Proposition 57: Overview of the New Transfer Hearing Process

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1 Proposition 57: Overview of the New Transfer Hearing Process CPDA 2017 New Statutes Seminar JONATHAN LABA CONTRA COSTA COUNTY PUBLIC DEFENDER'S OFFICE MARCH 4, 2017

2 Discussion Topics Passage of Proposition 57 / Intersection with Cases and Statutes Recognizing the Differences Between Youth and Adult Offenders Overview of Proposition 57 New Transfer Hearing Process Resources for Litigating Transfer Hearings

3 The Passage of Proposition 57 Ballot measure initially submitted in December 2015 as the Justice and Rehabilitation Act Resubmitted in January 2016 as the Public Safety and Rehabilitation Act of 2016, with Governor Brown s support; expanded adult provisions CDAA filed writ to compel the AG to reject the amendments (Brown v. Superior Court (2016) 63 Cal.4 th 335) Passed overwhelmingly at the November 8, 2016 General Election with 64.5% of the vote

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5 Components of Prop 57 Three principal components of the initiative: 1. Elimination of direct filing; creation of new transfer hearing process 2. Early parole consideration for nonviolent offenders 3. Enhanced conduct credits for state prisoners

6 Legal Background to Prop 57: Young Offenders are Different The U.S. Supreme Court repeatedly has recognized over the past decade the fundamental differences between youth and adults: Roper v. Simmons (2005) 543 U.S. 551: death penalty for juveniles violates the Eighth Amendment Graham v. Florida (2010) 560 U.S. 48: LWOP for juveniles violates the 8A in nonhomicide cases J.D.B. v. North Carolina (2011) 564 U.S. 261: A child s age is relevant to whether in custody for Miranda purposes Miller v. Alabama (2012) 567 U.S., 132 S.Ct. 2455: Mandatory LWOP for juveniles unconstitutional, even in homicide cases Montgomery v. Louisiana (2016) 577 U.S., 136 S.Ct. 718: The right to a Miller resentencing is retroactive; all juvenile offenders serving LWOP are entitled to a Miller hearing, even if appeal is concluded

7 Senate Bill 260: Youth Offender Parole Effective January 1, 2014 Applies to eligible juvenile offenders convicted in adult court following a fitness hearing or direct file Affords eligible inmates a Youth Offender Parole Hearing (YOPH) A YOPH is a hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was under 18 years of age at the time of his or her controlling offense (PC 3051(a)(1)) Purpose of the YOPH is to provide for a meaningful opportunity to obtain release (PC 3051(e))

8 Theme: Young Offenders are Different Lack of maturity Underdeveloped sense of responsibility Impetuous actions and decisions More vulnerable to peer pressure Less able to escape negative influences Children have unique capacity to grow and mature Signature qualities of youth are transient; character not as well formed as that of an adult Far greater chance that character failings can be reformed; uniquely able to be rehabilitated THEME: YOUTH OFFENDERS ARE CATEGORICALLY LESS CULPABLE THAN ADULTS!

9 SB 260 is a Statutory Expression of these Principles The Legislature finds and declares that: Only a relatively small proportion of adolescents who engage in illegal activity develop entrenched patterns of problem behavior. Developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds, including parts of the brain involved in behavior control. The Legislature recognizes that youthfulness both lessens a juvenile s moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society. These findings are uncodified but citeable.

10 SB 260: What It Does Affords a Youthful Offender Parole Hearing to eligible offenders Must provide for a meaningful opportunity to obtain release. (PC 3051(e)) Board of Parole Hearings must give great weight to the following (PC 4801(c)): The diminished culpability of juveniles as compared to adults The hallmark features of youth Any subsequent growth and increased maturity of the prisoner BPH commissioners have received specialized training re applying these criteria.

11 Timing of Youth Offender Parole Hearing The controlling offense (or longest term) determines the time for the first Youth Offender Parole Hearing. If serving a determinate term -- of ANY length -- eligible at beginning of 15th year of incarceration (From initial date of incarceration, not the time person entered prison) Does not include conduct credits If controlling offense is a life sentence < 25-life: 20th year If controlling offense is a life sentence that is >= 25-life: 25th year

12 Application to Adult Clients: Senate Bill 261 SB 261 effective January 1, 2016 Dramatic expansion of SB 260: Extends eligibility for YOPHs to offenders who were under age 23 at time of offense Criteria for parole at YOPH: Same as SB 260, including: Meaningful opportunity to obtain release Board of Parole hearings must give great weight to: The diminished culpability of juveniles as compared to adults The hallmark features of youth Any subsequent growth and increased maturity of the prisoner Eligibility / disqualifiers: Same as SB 260, except offender must be age 18, 19, 20, 21, or 22 at time of offense

13 Prop 57 Is Based on These Principles Purpose and Intent of Prop 57 is to: Protect and enhance public safety. Save money by reducing wasteful spending on prisons. Prevent federal courts from indiscriminately releasing prisoners. Stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles. Require a judge, not a prosecutor, to decide whether juveniles should be tried in adult court.

14 How Prop 57 Effectuates These Goals Eliminates prosecutors ability to direct file any juvenile in adult court Both mandatory and discretionary direct file eliminated Narrows (slightly) who is eligible for transfer to adult court Replaces fitness hearings with new transfer hearing process Eliminates all presumptions: no longer any presumptions in favor of fitness or unfitness for juvenile court Retains the existing five statutory criteria to determine whether to transfer to adult court

15 Elimination of Direct Filing Former law: Mandatory direct filing for special circumstances murder and One Strike sex offenses (former W&I 602(b)) Discretionary direct filing for: Minors 16 or older charged with W&I 707(b) offenses (former W&I 707(d)(1)) Minors 14 or older charged with life-top offense, charged with personal use of a firearm, or charged with 707(b) offense combined with gang enhancement, hate crime, elder crime, or previously found to have committed a 707(b) offense. (former W&I 707(d)(2)) Minors 16 or older with a prior sustained felony charged with a gang, elder or hate crime. (former W&I 707(d)(3))

16 Elimination of Direct Filing Under Proposition 57: NO direct filing, regardless of offense Eligible for transfer if: Client alleged to have committed a W&I 707(b) offense when 14 or older. Client alleged to have committed any felony when 16 or older. Cannot be transferred if only misdemeanor charges.

17 Transfer Criteria Pursuant to W&I 707(a)(2), in making its decision whether to transfer the youth to adult court, the court considers the five statutory criteria that existed prior to Proposition 57: (1) The degree of criminal sophistication exhibited by the minor. When evaluating this criterion, the juvenile court may give weight to any relevant factor, including, but not limited to, the minor's age, maturity, intellectual capacity, and physical, mental, and emotional health at the time of the alleged offense, the minor's impetuosity or failure to appreciate risks and consequences of criminal behavior, the effect of familial, adult, or peer pressure on the minor's actions, and the effect of the minor's family and community environment and childhood trauma on the minor's criminal sophistication. Welf & I C 707(a)(2)(A).

18 Transfer Criteria (2) Whether the minor can be rehabilitated before juvenile court jurisdiction expires. When evaluating this criterion, the juvenile court may give weight to any relevant factor, including, but not limited to, the minor's potential to grow and mature. Welf & I C 707(a)(2)(B).

19 Transfer Criteria (3) The minor s previous delinquent history. When evaluating this criterion, the juvenile court may give weight to any relevant factor, including, but not limited to, the seriousness of the minor's previous delinquent history and the effect of the minor's family and community environment and childhood trauma on the minor's previous delinquent behavior. Welf & I C 707(a)(2)(C).

20 Transfer Criteria (4) The success of previous attempts by the juvenile court to rehabilitate the minor. When evaluating this criterion, the juvenile court may give weight to any relevant factor, including, but not limited to, the adequacy of the services previously provided to address the minor's needs. Welf & I C 707(a)(2)(D).

21 Transfer Criteria (5) The circumstances and gravity of the offenses alleged to have been committed by the minor. When evaluating this criterion, the juvenile court may give weight to any relevant factor, including but not limited to, 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. Welf & I C 707(a)(2)(E).

22 Totality of the Circumstances Analysis Given the elimination of presumptions for or against transfer to adult court, the juvenile court now makes its decision by considering the five criteria and rendering a decision based on the totality of the circumstances. No longer need to establish amenability for juvenile court on all five criteria.

23 Burden and Standard of Proof Since the prosecution is the party seeking transfer, we argue that the prosecution bears the burdens of production and proof to establish that the minor should be transferred. (See Evid. Code, 500, 550.) The standard of proof remains the preponderance of the evidence. (Evid. Code, 115; Cal. Rules of Court, rule 5.770(a).)

24 Right to a Hearing on the Prima Facie Case? Prior to the passage of Proposition 57, minors presumed unfit for juvenile court were entitled to a hearing where the prosecution had to make a prima facie showing that the offense charged was a felony or an offense listed in W&I 707(b). Edsel P. v. Superior Court (1985) 165 Cal.App.3d 763 Cal. Rules of Court, rule 5.772(b) Since there are no longer any presumptions, the courts are likely to rule that a minor no longer has a right to an Edsel P. hearing. If unsuccessful in obtaining an Edsel P., can still ask for a contested detention hearing. (In re Dennis H. (1971) 19 Cal.App.3d 350.)

25 Recommended Approach to Handling Transfer Hearings Hearing likely to be the most consequential event in the life-span of your client s case [T]he certification of a juvenile offender to an adult court has been accurately characterized as the worst punishment the juvenile system is empowered to inflict. (Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 810.) The difference between incarceration at the Division of Juvenile Justice until age 23 vs. imprisonment for life or LWOP at CDCR. Prepare for the hearing as if you are preparing for the penalty phase of a capital trial. Demand time from the court to competently prepare.

26 If You Lose, Consider Filing a Writ! Standard of review of juvenile court s transfer decision is abuse of discretion. No right to appeal; review is by petition for writ of mandate. Must be filed no later than 20 days after the minor enters a plea to the complaint in adult court. (Cal. Rules of Court, rule 5.770(i), 5.772(j).)

27 Prop 57 s Application to Existing Direct-File Cases Issue: Does Prop 57 afford a transfer hearing to cases that were direct-filed prior to Prop 57 s passage? A majority of county D.A. s offices not opposing transfer back to juvenile court Counties opposing transfer with cases in the Court of Appeal: Riverside: People v. Superior Court (Lara) (E067296, pub d 1/19/17, vacated 2/15/17) and People v. Superior Court (Walker) (D071461) Contra Costa: People v. Superior Court (Brown) (A150638) Marin: People v. Superior Court (Henriquez) (A150518) San Joaquin: People v. Superior Court (Hernandez) (C083597)

28 Resources CPDA Proposition 57 Resource Center for Defenders Handouts, training materials, sample motions for remand to juvenile court, 17-minute transfer hearing training video CPDA Juvenile Delinquency Seminar (January 2017) Rourke Stacy Litigating Transfer Hearings presentation Pacific Juvenile Defender Center (PJDC) or PJDC is the statewide resource for juvenile defenders with extensive training materials and resources for transfer hearings Juvenile listserv with hundreds of members Will have a three-hour transfer hearing video training made available online later this month

29 Contact Information Jonathan Laba Assistant Public Defender Contra Costa County Public Defender s Office Richmond, CA (510) jonathan.laba@pd.cccounty.us