdivision (a)(2). It was alleged that these acts occurred when she was younger than 14 years of age. It was alleged that, in conducting the final rape, appellant inflicted great bodily injury on the victim (Pen. Code, § 12022.7, subd. (a)).
(3) In count VI, sexual penetration of the victim by a foreign object by means of force, violence, duress, menace and fear when she was younger than 14 years of age in violation of Penal Code section 289, subdivision (a)(1)(B).
After filing the wardship petition in juvenile court, the prosecutor moved to transfer appellant to adult court.
III. The Transfer Hearing.
On March 7 and 8, 2023, the juvenile court conducted a contested transfer hearing. At that time, appellant was 30 years old.
At the hearing, the parties stipulated that, in August 2022, appellant had been convicted of a misdemeanor in violation of Penal Code section 148, subdivision (a)(1) (resisting or delaying arrest). That conviction stemmed from appellant's conduct when he was taken into custody in this matter in July 2022.
Two witnesses testified at the hearing. The first was an expert, Mary Butler, who testified on appellant's behalf. The other witness was a probation officer, Esmeralda Chavez.
In addition to the testimony from these two witnesses, the juvenile court considered the following four exhibits, which were moved into evidence:
(1) Chavez's "supplemental" probationary report (exhibit 1);
A juvenile court may rely, in part, on a probation officer's report when considering whether to transfer a minor to the jurisdiction of the adult criminal court. (Cal. Rules of Court, rule 5.770(b).)
(2) Butler's "psychosocial assessment" of appellant (exhibit 2);
(3) Butler's curriculum vitae (exhibit 3); and
(4) Appellant's school records from Hanford High School (exhibit 4).
We summarize the relevant evidence from the contested transfer hearing.
A. Butler's testimony.
Butler is a licensed marriage and family therapist, and a professional clinical counselor. For this hearing, the juvenile court recognized her as an expert in mental health.
Prior to her testimony, Butler met with appellant on multiple occasions, and she interviewed him for three or four hours. It was Butler's opinion that appellant should not be transferred to the adult court and he should remain under the jurisdiction of the juvenile court. Appellant was raising children, he had no other criminal history, and Butler believed he was remorseful.
Butler admitted that the current criminal charges are "very grave" in nature. However, she said the charges had to be viewed in context, and they did not justify transferring appellant to adult court. According to Butler, no factor supported a transfer. Appellant did not have a prior criminal history and there were no previous attempts by a juvenile court to rehabilitate him.
Butler testified it was "very confusing" regarding the amount of time the juvenile court might have to rehabilitate appellant. She did not have enough information in this regard. Given appellant's age, she was not aware of any specific program in the County which might be available to provide rehabilitation services to appellant.
According to Butler, appellant had expressed remorse, which she opined was important for his rehabilitation. She believed he could be rehabilitated, and he had already started that process. She noted that he had had no recorded behavioral problems while he was in jail.
Butler stated that appellant had suffered childhood trauma. A Mexican cartel had entered appellant's community. According to Butler, that experience could have impacted his level of sophistication, and his mental and emotional health at the time of these offenses. In her "Psychosocial Assessment" of appellant, Butler noted appellant's prior problems with a cartel in Mexico. He indicated to her that a cartel had harassed his hometown and his family. According to appellant, the cartel had killed his brother and sisters. His family had to flee to the United States to avoid the cartel violence.
Butler opined that appellant had not shown criminal sophistication. He reported to her that the victim had looked 15 years old when he had sex with her. According to appellant, the victim had approached him sexually and the victim had been the aggressor. Appellant told her that he knew "it was wrong and he regretted it." Butler told the juvenile court that she believed, in general, it was possible the 11-year-old victim "came on" to appellant, who was almost 18 years old at the time.
Butler opined in her written report that appellant did not meet the criteria for pedophilic disorder. She noted in her report that this disorder does not apply to an individual in late adolescence who is involved in an ongoing sexual relationship with a 12- or 13-year-old. At the transfer hearing, Butler denied knowing when she wrote her report that the victim was 11 years old when she became pregnant. She testified that she would have to research additional criteria to opine whether appellant could be classified as having pedophilic disorder if the victim were under the age of 12.
B. Chavez's testimony.
Chavez was an officer in the County's probation department. Prior to her testimony, she had interviewed appellant for about 45 minutes.
Chavez noted that appellant had attended Hanford High School when he was living in the victim's home. Appellant's grades at that time were very low and he was failing classes. His school records show appellant had been suspended for three days for challenging another student to fight.
Chavez believed appellant was criminally sophisticated at the time he committed the charged allegations. Appellant was six years older than the victim and he was about to turn 18. The sexual acts occurred more than once. Chavez believed appellant had "groomed" the victim because multiple sexual acts had occurred before he progressed to vaginal intercourse. She noted that appellant had left the country as soon as the victim's pregnancy became known.
Chavez was aware that, if appellant were committed to a secure youth treatment facility, the juvenile court would retain jurisdiction over him for possibly two years from the date of his commitment. She was "well versed" on what services could be offered to him. She calculated appellant's maximum period of confinement at 28 years eight months, which was his total adult exposure.
Chavez testified that, if appellant was not sent to a secure youth treatment facility, "we would not be able to render services to him because they are all for juveniles and he has surpassed that age limit." She said the probation department did not know where to house appellant. The department had reached out "to other programs." Those other programs could work with appellant if he was a minor, but not as an adult. According to Chavez, the probation department had been brainstorming what to do because this was a unique situation. She felt there were no "appropriate services" to offer appellant. However, she testified that, if this case stayed in the juvenile system, "some type of accommodations could be made where he may be able to receive some type of treatment." She noted that any possible program would have to articulate the length of time it would take to complete.
Until recently, the Division of Juvenile Justice (DJJ) was "the state's most restrictive placement for its most severe juvenile offenders ...." (In re Miguel C. (2021) 69 Cal.App.5th 899, 902.) The DJJ is also known as "the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF)." (In re J.B. (2022) 75 Cal.App.5th 410, 413, fn. 1.) "The DJJ was previously known as the California Youth Authority [CYA]." (In re Miguel C., supra, 69 Cal.App.5th at p. 906, fn. 4.) In 2020 the Legislature enacted "juvenile justice realignment" by passing Senate Bill No. 823 (2019-2020 Reg. Sess.). (Stats. 2020, ch. 337.) Implementing the Legislature's juvenile justice realignment program required the closure of DJJ and the transfer of its responsibilities onto California's counties. (Welf. & Inst. Code, § 736.5, subd. (a).) The agency formerly known as DJJ is being shuttered and, after July 1, 2021, it no longer accepts court commitments except in limited circumstances. (Welf. & Inst. Code, § 733.1.) DJJ closed on June 30, 2023. (Welf. & Inst. Code, § 736.5, subd. (e).) Due to the closure of DJJ, the Legislature directed counties, beginning July 1, 2021, to create "secure youth treatment facilities" for those youth who previously could have been committed to DJJ. (See, e.g., Welf. & Inst. Code, § 875.)
Chavez explained that, before placement, appellant would first need an assessment to determine the type of treatment he would receive. A detailed treatment plan specific to him would be created, but "our facility would not be able to offer that for him" because no sex offenders are provided services in their facility. She acknowledged that a "consortium" exists and it was possible someone might have a program for a juvenile sex offender. However, she was unaware if a program within the consortium was actually available for appellant because of his age. She was also unaware of anyone aged 30 or older participating in the County's juvenile sex offender program. According to Chavez, nobody in the County over the age of 30 was currently receiving juvenile court services at that time. She opined that appellant could not be rehabilitated in the juvenile court, at least in part, because there was no specific service available to him given his age.
Chavez acknowledged that appellant had room for growth and he could benefit from services, including counseling. She was not aware of appellant committing any other crimes other than the ones charged in this petition. However, she reiterated that, at the present time, probation did not have any services available for him. According to Chavez, appellant prevented juvenile rehabilitation because he had fled to Mexico when these crimes were discovered. She believed that, based on his past actions, appellant had avoided services that could have been provided to him.
According to Chavez, it appeared appellant still needed rehabilitation because he never mentioned the victim or appeared remorseful at all. She noted that appellant had asked to be released on a GPS monitor so he could work.
C. The disputed gang evidence.
At the contested transfer hearing, the juvenile court learned that appellant had gang involvement when he lived in Mexico before these alleged crimes occurred. A conflict in the evidence arose regarding the ramifications of appellant's prior gang affiliation.
Appellant had reported to Butler that he had participated in some "gang activity" when he lived in Mexico. However, he had no gang involvement when he lived in the United States. Appellant's Mexican gang was called "Barrio Banquetez" or barrio banquetas (BB). According to Butler, appellant had claimed BB was a "neighborhood gang." He said his gang would fight other youths who came into the neighborhood. He became involved in the gang at the age of 14. He claimed to have left the gang when he was 19 years old. He denied that his gang activity was involved with a cartel. Instead, he claimed he and his family had to flee Mexico because of problems with a local cartel.
Appellant had numerous tattoos. The number "13" was tattooed on his stomach using old English script. Appellant admitted that this tattoo represented his gang and the number represented "Southerner." He also had a tattoo in Spanish across his upper chest saying "Forgive Me For My Crazy Life." He had other miscellaneous tattoos on his face and arms.
Butler opined at the juvenile transfer hearing that appellant's gang activity in Mexico was dissimilar to what would be expected of a criminal street gang in the United States. She noted appellant had said BB "was more protecting a neighborhood from another group coming from a different neighborhood of youth." Appellant had denied intentionally planning crimes, and they did not wear gang colors.
In contrast to Butler's testimony, Chavez opined that BB was a criminal street gang. She had personally observed appellant's tattoos, which she believed were gang related.
Chavez explained that the name of appellant's gang, barrio banquetas, or barrio banquetez, meant a particular "street name" from his area of town. She viewed appellant's conduct in Mexico as "a serious gang affiliation with organized gang members [who] not just take care of their subset, but anybody who's affiliated with the number 13." Chavez testified that she had formal gang training. Her training involved subsets, southerners, northerners and prison gangs. Chavez believed appellant may not have been truthful to Butler about the real extent of his prior gang involvement.
When Chavez was asked about her "training as to southerner gang members in Mexico," she talked about how the MS 13 gang "originated" in Mexico and it subsequently entered the United States and was in the prison system here.
IV. The Court's Ruling.
On March 27, 2023, the juvenile court issued its ruling regarding the motion to transfer appellant to adult court. The court concluded that appellant had groomed the victim. According to the court, appellant's conduct was "sophisticated and deliberate." The court stated that this conduct was some of "the worst" it had seen. The court noted that appellant continued to blame the 11-year-old victim for his behavior. The court believed appellant was not remorseful for his prior behavior, but, instead, he was sorry to be in custody. According to the court, appellant had not taken any responsibility for his illegal conduct or its effects.
The court concluded that, because he was 30 years old, appellant could not be placed in any short-term residential therapeutic program. In addition, a secure youth treatment facility was not appropriate. The court noted that the probation department had researched potential services and it did not locate any that would be appropriate while appellant was under the jurisdiction of the juvenile court.
The court stated that juvenile services may have been available for appellant if he had not fled to Mexico and avoided prosecution. The court found by clear and convincing evidence that appellant was not amenable to rehabilitation while under the jurisdiction of the juvenile court. It granted the motion to transfer appellant to adult court.
We turn to appellant's specific arguments in this appeal.
DISCUSSION
I. The Juvenile Court Did Not Abuse Its Discretion.
Appellant contends that the juvenile court abused its discretion. According to appellant, the court failed to understand the law, and its factual findings were not based on substantial evidence. Appellant maintains that his federal constitutional rights to due process were violated.
A. The standard of review.
An abuse of discretion standard is used to review a juvenile court's order transferring a minor to adult criminal court. (J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 714.) Substantial evidence must support the court's findings of fact, and its conclusions of law are reviewed de novo. (Ibid.) An appellate court will reverse the juvenile court's application of the law to the facts only if it was" 'arbitrary and capricious.'" (Ibid.)
B. An overview of the applicable law.
In order to transfer a minor to adult criminal court, a juvenile court must find by "clear and convincing evidence" that the minor is "not amenable to rehabilitation while under the jurisdiction of the juvenile court." The prosecution bears the burden of proof. (Welf. &Inst. Code, § 707, subd. (a)(3); see also Cal. Rules of Court, rule 5.770(a), (b)(3).)
All future statutory references are to the Welfare and Institutions Code unless otherwise noted.
The issue is not whether the minor committed the alleged acts. Instead, the "ultimate question" for a juvenile court to decide is whether the minor is amenable to rehabilitation. (In re E.P. (2023) 89 Cal.App.5th 409, 416; see also People v. Chi Ko Wong (1976) 18 Cal.3d 698, 716.)
C. The court's findings and appellant's arguments.
In granting the transfer motion, the juvenile court examined five statutorily defined criteria. We summarize the court's relevant findings. In each instance, appellant contends the court erred.
1. The first criterion.
The first criterion which the juvenile court examined was the "degree of criminal sophistication" which appellant exhibited. (See § 707, subd. (a)(3)(A)(i).)
When evaluating this criterion in 2023, the court was permitted to give weight to any relevant factor, including, but not limited to:
(1) Appellant's age, maturity, intellectual capacity, and physical, mental, and emotional health at the time of the alleged offense;
(2) Appellant's impetuosity or failure to appreciate risks and consequences of criminal behavior;
(3) The effect of familial, adult, or peer pressure on appellant's actions;
(4) The effect of appellant's family and community environment; and
(5) The existence of childhood trauma. (§ 707, former subd. (a)(3)(A)(ii).) When rendering its ruling, the court was aware of these considerations.
Effective January 1, 2024, Senate Bill No. 545 amended section 707 to require a juvenile court to consider this and other factors, which were previously discretionary. (See § 707, subd. (a)(3)(A)-(E).) This bill also amended subdivision (a)(3)(A)(ii) of section 707 to include "the effect of the minor's family and community environment; the existence of childhood trauma; the minor's involvement in the child welfare or foster care system; and the status of the minor as a victim of human trafficking, sexual abuse, or sexual battery."
a. The court's findings.
For this first criterion, the juvenile court made the following relevant findings.
The court concluded that there was no evidence of appellant's impetuosity. When engaging in the prohibited acts with the victim, appellant had acted alone and under no outside influence.
According to the court, appellant had the ability to appreciate the risks and consequences associated with his behavior. Appellant reported that he removed his penis from the victim's vagina before ejaculating. According to the court, this suggested he was attempting to cover up his crimes.
Appellant lived in a house "full of people" but he was successful in keeping hidden his multiple incidents of sexual abuse. The court believed that this showed planning. According to the court, it is likely appellant had to wait for his brother and father to fall asleep in the living room before he entered the victim's room.
The court noted that appellant had acknowledged the wrongfulness of his acts, but he continued to blame the 11-year-old victim for his behavior. Appellant had threatened the victim so she would not tell her parents. The court found that appellant's decision to continue the sexual assaults on the victim was calculated and deliberate, and not the result of impulse.
According to the court, the totality of the circumstances demonstrated that this factor weighed in favor of transferring appellant to adult court.
b. Appellant's arguments.
Appellant contends the juvenile court abused its discretion in finding that this criterion supported transferring him to adult court. According to appellant, substantial evidence did not support the court's findings and the prosecutor failed to prove this factor by clear and convincing evidence.
Appellant notes that the juvenile court referred to a lack of evidence showing impetuosity. The court also found no evidence that adult or peer pressure contributed to the commission of these alleged crimes. Appellant contends that the juvenile court's findings "significantly overstate the record." He asserts that the court had a leap in logic when it found that, because he went into the victim's room at night while her parents were asleep, his conduct was "calculated and deliberate." Appellant argues this record lacks "actual evidence of affirmative complex steps taken to achieve" his improper goals. He maintains that the court's chastisement of him for continuing to blame the 11-year-old victim for his behavior was not relevant for this criterion. He asserts that, if anything, his blaming shows his diminished sophistication. He contends it is difficult "to endorse the usual presumption" that he received a fair hearing, and he claims he was denied due process.
We reject appellant's various arguments. Substantial evidence supports the court's findings.
Appellant committed numerous and separate lewd acts with the victim. His repeated behavior escalated until he was having unprotected vaginal sex with her. He admitted to law enforcement that he had sex with her about five or six times on her bed.
Appellant threatened the victim. He told her," 'If you tell your parents, you know what's going to happen to you.'" (Italics omitted.) The victim reported that she initially told appellant to stop, but he would not. As the assaults continued, she ceased telling him to stop because she felt he would not change his behavior.
Appellant was successful in hiding his illicit conduct. Appellant slept in the living room with his father and brother. According to the victim, appellant would go into the victim's room when her parents were asleep.
Appellant reported to Butler that he knew his behavior "was wrong." After he was arrested, appellant admitted to law enforcement that he had had sex with the victim on her bed. He claimed he had pulled out and ejaculated outside her vagina, but, on a few occasions, he continued having sex with her after ejaculating. A reasonable inference may be drawn from this evidence that appellant knew his conduct was inappropriate.
When speaking with Butler, appellant denied any physical, emotional or sexual abuse against him. He denied a history of mental health issues for himself and his family.
The record amply supports the juvenile court determination that the "degree of criminal sophistication" favored transferring appellant to adult court. Appellant was 17 years old and the victim was 11 years old when he engaged in repeated lewd acts with her, resulting in her pregnancy. A reasonable inference may be drawn that appellant understood the potential consequences of his actions, but he continued. Based on the evidence appearing in this record, we reject appellant's assertion that the prosecution failed to meet its burden of proof for this criterion.
Likewise, we disagree that the burden of proof was shifted. Instead, the court understood that the People bore the burden to establish the criteria for transfer based on clear and convincing evidence. Nothing demonstrates or even reasonably suggests that this juvenile transfer hearing was unfair, or that the court did not have reliable and accurate information before it. As such, we reject appellant's contention that his due process rights were violated. (See Kent v. United States (1966) 383 U.S. 541, 562 [a juvenile transfer hearing "must measure up to the essentials of due process and fair treatment"]; see also People v. Chi Ko Wong, supra, 18 Cal.3d at p. 719 [a probation report must be based on "accurate and reliable information"].)
Finally, we address appellant's assertion that the juvenile court misunderstood the law. In part, appellant cites Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173 (Kevin P.).
In Kevin P., the appellate court held "the mere fact that a minor is of normal intelligence ... [or that minor's] knowledge that his actions were wrong and his ability 'to appreciate risks and consequences of criminal behavior' [citation] ... do not in and of themselves demonstrate criminal sophistication." (Kevin P., supra, 57 Cal.App.5th at p. 193.) From this, appellant contends the juvenile court misapplied the law. According to appellant, the court placed too much weight and emphasis on its belief he (appellant) knew his behavior was wrong, and he was aware of the risks and consequences.
We reject appellant's assertions. This record does not reasonably suggest that the juvenile court misunderstood the law. The court clearly and accurately expressed the criteria it was to consider. The court was permitted to give weight to any relevant factor. (See § 707, subd. (a)(3)(A)(ii).) It is apparent that the court considered "the whole picture" surrounding appellant's conduct. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 683.) The totality of the circumstances conclusively supports the court's finding that appellant exhibited criminal sophistication. Appellant repeatedly committed lewd and lascivious acts with the 11-year-old victim, culminating in multiple acts of vaginal intercourse. He was six years older than the victim. Appellant kept his illicit conduct secret from the adults who resided there. We do not discern an abuse of discretion when the court ruled that this criterion weighed in favor of transferring appellant to adult court.
2. The second criterion.
The second criterion which the juvenile court examined was whether appellant could be "rehabilitated prior to the expiration of the juvenile court's jurisdiction." (See § 707, subd. (a)(3)(B)(i).)
The focus of this second criteria is whether there is enough time to rehabilitate a minor while the minor is still eligible to remain under the jurisdiction of the juvenile court. (In re Miguel R. (2024) 100 Cal.App.5th 152, 166; J.N. v. Superior Court, supra, 23 Cal.App.5th 706, 721.) When evaluating this criterion, the court was permitted to give weight to any relevant factor, including, but not limited to, appellant's "potential to grow and mature." (§ 707, subd. (a)(3)(B)(ii).) When rendering its ruling, the court was aware of these statutory guidelines.
a. The court's findings.
For this second criterion, the juvenile court made the following relevant findings.
At the time of the transfer hearing, appellant was 30 years old. The court stated that he no longer fell under the jurisdiction of the juvenile court because he was past the age limit of 25 years. However, despite being older than 25, the juvenile court noted it could retain jurisdiction over appellant for another two years.
The court concluded that, given his age, it appeared "unlikely" a secure youth treatment facility could be located to house appellant. The local secure treatment facility was not equipped to provide juvenile sex offender treatment for a 30-year-old man. Chavez, the probation officer, had attempted to locate possible programs for appellant, but she had been unsuccessful. Chavez was not aware of any rehabilitation that could be offered to appellant while under the jurisdiction of the juvenile court.
According to the court, important information was lacking because appellant had fled from California in 2011. Appellant moved to Mexico and he fathered three additional children. He returned to California after an absence of 11 years. The court noted that it appeared appellant had been focused on his family. However, the court was concerned that, because appellant had been in Mexico for 11 years, it was difficult to know if his representations in this regard were accurate. The court found that many of appellant's statements to law enforcement and to Butler "were self-serving."
Since his arrest in 2022, appellant had no history of custodial misbehavior.
The court stated its belief that appellant could ultimately be rehabilitated. However, it was difficult to find information suggesting appellant was remorseful for his actions. Instead, it appeared to the court that appellant was remorseful because he had been arrested and he could not see his children. According to the court, appellant did not express remorse for the victim.
The court believed appellant placed blame on the 11-year-old victim. He had contended that she had initiated the sex, and he had fallen into "her game." Appellant believed the victim "came on" to him and he was "weak."
According to the court, the evidence suggested that appellant had not taken any responsibility for his actions. Appellant continued to blame the 11-year-old victim for seducing him into multiple sexual acts when he was nearly 18 years old. The court believed this suggested that appellant had "a lot of work to do and a long way to go in rehabilitation."
The court discounted some of the findings from Butler. In part, the court was concerned that Butler gave credence to appellant's statements that the victim was the aggressor, and it was the victim who had approached him sexually.
Finally, the court was concerned that Butler had been unaware whether appellant met the criteria for pedophilic disorder. The court noted that this issue could impact the ability to rehabilitate appellant within the two years of juvenile jurisdiction. The court stated it "will never know" the answer to this question.
Based on the totality of circumstances, the court ruled that this factor weighed in favor of transferring appellant to adult court.
b. Appellant's arguments.
Appellant asserts that the juvenile court abused its discretion regarding this criterion. He contends the court misunderstood the law and its findings were unsupported by substantial evidence.
Appellant raises numerous concerns. According to appellant, the juvenile court failed to hold the prosecutor to its burden of proof. Appellant argues the juvenile court's findings were, at times, based on an absence of information regarding what programs were available for him and an absence of information regarding whether appellant could be diagnosed with pedophilic disorder. Appellant maintains that the prosecutor failed to produce evidence establishing he could not be rehabilitated prior to the expiration of the juvenile court's jurisdiction.
In a footnote, appellant contends that the juvenile court was unwilling to entertain the possibility that the 11-year-old victim was the sexual aggressor in this situation. According to appellant, it is not inherently unreasonable to suggest an 11-year-old might exhibit sexual behaviors. As such, appellant contends that the court's "blind spot was incompatible with the requirement of a fair hearing."
Appellant argues that Chavez's conclusions lack any evidentiary value because they were unsupported. According to appellant, the prosecution failed to introduce evidence regarding the efforts necessary to rehabilitate him, and no evidence was introduced as to why available programs were unlikely to result in his rehabilitation in the time allotted.
Finally, appellant asserts the juvenile court failed to account for his conduct after the alleged incidents. According to appellant, he avoided additional contact with law enforcement and he was focused on his family, but the court rejected those issues as being appellant's "self-serving" statements. Appellant contends the court had evidence which supported amenability, but the court rejected such evidence and based its decision on the absence of evidence, which was improper.
We reject appellant's various arguments. Substantial evidence supports the court's findings.
Appellant was past the age limit of 25 years to fall under the jurisdiction of the juvenile court. (See § 607, subds. (a)-(c).) Given his age, the maximum juvenile jurisdiction that the court could exercise over appellant was an additional two years. (See § 607, subd. (d).)
Appellant's expert, Butler, testified that DJJ was no longer accepting youth or adults. Kings County was starting to create a replacement for DJJ. Given appellant's age, Butler was not aware of any specific program available to appellant in Kings County.
Likewise, Chavez made it clear that, based on his age, no juvenile services were available for appellant. Chavez believed that, based on his past actions, appellant had avoided juvenile services which could have been provided to him.
We reject appellant's position that Chavez's testimony does not represent substantial evidence. Chavez explained her background as a probation officer. She explained the steps she took to locate a possible program for appellant. She was "well versed" on what services could be offered to him. Chavez testified that, given appellant's age, this was a "unique" situation. She made it clear that the juvenile department did not have any services it could provide to appellant.
Chavez's opinions were based on her special knowledge and experience. (Evid. Code, § 801, subds. (a) &(b).) As such, we disagree with appellant that Chavez's testimony lacked evidentiary value or that it must be rejected on appeal.
This record amply supports the juvenile court's findings. In 2022, appellant made statements to his own expert, Butler, which conclusively show he blames the 11-year-old victim for the sexual contact. Appellant claimed that the victim "came on" to him and he had been "weak." He repeatedly stated that the victim had initiated the sex. He contended that he had fallen "into her game" and she had seduced him. Based on appellant's statements, the juvenile court was justified in concluding that appellant did not show any remorse for his conduct and he had "a long way to go in rehabilitation."
The prosecution established by clear and convincing evidence that the County did not have any juvenile rehabilitative services available to appellant, who was 30 years old at the time of the hearing. Chavez's testimony conclusively demonstrated that the juvenile department attempted to find suitable programs for appellant, but none existed. Appellant's own expert, Butler, acknowledged that, given appellant's age, she was unaware of any specific juvenile program available to appellant in Kings County.
Based on this record, the juvenile court did not abuse its discretion in ruling that this criterion weighed in favor of transferring appellant to adult court. Substantial evidence supported the court's findings that appellant could not be rehabilitated before it lost jurisdiction over him. The court's decision was neither arbitrary nor capricious.
3. The third criterion.
The third criterion which the juvenile court examined was appellant's "previous delinquent history." (See § 707, subd. (a)(3)(C)(i).)
When evaluating this criterion, the court was permitted to give weight to any relevant factor, including, but not limited to, the seriousness of appellant's previous delinquent history. The court was also directed to consider the effect of appellant's family and community environment and childhood trauma on his previous delinquent behavior. (§ 707, subd. (a)(3)(C)(ii).) When rendering its ruling, the court was aware of these guidelines.
a. The court's findings.
For this third criterion, the juvenile court made the following relevant findings.
Because appellant lived in Mexico prior to the alleged crimes, there were no documented reports of his prior delinquent history. Appellant claimed he never had problems in school either in Mexico or the United States. However, his school records from Hanford High School show he was suspended for three days for "a mutual verbal altercation" when appellant challenged another student to a fight. The court stated that this called into question appellant's credibility.
Appellant admitted he was a member of a "street gang" in Mexico. He has tattoos on his face, neck and body, including the number 13 on his stomach in Roman numerals. Appellant admitted the number 13 on his stomach represents "southerner."
Butler categorized appellant's gang as a "neighborhood" gang. In contrast, Chavez believed appellant had a "serious gang affiliation with organized gang members." According to Chavez, appellant's gang would not only take care of its "subset, but anybody who was affiliated with the number 13."
The court found that the Mexican cartels have been part of appellant's life, at least peripherally. According to the court, appellant had "at the very least an association with individuals involved in crime." However, the prosecution had no information related to appellant's prior delinquent behavior other than the records from Hanford High School.
The court noted that, although it was not relevant to this criterion, appellant had been convicted of violating Penal Code section 148, subdivision (a), for his behavior during his arrest on July 5, 2022.
Based on the totality of the circumstances, the court found there was insufficient evidence to find that this factor weighed in favor of transferring appellant to adult court. The juvenile court found that this was a "neutral factor" that weighed neither for nor against transfer.
b. Appellant's arguments.
Appellant asserts that the juvenile court abused its discretion regarding this criterion. He contends the court misunderstood the law and its findings were unsupported by substantial evidence.
According to appellant, the court failed to hold the prosecutor to its burden of proof. Because he had no prior delinquent history, appellant contends the juvenile court was required to find that this criterion weighed against transfer to adult court, and it was not merely a neutral criterion.
Appellant argues that substantial evidence did not support the juvenile court's finding of neutrality. He contends that the court's finding of a "street gang in Mexico" was unsupported by the record. He asserts that Chavez was unqualified to opine about gangs in Mexico, and nothing showed that appellant was associated with the MS 13 gang. Appellant maintains that Chavez's opinion was fundamentally inadequate to support the juvenile court's finding for this criterion because she lacked any relevant training or experience on the nature or activities of appellant's "neighborhood group" in that particular area in Mexico.
According to appellant, the absence of any previous delinquent behavior should have weighed against transfer, and the court should have found appellant was amenable to treatment in the juvenile court. We disagree.
In examining a minor's prior delinquent history, a juvenile court may consider the minor's prior behavior, including any "behavior documented in his school records." (D.C. v. Superior Court (2021) 71 Cal.App.5th 441, 456.) A juvenile court may rule that a particular criterion weighs neither for nor against transfer of the minor to adult court. (C.S. v. Superior Court (2018) 29 Cal.App.5th 1009, 1029.) A juvenile court is not required "to give equal weight" to each criterion and it may find "that one criterion outweighed the other criteria." (Id. at p. 1035.)
Here, substantial evidence supports the juvenile court's findings. Appellant's high school records show he was suspended for three days after challenging another student to fight. In addition, appellant admitted to Butler that, before he first came to the United States, he had belonged to a Mexican gang, known as "BB." Appellant admitted to Butler that his gang "would fight" with other youths "if they came into his neighborhood."
We reject appellant's contention that the juvenile court was required to find that this criterion weighed in favor of amenability. To the contrary, this record amply demonstrates that appellant had prior delinquent behavior before he committed these charged crimes. The juvenile court was entitled to give such evidence whatever weight it deemed sufficient. As such, we discern no abuse of discretion when the court ruled that this criterion was neutral regarding whether appellant should be transferred to adult court. Appellant's arguments to the contrary are unpersuasive.
Because substantial evidence establishes appellant's prior delinquent behavior, we need not address appellant's arguments that Chavez was not qualified to opine about appellant's gang.
4. The fourth criterion.
The fourth criterion which the juvenile court examined was the "success of previous attempts by the juvenile court to rehabilitate" appellant. (See § 707, subd. (a)(3)(D)(i).)
When evaluating this criterion, the court was permitted to give weight to any relevant factor, including, but not limited to, "the adequacy of the services previously provided to address [appellant's] needs." (§ 707, subd. (a)(3)(D)(ii).) When rendering its ruling, the court was aware of these guidelines.
a. The court's findings.
For this fourth criterion, the juvenile court made the following relevant findings.
The court noted there have been no previous attempts by the juvenile court to rehabilitate appellant. However, the court found that, because appellant had fled to Mexico, the juvenile court was never afforded an opportunity to rehabilitate appellant at the time his criminal offenses were discovered. The court stated that appellant fled when he was an adult, and his decision prevented any rehabilitation.
After considering the totality of the circumstances, the court ruled that this factor weighed in favor of transferring appellant to adult court.
b. Appellant's arguments.
Appellant contends the juvenile court abused its discretion because it misunderstood the law and its finding was unsupported by substantial evidence. Appellant asserts the prosecution failed to prove this criterion because there is no evidence of any prior attempts to rehabilitate him. According to appellant, the juvenile court erred because it relied on an absence of evidence. Appellant maintains that the court shifted the burden of proof to him and denied him due process. We reject appellant's various arguments.
In arguing the juvenile court erred under this criterion, appellant maintains that the court, the prosecutor and the probation officer exhibited a bias against Mexico. According to appellant, it is apparent that the prosecutor failed to attempt to obtain information from Mexican officials about appellant's life after these alleged incidents occurred. As a result, appellant contends that it was improper for the court to suggest that missing information was somehow attributable to Mexico. Appellant raises this same argument in his claim under the RJA, which we address later in this opinion.
The juvenile court acted well within its discretion when it considered and weighed the impact of appellant's flight. Appellant knew the victim was pregnant and he wanted to avoid arrest. He remained in Mexico for about 11 years.
Although appellant has no history of prior juvenile rehabilitation attempts, his flight from California was relevant to this issue. The court was justified in considering this fact. (See § 707, subd. (a)(3)(D)(ii) [court may consider "any relevant factor" in reviewing this criterion].) We discern no abuse of discretion when the court weighed this factor in favor of transferring appellant to adult court.
5. The fifth criterion.
The fifth criterion which the juvenile court examined were the "circumstances and gravity" of the offenses which appellant allegedly committed. (See § 707, subd. (a)(3)(E)(i).)
When evaluating this criterion, the court was permitted to give weight to any relevant factor, including, but not limited to, appellant's actual behavior, his mental state, his degree of involvement in the crimes, the level of harm he actually caused, and his "mental and emotional development." (§ 707, subd. (a)(3)(E)(ii).) When rendering its ruling, the court was aware of these guidelines.
a. The court's findings.
For this fifth criterion, the court made the following relevant findings.
Appellant had sexual intercourse with his 11-year-old niece, who became pregnant. Appellant admitted having sex with the victim five or six times. The victim recalled having sex on four separate occasions.
The sexual abuse started with the fondling of the victim's breasts and vagina outside her clothing. Appellant proceeded to touching her under the clothing. Appellant penetrated the victim's vagina with his fingers on five separate occasions. The victim was five and a half months pregnant when these crimes were discovered.
According to the court, appellant's crimes occurred 12 years ago so it was difficult to evaluate his mental state or emotional development at the time these incidents occurred.
Appellant attended school in Mexico and reported he had good grades. He was a member of a "street gang" while in Mexico.
The court read into the record the victim's impact statement. The victim's statement demonstrated she had suffered lasting emotional harm due to appellant's conduct.
Considering the totality of the circumstances, the court ruled that this factor weighed in favor of transferring appellant to adult court.
b. Appellant's arguments.
Appellant argues the juvenile court abused its discretion because it misunderstood the law and its findings were unsupported by substantial evidence. According to appellant, the court did not require the prosecutor to meet its burden of proof but, instead, it relied on an absence of evidence.
Appellant maintains that the court only focused on the "gravity" of the offenses, and it failed to examine the "circumstances" surrounding them. According to appellant, other circumstances tended to lessen the "magnitude" of what he allegedly did. He contends that every transferrable offense involves a serious crime. He asserts that the circumstances and gravity of his alleged offenses are indistinguishable from other sexual assaults committed by minors.
Appellant argues that the juvenile court simply focused on the "nature and harm" of his alleged offenses. He asserts that the court was required to adopt a "more expansive view" of the circumstances.
We reject appellant's numerous contentions. In rendering its findings for this criterion, it is apparent the court considered both the "gravity" of these crimes, as well as the "circumstances" surrounding them. (See § 707, subd. (a)(3)(E)(i).) The court noted the victim's extremely young age. The court commented on the repeated behavior in which appellant allegedly engaged. The court found that appellant did not initiate the sexual intercourse right away but, instead, he undertook a series of lewd acts with the victim which culminated in repeated vaginal intercourse.
Appellant's actions left the victim pregnant. She was forced to deal with a baby while she herself was a child. Appellant's alleged crimes inflicted lasting and permanent harm on the victim.
Substantial evidence supports the juvenile court's findings. We discern no abuse of discretion when the court ruled the circumstances and gravity of the alleged crimes weighed in favor of transferring appellant to adult court.
Finally, appellant contends the juvenile court could have accepted appellant's and Butler's version of facts regarding the circumstances surrounding the alleged incidents with the victim. Appellant argues the court rejected Butler's testimony as a "product" of the court's "frustration" with how Butler viewed the evidence. According to appellant, the court improperly rejected evidence that tended to shed light on his alleged mental state at the time these offenses occurred. Appellant asserts that the court failed to understand the law and he was denied due process. We disagree.
As the trier of fact, the juvenile court had the exclusive role to judge witness credibility. (See In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372 ["it is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends"].) The court was permitted to reject Butler's testimony, including a belief the 11-year-old victim was the sexual aggressor in this situation. We will not second-guess the court's exercise of its discretionary authority in this regard.
In rendering its ruling, it is clear the court understood the statutory requirements it was required to follow. As noted above, the court examined both the "circumstances" and the "gravity" of these alleged offenses. This record does not support appellant's claim that the court misunderstood the law, and we reject appellant's suggestion that his hearing was unfair or that his due process rights were denied. To the contrary, this record shows that the transfer hearing met "the essentials of due process and fair treatment." (Kent v. United States, supra, 383 U.S. 541, 562.)
D. Under the totality of the circumstances, the juvenile court did not abuse its discretion.
The juvenile court ruled that appellant was not amenable to rehabilitation while under the jurisdiction of the juvenile court. (§ 707, subd. (a)(3).) After reviewing the entire record, we find no abuse of discretion.
Given his age, the juvenile court had a maximum of two years to exercise jurisdiction over appellant. (See § 607, subd. (d).) The delay in possible juvenile rehabilitation occurred because appellant fled to Mexico in 2011 about two days after his crimes were discovered by law enforcement. When he fled, appellant was no longer a juvenile. He remained in Mexico for a little over a decade. After being arrested, appellant did not express remorse for his conduct, and he blamed the 11-year-old victim for the sex acts that had occurred. The circumstances and gravity of appellant's alleged criminal behavior amply support the juvenile court's findings. The prosecutor established by clear and convincing evidence that the juvenile probation department did not have a facility or program which could accept appellant.
Substantial evidence supports the juvenile court's ruling that appellant was not amenable to rehabilitation under the jurisdiction of the juvenile court. The court's application of the law to the facts was not arbitrary and capricious. Accordingly, an abuse of discretion is not present. (See J.N. v. Superior Court, supra, 23 Cal.App.5th at p. 714.) Thus, appellant's claim lacks merit, and we will affirm the order transferring appellant to adult court.
Because the juvenile court did not abuse its discretion, we do not reach appellant's various arguments regarding alleged prejudice. Likewise, because this claim fails on its merits, we do not reach respondent's assertion that appellant forfeited his claim that the juvenile court misunderstood and misapplied the law. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [an appellate court has discretion to review a claim even if it was not preserved for review].)
II. Cumulative Error did not Occur.
Appellant raises a claim of cumulative error. He asserts that, based on this record, "no juvenile court could reasonably find him unamenable to rehabilitation under its jurisdiction." He argues that, even if no single error warrants reversal, the cumulative effect of the alleged errors cannot be considered harmless. We disagree.
"Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)
We reject appellant's claim of cumulative error. We have denied all of his individual claims. (See People v. Bradford (1997) 14 Cal.4th 1005, 1057 [cumulative prejudice argument rejected because each individual contention lacked merit or did not result in prejudice].) Taking all of appellant's claims into account, we are satisfied that he received a fair hearing.
III. Appellant has Forfeited his Claim Under the RJA; his Claim also Fails on its Merits.
Appellant contends the prosecutor, probation officer, and the juvenile court violated the RJA. According to appellant, the RJA was violated because references were made during his transfer hearing about the "absence of information from Mexico." According to appellant, these comments "implicitly portrayed" an idea that documents from Mexico are "difficult or impossible to obtain." He maintains that the prosecutor, probation officer and the juvenile court exhibited implicit bias based on his national origin in violation of Penal Code section 745, subdivision (a)(1). He asks this court to reverse the juvenile court's transfer order and direct the superior court to dismiss his now-pending criminal charges. He seeks a remand for further proceedings to occur "exclusively in the juvenile court."
A. An overview of the RJA.
The RJA became effective on January 1, 2021. (Pen. Code, § 745, added by Stats. 2020, ch. 317, § 3.5.) The Legislature enacted the RJA with the intent "to eliminate racial bias from California's criminal justice system" and "to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing." (Stats. 2020, ch. 317, § 2(i); see Young v. Superior Court (2022) 79 Cal.App.5th 138, 149-150.) The goal of the RJA is "to provide remedies that will eliminate racially discriminatory practices in the criminal justice system, in addition to intentional discrimination." (Stats. 2020, ch. 317, § 2(j).)
The RJA provides: "The state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." (Pen. Code, § 745, subd. (a).) The RJA includes four categories of conduct, any one of which, if proven by a preponderance of the evidence, establishes a violation of the RJA. (Pen. Code, § 745, subd. (a)(1)-(4).) Pertinent to appellant's claims, it is a violation of the RJA if "[t]he judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin." (Pen. Code, § 745, subd. (a)(1).)
The RJA applies to "adjudications and dispositions in the juvenile delinquency system," including "adjudications to transfer a juvenile case to adult court." (Pen. Code, § 745, subd. (f).)
B. Appellant's arguments.
To establish a violation of the RJA, appellant raises numerous arguments. He contends that the prosecutor, the probation officer (Chavez), and the juvenile court all exhibited implicit bias against Mexico. In turn, he asserts that this showed implicit bias against his national origin.
Appellant notes that the prosecutor alerted the court that the People did not possess information regarding appellant's criminal record, or lack thereof, outside the United States.
Regarding Chavez, appellant observes that she indicated she had no knowledge of appellant's scholastic performance while he resided in Mexico. Appellant further contends that Chavez was not qualified as a gang expert, and it was never established that she had any experience with either criminal street gangs in the United States or gangs in Mexico.
Finally, appellant notes that the juvenile court complained about a lack of evidence available regarding appellant's life from the time he fled California in 2011 up to the time of his arrest. The court expressed doubt that it could rely on appellant's own statements about his activity during that time period. Likewise, the court stated that appellant was never afforded an opportunity for the juvenile system to rehabilitate him because "he fled to Mexico to evade responsibility."
According to appellant, the prosecutor, the probation officer and the juvenile court all displayed an "attitude" that basic information which typically would be introduced at a transfer hearing "was categorically unavailable" because it was in Mexico. Appellant argues that his return to Mexico was treated as if he went "outside the known universe, into a realm unsusceptible to scrutiny."
Appellant cites sources to demonstrate that, in popular culture, negative views and stereotypes exist about Latin America in general, and Mexico in particular. These stereotypes are pervasive and repeated. He cites sources to establish that Mexico is a very large country, which is based on a federal republic. It has political subdivisions and administrative agencies. He cites sources to show that fugitives from Mexico may be extradited from Mexico. The State of California has a unit to help facilitate interactions with the government in Mexico.
Appellant argues that the prosecutor made no effort to seek records about him from Mexico to present as evidence at the transfer hearing. Appellant contends that, after the prosecutor made no effort to obtain records from Mexico, a false narrative was used at the transfer hearing that was targeted at his national origin. He asserts that this false narrative was a "classic example" of stigmatizing another group of people, which he calls" 'othering.'" He maintains that the record from the transfer hearing emphasized his status "as a foreign interloper" and Mexico was "implicitly cast" as his "hiding place." He argues that Mexico was treated as being "inherently inferior to the United States" and it was implied that appellant used Mexico to shield himself from criminal responsibility. He contends that the comments from the prosecutor, the probation officer and the court show they viewed Mexico "as a lawless wasteland, devoid of infrastructure, governmental systems, or information repositories, from whence no information could reasonably be extracted."
Finally, appellant argues that Chavez made comments about MS 13, which the judge accepted as true. According to appellant, this "further cemented" his (appellant's) "implicit role as a criminal invader." He contends that the references to MS 13 tapped into a" 'moral'" panic that exists in this country about the rise of that particular gang. However, he asserts that no evidence was introduced at the transfer hearing connecting his gang, BB, with MS 13. He maintains that the juvenile court viewed everything through a lens of implicit bias, and the transfer order must be reversed.
We reject appellant's numerous arguments. He has forfeited this claim. In any event, it also fails on its merits.
C. Appellant has forfeited his RJA claim.
Respondent asserts that appellant has forfeited his RJA claim because he failed to raise it below. We agree.
The RJA was effective January 1, 2021. At that time, defendants could seek relief by filing a motion in the trial court or, if judgment had been imposed, by filing a petition for writ of habeas corpus or a motion under Penal Code section 1473.7, in a court of competent jurisdiction. (People v. Lashon (2024) 98 Cal.App.5th 804, 810 (Lashon).)
From its inception in 2021, the RJA applied "to adjudications and dispositions in the juvenile delinquency system." (Former Pen. Code, § 745, subd. (f).) Effective on January 1, 2023, about two and a half months before this transfer hearing occurred, the RJA was amended to apply to "adjudications to transfer a juvenile case to adult court." (Former Pen. Code, § 745, subd. (f).)
When enacted, Penal Code section 745 applied only prospectively to cases in which judgment had not been entered prior to January 1, 2021. (Lashon, supra, 98 Cal.App.5th at p. 810.) Therefore, in all eligible cases, the defendant had an opportunity to raise an RJA claim in the trial court. (Ibid.)
Effective January 1, 2023, Penal Code section 745 was amended to provide for retroactive application to judgments that were not final, and a timeline was created for judgments entered before January 1, 2021. (Lashon, supra, 98 Cal.App.5th at p. 810.)
After retroactive application became possible, Penal Code section 745 was modified by Assembly Bill No. 1118 (Stats. 2023, ch. 464). This amendment became effective January 1, 2024. (Lashon, supra, 98 Cal.App.5th at p. 810.) Penal Code section 745 now provides that postjudgment RJA claims based on the trial record may be raised on direct appeal from the conviction or sentence. (Pen. Code, § 745, subd. (b).)
In Lashon, Division Three of the First Appellate District held that an RJA claim may be deemed forfeited on direct appeal if such a claim could have been raised below but it was not asserted in the lower court when the defendant had a chance to do so. (Lashon, supra, 98 Cal.App.5th at p. 813.) Lashon examined the statutory language of the RJA, and its legislative history. It saw no evidence of a legislative intent "to strip the courts of their discretionary authority to determine whether a [R]A] claim is reviewable on direct appeal where the claim could have been but was not presented in the trial court." (Lashon, supra, 98 Cal.App.5th at pp. 814-815.)
The California Supreme Court denied review of the Lashon opinion.
Appellant asks us to reject the holding from Lashon. He claims Lashon must not have interpreted the statute appropriately. We disagree with appellant and we decline to reject the holding from Lashon.
The RJA directs a defendant to file a motion alleging a violation of the RJA "as soon as practicable upon the defendant learning of the alleged violation. A motion that is not timely may be deemed waived, in the discretion of the court." (Pen. Code, § 745, subd. (c).) The RJA applies to adjudications made in the juvenile courts, including orders transferring a juvenile to adult court. (Id., subd. (f).)
The RJA was in existence in 2023 when this contested transfer hearing occurred. As such, appellant was obligated to raise an alleged RJA violation as soon as it was practicable upon learning of the alleged violation. (Pen. Code, § 745, subd. (c).) Appellant's failure to raise this claim below results in its forfeiture on appeal. (Lashon, supra, 98 Cal.App.5th at p. 813.)
We also conclude that, even if this claim is not forfeited, it nevertheless fails on its merits.
D. This claim fails on its merits.
At the prima facie stage, appellant bears the burden to show there is "a substantial likelihood" the RJA was violated. "For purposes of this section, a 'substantial likelihood' requires more than a mere possibility, but less than a standard of more likely than not." (Pen. Code, § 745, subd. (h)(2).)
Appellant does not meet his burden to establish that a violation of the RJA occurred. This record does not demonstrate or even reasonably suggest that either the prosecutor, the probation officer and/or the juvenile court "exhibited bias or animus towards [appellant] because of [his] race, ethnicity, or national origin." (Pen. Code, § 745, subd. (a)(1).)
Appellant fled from California to avoid arrest. It was reasonable for the prosecutor, the probation officer and the court to note appellant's flight, which was directly relevant to the issue of whether he could be subsequently rehabilitated in the juvenile system as a 30-year-old man. It was likewise relevant for the parties and the court to comment on the gap in information which existed following appellant's flight from this jurisdiction. Although the prosecutor may have had a theoretical ability to scour Mexico for information about appellant, the People's failure to do so does not demonstrate implicit bias against Mexico. It also does not show implicit bias against appellant regarding his race, ethnicity or national origin. We reject appellant's arguments to the contrary.
Based on this record, appellant does not demonstrate a violation of the RJA. As such, we deny his request to reverse the juvenile court's transfer order on that basis. We likewise deny his request to remand this matter for a new hearing under the RJA. This claim is without merit.
DISPOSITION
The juvenile court's transfer order is affirmed.
WE CONCUR: DETJEN, J. PENA, J.