Assembly Bill (AB) 2361 & SB 545 Applied, Juveniles

In 2015, when J.M. was 17 years old, he broke into the home of a 72-year old woman in Sacramento County, assaulted her with the intent to commit rape, and stole about $800 in cash.  

Although J.M. was a minor at the time of his crimes, the People elected to file charges against J.M. directly in adult court, as permitted under the former Penal Code § 707.

After a jury trial, J.M. was found guilty of assault with intent to commit rape during the commission of a burglary (Penal Code § 220(b)), attempted rape (Penal Code §§ 664 / 261(a)(2)), and first degree robbery (Penal Code § 211).  The jury also found true an elder abuse enhancement allegation under Penal Code § 667.9(a).  

The judge then sentenced J.M. to 14 years to life, consisting of an indeterminate term of seven years to life for the robbery (upper term of six years) and the elderly victim enhancement (one year).  The court imposed, but stayed, an upper term of four years for the attempted rape offense.

In November 2016, shortly after J.M.’s conviction, the electorate passed Proposition 57, which eliminated direct charging of juveniles in adult court. People v. Lara (2018) 4 Cal. 5th 299, 304-305.  Under Prop 57, minors could still be tried in criminal court (adult court), but only after a juvenile court judge conducts a “transfer hearing” to consider various factors such as the minor’s degree of criminal sophistication and previous delinquent history.  Lara, supra, at 305. 

On appeal from his conviction, J.M. argued that the provisions of Prop 57 applied retroactively to his case under In re Estrada (1965) 63 Cal. 2d 740.  He argued to the Third Appellate District Court in Sacramento that it should reverse the judgment and remand the matter to the criminal court for a transfer hearing.  

While J.M.’s appeal was pending, the California Supreme Court held that Prop 57 is an ameliorative change in the law that applies retroactively to all defendants who judgments are not yet final.  Lara, supra, at pp. 304-305.  Significantly, the court ruled that although Prop 57 did not reduce punishment for a crime, Prop 57’s inference of retroactivity applied because it ameliorated the possible punishment for a class of persons, namely juveniles, by providing the opportunity to remain in the juvenile court system.

On remand, the superior court (sitting as the juvenile court) held a transfer hearing that spanned multiple days, ultimately ordering the case transferred to superior court and reinstating the prior criminal judgment.

At the time, there was no statutory right to appeal the transfer order; appellate review was limited to extraordinary writ.  People v. Superior Court (S.L.) (2019) 40 Cal. App. 5th 114, 120.  J.M. was advised of this fact, but his counsel filed an appeal nonetheless, which was dismissed.

J.M. then filed a petition for a writ of habeas corpus, contending his attorney provided ineffective assistance of counsel by filing an appeal instead of a writ petition to contest the transfer order.  

In June 2023, the appellate court granted the habeas petition, noting that Assembly Bill 624 made  transfer orders appealable.  The court did so, then dismissed the appeal.

J.M. then appealed again in light of recent amendments to Welfare & Institutions Code § 707 enacted by Assembly Bill (AB) 2361 and Senate Bill (SB) 545.  

Assembly Bill 2361 amended § 707 to include the following language: “In order to find that the minor should be transferred to a court of criminal jurisdiction, the court shall find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.  In making this decision, the court shall consider the criteria specified in subparagraphs (A) to (E), inclusive.  If the court orders a transfer of jurisdiction, the court shall recite the basis for its decision in an order . . . which shall include the reasons supporting the court’s finding that the minor is not amenable to rehabilitation. . .”

“This amendment changed the procedure for ordering a juvenile transfer in three material ways, by (1) raising the prosecution’s burden of proof, (2) requiring a new specific finding regarding amenability to rehabilitation, and (3) requiring the court to state the reasons supporting a finding that the minor is not amenable to rehabilitation.” In re S. S. (2023) 89 Cal.App.5th at p. 1284.

J.M. also argued that the transfer order had to be reconsidered in light of a second new law, Senate Bill 545.   Effective January 1, 2024, SB 545 further amended section 707, subdivisions (a)(3)(A) through (E) to require that a judge give weight to factors that previously were discretionary and to specify additional factors that must be considered in determining whether the prosecution has carried its burden of proof to transfer a juvenile to criminal court. Specifically, SB 545 amended the factors the court must weigh in evaluating a minor’s criminal sophistication to include “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.”  It also amended the factors the court must weigh in evaluating the circumstances and gravity of the offense to include “evidence offered that indicates that the person against whom the minor is accused of committing an offense trafficked, sexually abused, or sexually battered the minor.”  

J.M. argued the recent amendments to section 707, subdivision (a)(3) are ameliorative changes that apply retroactively to him under Estrada, supra, 63 Cal.2d 740, requiring remand for a new transfer / amenability hearing.  The People conceded and the appellate court thus ordered that J.M.’s matter be remanded.

We present this summary to inform the reader of AB 2361 and SB 545 and to exemplify the legal tenacity of J.M., which we think is commendable.