Filed 12/20/18 F.G. v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

F.G., Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

H045660 (Santa Clara County Super. Ct. No. JV40864)

I. Introduction

Petitioner F.G. was 16 years old when he allegedly perpetrated a gang murder on April 16, 2016. In January 2017, the district attorney filed a juvenile petition alleging that F.G. committed murder (Pen. Code, § 187); that he committed the offense for the benefit of a criminal street gang (id., § 186.22, subd. (b)(5)); and that a principal in the offense intentionally and personally discharged a firearm, causing the victim’s death (id., § 12022.53, subds. (d), (e)(1)). In conjunction with the petition, the district attorney moved pursuant to Welfare and Institutions Code section 707[1] to transfer F.G. to a court of criminal jurisdiction.[2]

A transfer hearing was held over the course of several days in the fall of 2017. On January 10, 2018, when F.G. was 18 years old, the juvenile court ordered F.G. transferred to adult/criminal court. (See § 707, subd. (a)(1).)

In its written transfer order, the juvenile court made factual findings regarding each of the five criteria it was required to consider under section 707, subdivision (a)(2) (hereafter section 707(a)(2)).[3] We can reasonably infer from its statements that the juvenile court found that F.G.’s previous delinquent history (§ 707(a)(2)(C)(i)) weighed against transfer to adult/criminal court and that the circumstances and gravity of the offense (§ 707(a)(2)(E)(i)) weighed in favor of transfer. We are unable to discern from the juvenile court’s transfer decision whether the court found that the degree of criminal sophistication exhibited by F.G. (§ 707(a)(2)(A)(i)), F.G.’s potential for rehabilitation before the expiration of the juvenile court’s jurisdiction (§ 707(a)(2)(B)(i)), and the success of previous attempts to rehabilitate F.G. (§ 707(a)(2)(D)(i)), weighed in favor of transfer, against transfer, or were neutral. The juvenile court concluded its transfer order by stating: “After considering all of the judicial transfer factors, and considering such factors and evidence in a totality of the circumstances review, this court finds that the People have met its burden of [proof by a] preponderance of the evidence and hereby grants the People’s request to transfer [F.G.’s] case to a court of general criminal jurisdiction.”

F.G. filed a petition for writ of mandate in this court, challenging the juvenile court’s order transferring him to adult/criminal court. In his petition, F.G. contends the juvenile court “failed to appropriately evaluate all of the required [transfer] criteria” and thus “abused its discretion and violated [section 707] which requires all criteria be weighed and balanced . . . .” F.G. also asserts that the district attorney failed to meet his burden of proof. We issued an order to show cause, directing the parties to address the following issues in their briefings: (1) whether, in order to permit meaningful appellate review, the juvenile court was required to make specific findings as to which of the five section 707(a)(2) criteria weighed in favor of transfer, against transfer, or neither in favor of or against transfer; (2) whether the district attorney had the burden of proving each of the section 707(a)(2) criteria by a preponderance of the evidence; and (3) whether there was a reasonable probability that the juvenile court would have reached a different decision had it known that F.G. could be held in the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) until he reached age 25, pursuant to a recent amendment to section 1769. The Attorney General filed a return, and F.G. filed a reply.

For reasons that we shall explain, we conclude that the juvenile court’s transfer decision does not permit meaningful appellate review because the juvenile court did not “clearly and explicitly ‘articulate its evaluative process’ by detailing ‘how it weighed the evidence’ and by ‘identify[ing] the specific facts which persuaded the court’ to reach its decision. [Citation.]” (C.S. v. Superior Court (Dec. 6, 2018, H045665) __ Cal.App.4th __ [2018 Cal.App. Lexis 1126, *29] (C.S.).) In addition, and of particular importance to our decision, is the recent amendment to section 1769. We are unable to determine from the juvenile court’s order whether the court would have reached a different conclusion regarding transfer had the law provided at the time of the transfer hearing that F.G. could be held in DJF until age 25. Thus, because the juvenile court did not clearly and explicitly “ ‘articulate its evaluative process’ ” in a way that permitted meaningful appellate review (C.S., supra, at *29), and given the recent change to section 1769 extending the time F.G. could be held in DJF, we will issue a peremptory writ of mandate commanding respondent court to vacate the challenged transfer order and make further findings regarding the section 707(a)(2) criteria.

II. Background

A. The Charged Offense^[4]

The charges arose from a gang-related murder committed on April 16, 2016. At the time, F.G. was 16 years 11 months old. The victim was 18-year-old Cruz Castro, who was walking with some friends. F.G. and four companions were in a car that drove past Castro. F.G. identified Castro as a Norteño, and the group turned their car around and stopped.

F.G. and Raul Tellez got out of the car.[5] F.G. issued a gang challenge to Castro. A shot was fired, and Castro tried to flee. Castro ran about 100 feet before F.G. and Tellez caught up to him. Someone said, “ ‘[J]ust kill him.’ ” Tellez shot Castro in the buttocks, and Castro fell to the ground. F.G. then stabbed Castro multiple times and Tellez shot him in the back, face, and head. The stabbing punctured Castro’s lungs and was a cause of his death. After the incident, F.G., Tellez, and two of their companions went to a party. F.G. gave the knife to one of his companions, telling him to clean it. F.G. was arrested for the offense on January 19, 2017.

B. Procedural History

On January 23, 2017, the district attorney filed a juvenile petition alleging that F.G. committed murder (Pen. Code, § 187). The petition also alleged that F.G. committed the offense for the benefit of a criminal street gang (id., § 186.22, subd. (b)(5)) and that a principal in the offense intentionally and personally discharged a firearm, causing Castro’s death (id., § 12022.53, subds. (d), (e)(1)). In conjunction with the juvenile petition, the district attorney moved to transfer F.G. to adult/criminal court.

The juvenile court held a multi-day transfer hearing in the fall of 2017. On January 10, 2018, the juvenile court ordered F.G. to be transferred to adult/criminal court. F.G. was 18 years old.

The district attorney filed a second amended felony complaint on March 2, 2018, charging F.G. with murder (Pen. Code, § 187) and participating in a criminal street crime (id., § 186.22, subd. (a)). The complaint also alleged that F.G. committed the murder for the benefit of a criminal street gang (id., § 186.22, subd. (b)(5)); that a principal in the offense intentionally and personally discharged a firearm, causing Castro’s death (id., § 12022.53, subd. (d)); and that F.G. personally used a deadly and dangerous weapon, a knife, in the commission of the offense (id., § 12022, subd. (b)(1)). In addition, the complaint alleged a gang special circumstance (id., § 190.2, subd (a)(22)).

On March 22, 2018, F.G. filed a petition for writ of mandate in this court, challenging the juvenile court’s order transferring him to adult/criminal court.

C. The Transfer Proceedings

A transfer report (§ 707, subd. (a)(1)) was prepared by a probation officer, who recommended F.G. be transferred to adult/criminal court. F.G. presented the following documents to the juvenile court: (1) a statement from his mother; (2) the report of a psychiatrist who opined that F.G. should not be transferred to adult/criminal court; (3) the report of a juvenile justice consultant who opined that F.G. should not be transferred to adult/criminal court; (4) the report of a gang expert who opined that although F.G. was a gang member, he could be rehabilitated in DJF; and (5) the report of a case consultant with the Center on Juvenile and Criminal Justice who opined that F.G. was amenable to juvenile court intervention.

At the multi-day transfer hearing, the district attorney presented testimony from the probation officer who prepared the transfer report, as well as victim impact statements from Castro’s mother, grandparents, and aunt. F.G.’s witnesses included the psychiatrist, the juvenile justice consultant, his mother, and one of his teachers. We review the evidence below.

1. The People’s Evidence

a. The Probation Officer

The probation officer who prepared the transfer report opined, based on his twelve and a half years of experience working with minors in the delinquency system and his two years of working with F.G., that F.G. should be transferred to adult/criminal court.

The probation officer believed that F.G. was “very sophisticated . . . in terms of his history, commitment to the gang lifestyle, and his participation in the [charged] offenses.” F.G. was a member of the Kollmar Vagos Trece (KVT) gang, which affiliated with the Sureños. F.G. had gang tattoos, one of which he got after the charged offense, and possessed gang indicia. About two weeks after F.G. was placed in juvenile hall for the charged offense, F.G. attacked one of his co-participants in the murder who was also housed in juvenile hall for cooperating with law enforcement. In addition, KVT gang graffiti was found in a room where F.G. had been visiting with his mother. The probation officer opined that F.G.’s denial of his involvement with the KVT was sophisticated, and that F.G’s commission of the charged offense showed sophistication because F.G. did not yell out a gang affiliation and he asked another gang member to dispose of the knife.

The probation officer opined that F.G. could not be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. He believed that placement at the Santa Clara County Boys Ranch would not rehabilitate F.G. given the seriousness of the charged offense and F.G.’s escalating criminality. He also did not consider electronic monitoring to be a viable option for F.G. The probation officer testified that F.G. could be retained in DJF until he was 23 years old. Based on DJF’s intake and release procedures and given F.G.’s age, F.G. would be in DJF for approximately five years. The probation officer concluded that five years would not be enough time to rehabilitate F.G. based on F.G.’s level of gang involvement, his criminality, and the seriousness of the offense.

The probation officer also discussed F.G.’s delinquency history. F.G.’s delinquency history began in 2011 with a vandalism arrest, which was resolved through informal supervision and a referral to the Restorative Justice Program. In August 2014, F.G. forced entry into a vehicle. F.G. was placed on deferred entry of judgment (DEJ) and enrolled in anti-gang programming. In June 2015, police contacted F.G. with other gang members and found burglary tools in his pocket. A subsequent probation search of F.G.’s home revealed 82 live .22-caliber bullets on a shelf next to F.G.’s bed. F.G. “was failed from DEJ,” declared a ward of the juvenile court, and placed on probation with electronic monitoring. In December 2015, F.G. violated his probation by “hanging out with gang members in a known gang neighborhood . . . after curfew.” The charged offense occurred in April 2016. In October 2016, F.G. brandished a firearm and was arrested for possession of a loaded firearm.

The probation officer’s transfer report included additional information regarding F.G.’s delinquency history. In May 2015, F.G. was arrested for carrying a switchblade knife and for possession of marijuana (an infraction). F.G. was ordered to complete a substance abuse class and the matter was settled informally. In October 2015, two section 602 petitions were sustained for: (1) theft or unlawful driving of a vehicle (a felony); and (2) possession of live ammunition by a minor and possession of burglar tools (both misdemeanors). The terms of F.G.’s probation included “full gang orders” and his case was transferred to the probation department’s gang unit for supervision. In July 2016, F.G. was arrested for fleeing after a car crash. In October 2016, F.G. was arrested for carrying a loaded firearm and carrying a concealed firearm, following an incident where he approached someone and issued a gang challenge. Two juvenile petitions were sustained as a result of those incidents. F.G. was ordered to complete a 60-day community release program.

The probation officer detailed previous attempts to rehabilitate F.G. F.G. had received community services and anti-gang programming, including the Probation Gang Resistance and Intervention Program. The probation officer opined that the programs were unsuccessful based on F.G.’s arrest for the charged offense.

The probation officer also testified about the circumstances of the charged offense. He noted that F.G. stabbed the victim after the victim had been shot and was trying to get away. The probation officer believed that stabbing someone was “more personal” than shooting someone given the close proximity of the violence. Based on the seriousness of the charges and F.G.’s alleged participation in the offense, the probation officer did not believe F.G. could be rehabilitated within the juvenile system.

The probation officer concluded that F.G. should be transferred to adult/criminal court based on “the totality of the circumstances” and his consideration of the section 707(a)(2) criteria.

b. Victim Impact Statements

Castro’s mother, grandparents, and aunt read victim impact statements. The statements spoke of the love between Castro and his family members, Castro’s plans for the future, and the tremendous loss his family suffered from his death.

2. The Defense Evidence

a. The Psychiatrist

Dr. Richard Shaw, a child and adolescent psychiatrist, testified as an expert in child and adolescent psychiatry and development, the risk factors of youth and violence, and the treatment and rehabilitation of youthful offenders. Dr. Shaw evaluated F.G. in March 2017.

Dr. Shaw testified that the brain of a 16 year old is “different on multiple levels” from the brain of a 25 year old. The parts of the brain responsible for controlling impulses and regulating emotions mature much later than areas of the brain that control movement and intelligence. A person’s “moral development” is not mature until age 20, and a brain is not considered “fully developed” until the age of 25. A 16 year old’s impulse control and ability to the anticipate the consequences of his or her behavior is “definitely on the low end.” Adolescents are also more susceptible to peer pressure than adults. Studies have shown that only 10 to 20 percent of adolescent offenders continue to commit crimes as adults. “[A] lot of adolescent gang members as they get older will drop their [gang] affiliation or membership.” Dr. Shaw opined that F.G.’s brain development was “very typical” and that F.G.’s brain would continue to develop over the next five to seven years.

F.G. began drinking and using marijuana at age 10. Both substances can damage the brain and impact impulse control. In his teenage years, F.G. began using cocaine, which also lessens impulse control, and crystal methamphetamine, which makes a person more likely to engage in violence.

F.G. never had contact with his father and was often unsupervised because of his mother’s long work hours. F.G. was subjected to physical and emotional abuse by his stepfather and witnessed domestic violence. These factors increased F.G.’s susceptibility to neighborhood gang influences.

F.G.’s family was poor and moved many times. He often lived in areas with frequent criminal activity. He experienced the loss of friends and relatives, some to gang-related shootings.

F.G. suffered a significant head injury in January 2014. A head injury can cause mood disorders, increase the likelihood of depression and anxiety, and interfere with cognition.

Dr. Shaw diagnosed F.G. with attention-deficit hyperactivity disorder, depression, post-traumatic stress disorder, and separation anxiety disorder. F.G. had never received treatment for his disorders.

Dr. Shaw opined that it was “certainly possible” that F.G. could be rehabilitated by age 23 if he received appropriate treatment for his “adolescent developmental issues.” F.G. had already demonstrated that he could be rehabilitated. F.G. was attending juvenile hall school, meeting with a psychiatrist and taking antidepressants, meeting with a counselor, and participating in groups. Dr. Shaw believed DJF offered the services necessary to rehabilitate F.G., including anti-gang programming, and would provide F.G. with a better chance of rehabilitation than prison incarceration. Dr. Shaw recommended that F.G. remain “in the juvenile justice system where . . . appropriate treatment is available to him.”

b. The Juvenile Justice Consultant

Juvenile Justice Consultant Doug Ugarkovich testified as an expert in the “amenability of youth for placement” at DJF. Ugarkovich interviewed F.G. in August 2017.

F.G. qualified for admission to DJF. Nine to ten percent of DJF’s population had a sustained juvenile petition for murder and the majority of its population had a gang history. Murder is a “Category 1” offense with a designated seven-year “projected board date,” but a juvenile can be discharged prior to the projected date. The average length of a DJF commitment for first degree murder was six years; for second degree murder it was five years. The recidivism rate for minors committed to DJF for murder who were released between 2011 and 2012 was 12.5 percent. For all DJF offenders released during that time period the recidivism rate was 37.3 percent. A minor transferred to the adult system was more likely to reoffend than a minor who remained in the juvenile system. It was easier to drop out of a gang in the juvenile system.

Ugarkovich believed that an evaluation of a minor’s ability to rehabilitate should include all of the time the minor is in custody on the charged offense because that takes into account the minor’s rehabilitation progress since the time of his or her arrest. If F.G.’s placement at juvenile hall from the time of his arrest on the charged offense were included in the calculation of time he could be under the juvenile court’s jurisdiction, the jurisdiction period would be just under five and a half years, assuming the court’s jurisdiction expired when F.G. reached age 23. F.G. would be released from DJF about three to four months before his 23rd birthday, sometime between January and February 2022. F.G. would then be under county supervision for the remaining 90 to 120 days of the juvenile court’s jurisdiction.

If F.G. were placed in DJF, he would receive programming tailored to changing his negative behavior. He would be screened at intake for 45 days, where his medical health, mental health, education needs, and risk needs would be assessed and treatment programs necessary for his rehabilitation would be identified. DJF programs include aggression management, substance abuse treatment, high school education, vocational training, and mental health counseling.

Ugarkovich opined that F.G. could be rehabilitated prior to the expiration of the juvenile court’s jurisdiction; that he would do well in the juvenile system; and that the best placement for him was in DJF. F.G. wanted to get help and recognized that he needed to improve his decisionmaking and remove himself from gang culture. Ugarkovich found F.G. to be insightful and open to DJF programming. F.G.’s gang membership would not prevent his rehabilitation prior to the expiration of the juvenile court’s jurisdiction. Although the charged offense was “very serious and horrific,” it did not change Ugarkovich’s opinion that F.G. could be rehabilitated in DJF. F.G.’s participation in mental health treatment programs at juvenile hall was a sign of him moving forward in the rehabilitation process.

c. Other Witnesses

F.G.’s mother, M.G.,[6] was born in Mexico. She moved to the United States when she was six-months pregnant with F.G., residing in her brother’s apartment in San Jose. F.G.’s father never provided financial or emotional support for F.G. Before F.G.’s arrest for the charged offense, M.G. and F.G. had moved nine to eleven times because of financial difficulties. Some of their neighborhoods were gang-infested.

When F.G. was about eight years old, M.G. became romantically involved with Angel Hernandez. Hernandez was verbally and physically abusive with F.G., and F.G. witnessed Hernandez physically abuse M.G. One of F.G.’s cousins died and several of his friends were killed during his childhood. In January 2014, F.G. was hit by a car and had to be hospitalized. Afterwards, M.G. sent him to live with relatives in Oklahoma for five or six months because she was scared for his safety. F.G. did not attend school during that time. M.G. noticed during her visits with F.G. at juvenile hall that he was calmer and less anxious.

Retired teacher Minerva Chamorro met F.G. in 2014 when he was referred to a local program to help him graduate from high school. Chamorro was F.G.’s teacher until he was arrested for the charged offense. When F.G. began the program he was struggling, but by the time of his arrest, F.G. was on track to graduate. Chamorro found F.G. to be curious, smart, respectful, and diligent in his studies. Chamorro believed F.G. was capable of rehabilitation.

Gang expert Jesse De La Cruz’s report was submitted in lieu of testimony. De La Cruz found that certain “risk factors” contributed to F.G.’s gang involvement. Those factors included domestic violence, physical and emotional abuse, poverty, and exposure to gang culture by his own relatives. De La Cruz believed F.G. was “redeemable” and should be kept in the juvenile system. Prison would not offer F.G. “any rehabilitative treatment.” De La Cruz noted that gang members typically begin “aging out” of gang culture around age 24.

The juvenile court also received a report from Tashelle LeBlanc, a case consultant with the Center on Juvenile and Criminal Justice. She believed that F.G. had not received services adequate to address his criminality and mental health needs, and she opined that F.G. was amenable to treatment within the juvenile justice system.

D. The Juvenile Court’s Findings

In a written order, the juvenile court found that, “[a]fter considering all of the judicial transfer factors . . . and evidence in a totality of the circumstances review,” the district attorney had proved by a preponderance of the evidence that F.G. should be transferred to adult/criminal court. The juvenile court reviewed all five of the criteria set forth in section 707(a)(2).

1. Criminal Sophistication (§ 707(a)(2)(A)(i))

With respect to the degree of criminal sophistication exhibited by F.G. (§ 707(a)(2)(A)(i)), the juvenile court considered F.G.’s childhood, maturity, prior offenses, gang involvement, and brain development. The court also considered the circumstances of the charged offense that bore on F.G.’s sophistication. The court found that F.G. was “mature and sophisticated.” The court observed that F.G. was a “phenomenal student” who “learned self-sufficiency” while being “raised by a single immigrant mother with little education and little ability to obtain housing in a safer neighborhood away from negative influences.”

The juvenile court noted that F.G.’s delinquency history included car theft, possession of ammunition, possession of car burglary tools, and brandishing a firearm, but concluded that F.G. did “not have much by the way of juvenile offenses.” The court determined that F.G. was “involved in the gang lifestyle” based on his use of gang-related “tags” and his tattoos, clothing, and school conduct. The court detailed the evidence it heard from the probation officer regarding his opinion that F.G. was associated with the KVT gang and was committed to the Sureño gang lifestyle, including that F.G. got into a fight with another Sureño while in juvenile hall and tagged a room there.

The juvenile court found that some factors indicated F.G. did not demonstrate criminal sophistication with respect to the charged offense, as the homicide did not appear to be “pre-planned” and there was no evidence that F.G. wore gloves or a mask or waited to commit the offense until there were no witnesses. On the other hand, the juvenile court observed that F.G. “was armed with a knife which shows some level of preparation in advance or expectation of conflict.”

The juvenile court stated that it had “considered the fact that [F.G.’s] brain is not fully developed, even today.” The court also acknowledged that “eing with adults and other gang-involved people most certainly had an impact on” F.G.’s conduct during the charged offense, but found that F.G.’s “undeveloped brain does not excuse his actions.”

The juvenile court observed that with the exception of the gang-related assault and tagging, F.G. had followed directions, participated in programming, and attended school while in juvenile hall. The court found that F.G. got along with juvenile hall staff, probation staff, counselors, and community outreach providers, and that before F.G. was arrested he juggled part-time jobs and school, demonstrating “a maturity beyond his years. . . . But it is because [F.G.] is so affable, collegial, intelligent, caring and sophisticated that makes it obvious to the court that he knew exactly what he was doing when he killed Mr. Castro.”

The juvenile court listed the evidence it heard of the “cumulative trauma” F.G. experienced as a child, including never meeting his father, unstable housing and schools, the death of his cousin when F.G. was five years old, and the loss of his friends. The court found that F.G. had suffered physical and verbal abuse as a child. Finally, the juvenile court stated that Dr. Shaw had diagnosed F.G. with numerous, untreated substance-abuse issues and with several substance-abuse disorders.

The juvenile court did not explicitly state whether this criterion weighed in favor of or against transfer to adult/criminal court, or whether it found this criterion to be neutral.

2. Likelihood of Rehabilitation During Juvenile Court Jurisdiction (§ 707(a)(2)(B)(i))

With respect to whether F.G. could be rehabilitated before the expiration of the juvenile court’s jurisdiction (§ 707(a)(2)(B)(i)), the juvenile court found that neither electronic monitoring nor a juvenile ranch facility was a viable option for F.G. given the seriousness of the charged offense and community safety concerns. The court also determined that DJF “ideally would require a period of 7 years to rehabilitate [F.G.]” The court observed that F.G. was 18 years 7 months old at the time of its transfer decision in January 2018, and that DJF could not keep offenders past the age of 23. Based on DJF’s intake and release procedures, the court determined that F.G. “would only receive programming for approximately four years” at DJF.

The juvenile court did not explicitly state whether it found this criterion weighed in favor of or against transfer to adult/criminal court, or whether it found this criterion to be neutral.

3. Prior Delinquent History (§ 707(a)(2)(C)(i))

With respect to F.G.’s prior delinquent history (§ 707(a)(2)(C)(i)), the juvenile court found that F.G. “had very few sustained petitions in comparison with other youth of his age in similar circumstances.” The juvenile court did not explicitly state whether this criterion weighed in favor of or against transfer to adult court, or whether it found this criterion to be neutral. However, we can reasonably infer that the juvenile court found this criterion to weigh against transfer to adult/criminal court.

4. Previous Attempts at Rehabilitation (§ 707(a)(2)(D)(i))

With respect to the success of previous attempts to rehabilitate F.G. (§ 707(a)(2)(D)(i)), the juvenile court created a multipage chart listing F.G.’s misconduct and criminality, the interventions he received, and his reaction to the interventions. The court found that F.G. had “been offered or . . . had imposed [on him] most of the non-custodial options that Santa Clara County offers to young offenders.” The court detailed the services the county probation department offered to juvenile offenders and found that F.G. “received such services,” although he was not sent to a ranch facility or an out-of-state program because his prior offenses “did not rise to a level that such services were required.”

The juvenile court did not explicitly state whether this criterion weighed in favor of or against transfer to adult court, or whether it found this criterion to be neutral.

5. Circumstances and Gravity of the Offense (§ 707(a)(2)(E)(i))

With respect to the circumstances and gravity of the charged offense (§ 707(a)(2)(E)(i)), the juvenile court stated that it had “accepted and considered the fact that [F.G.’s] brain was not completely developed” and that it had “considered all” of the evidence in mitigation, including that F.G. “likely gravitated to the gang lifestyle as a result of having no or poor supervision at home and because he lived in a gang-infested neighborhood.” The court found that “as significant as these [mitigating] factors are when viewed together, they do not explain away [F.G.’s] choice to hunt Mr. Castro on April 16, 2016.”[b][7]

Although the juvenile court did not explicitly state whether it found this criterion weighed in favor of or against transfer to adult/criminal court, or whether the criterion was neutral, we can reasonably infer from the juvenile court’s order that the court found this criterion weighed in favor of transfer to adult/criminal court.

6. Decision

The juvenile court’s order concluded: “After considering all of the judicial transfer factors, and considering such factors and evidence in a totality of the circumstances review, this court finds that the People have met its burden of [proof by a] preponderance of the evidence and hereby grants the People’s request to transfer [F.G.’s] case to a court of general criminal jurisdiction.”

III. Discussion

A. Welfare and Institutions Code Section 707

“When a minor has been charged in the juvenile court with any felony allegedly committed when he or she was 16 years of age or older, the prosecutor ‘may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction’ ” pursuant to section 707, subdivision (a)(1). (J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 711 (J.N.).) As detailed below, section 707, subdivision (a) and California Rules of Court, rule 5.770[8] provide the procedures and standards under which a minor may be transferred to adult/criminal court. (§ 707, subd. (a)(1).) “[T]he burden of proving that there should be a transfer of jurisdiction to criminal court jurisdiction is on the petitioner, by a preponderance of the evidence.” (Rule 5.770(a); see also J.N., supra, at p. 715.) Neither section 707 nor rule 5.770 explicitly requires the petitioner to prove each of the section 707(a)(2) criteria by a preponderance of the evidence.

1. Transfer Criteria

The juvenile court must “consider” five criteria when determining whether a case should remain in juvenile court or be transferred to adult/criminal court. (§ 707(a)(2).)

The first criterion is the degree of criminal sophistication exhibited by the minor. (§ 707(a)(2)(A)(i).) Section 707(a)(2)(A)(ii) specifies that when evaluating criminal sophistication, “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.”

The second criterion is whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. (§ 707(a)(2)(B)(i).) Section 707(a)(2)(B)(ii) specifies that when evaluating a minor’s potential for rehabilitation during the juvenile court’s jurisdiction, “the juvenile court may give weight to any relevant factor, including, but not limited to, the minor’s potential to grow and mature.”

The third criterion is the minor’s previous delinquent history. (§ 707(a)(2)(C)(i).) Section 707(a)(2)(C)(ii) specifies that when evaluating the minor’s delinquency history, “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.”

The fourth criterion is the success of previous attempts by the juvenile court to rehabilitate the minor. (§ 707(a)(2)(D)(i).) Section 707(a)(2)(D)(ii) specifies that when evaluating previous rehabilitation attempts, “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.”

The fifth criterion is the circumstances and gravity of the offense alleged to have been committed by the minor. (§ 707(a)(2)(E)(i).) Section 707(a)(2)(E)(ii) specifies that when evaluating the circumstances and gravity of the offense, “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.”

2. Transfer Decision

If after consideration of the five transfer criteria, the parties’ relevant evidence, and the mandatory probation report on the minor’s behavioral patterns and social history, the juvenile court “orders a transfer of jurisdiction, the court shall recite the basis for its decision in an order entered upon the minutes.” (§ 707(a)(2).) The juvenile court must also set a date for the minor to appear in adult/criminal court. (Rule 5.770(d)(2).) If the juvenile court denies the transfer motion, a jurisdiction hearing must be held. (Rule 5.770(d)(1).)

3. Writ Review

Both parties—the minor and the prosecuting attorney—may seek appellate review of the juvenile court’s ruling, by way of petition for extraordinary writ. (Rule 5.770(d)(3).) If the prosecutor intends to seek writ review, the prosecutor may obtain a continuance of the jurisdiction hearing. (Rule 5.770(e).)[9] If the minor intends to seek writ review, the minor must file the petition “no later than 20 days after the [minor’s] first arraignment on an accusatory pleading” in adult/criminal court. (Rule 5.770(g).)

“On writ review, the appellate court reviews the juvenile court’s transfer decision under the abuse of discretion standard. [Citations.] However, the juvenile court’s findings of fact are reviewed for ‘ “substantial evidence,” ’ which is evidence ‘ “ ‘reasonable in nature, credible, and of solid value.’ ” ’ [Citations].” (C.S., supra, __ Cal.App.4th __ [2018 Cal.App. Lexis 1126 at *26].)

B. Analysis

F.G. contends that the juvenile court’s transfer decision was an abuse of discretion because the court “failed to appropriately evaluate all of the required [section 707(a)(2)] criteria” and did not “weigh[] and balance[]” the criteria. F.G. also contends that the juvenile court’s decision does not permit meaningful appellate review because the juvenile court “describe[d] the evidence” it heard, but did not articulate how it “used” the criteria to reach its conclusion. F.G. argues that in its transfer decision, the juvenile court must both make factual findings regarding the criteria and “describe how it analyze[d] those findings,” in order to permit meaningful appellate review. The Attorney General asserts that nothing in section 707 required the juvenile court to make specific findings as to which of the section 707(a)(2) criteria weighed in favor of transfer, against transfer, or neither in favor of or against transfer. The Attorney General does not address whether specific findings regarding how the juvenile court weighed the criteria are necessary to permit meaningful appellate review of a transfer decision.

While we agree with the Attorney General that section 707(a)(2) requires only that the juvenile court “recite the basis for its decision in an order entered upon the minutes” (§ 707(a)(2)), principles of due process require a statement of decision that “ ‘set[s] forth the basis for the order with sufficient specificity to permit meaningful review.’ [Citation.]” (C.S., supra, __ Cal.App.4th __ [2018 Cal.App. Lexis 1126 at *27].) As we recently held in C.S. as applied to a decision to transfer a minor to adult/criminal court under section 707(a)(2), in order to permit meaningful appellate review, a juvenile court must “clearly and explicitly ‘articulate its evaluative process’ by detailing ‘how it weighed the evidence’ and by ‘identify[ing] the specific facts which persuaded the court’ to reach its decision. [Citation.]” (C.S., supra, at *29.) “In most cases, this requirement will be met where the juvenile court performs a factual analysis of the relevant factors as to each criterion—as the juvenile court did in this case—and then specifies the criteria that weighed in favor of transfer. Likewise, where the juvenile court decides not to transfer a minor to adult/criminal court under section 707(a)(2), the juvenile court should explain its evaluative process, typically by performing a factual analysis of the relevant factors as to each criterion and then specifying which criteria weighed against transfer. In all cases, appellate review would be greatly assisted if the juvenile court states which of the section 707(a)(2) criteria weighed in favor of transfer, against transfer, or neither in favor of or against transfer.^[[10]^]” (Id. at *29-30.)

Here, the juvenile court considered all five of the section 707(a)(2) criteria and found the district attorney had proved, by a preponderance of the evidence, that F.G. should be transferred to adult/criminal court. However, the juvenile court did not explicitly state which of the criteria weighed in favor of transfer to adult/criminal court, which of the criteria weighed against transfer, and which of the criteria were neutral. (Cf. J.N., supra, 23 Cal.App.5th at p. 715 [juvenile court found that three criteria weighed against transfer and two criteria weighed in favor of transfer].) We therefore proceed to carefully review the juvenile court’s statement of decision in order to determine whether the juvenile court adequately articulated its “ ‘evaluative process’ ” so as to permit us to meaningfully review F.G.’s contentions. (C.S., Cal.App.4th [2018 Cal.App. Lexis 1126 at *31].)

1. Criminal Sophistication (§ 707(a)(2)(A)(i))

F.G. contends that although the juvenile court found he was “ ‘mature and sophisticated,’ ” it “did not find that [he] exhibited criminal sophistication which is the specific [criterion] laid out in the statute.” F.G. argues that “[c]riminal sophistication must mean something more than the court citing that [he], despite an underdeveloped brain and ‘untold toll of cumulative trauma,’ ‘knew exactly what he was doing’ on the incident date.” F.G. also points out that the juvenile court found that some of the factors weighed in favor of a finding that he did not act with criminal sophistication.

As F.G. asserts, the juvenile court found that F.G. was “mature and sophisticated.” The court referenced F.G.’s educational success in juvenile hall, his conduct in court, and his ability to maintain part-time jobs to help support his family while attending school. The court also determined that F.G. did “not have much by the way of juvenile offenses,” but found that he was “involved in the gang lifestyle.” Regarding the charged offense, the court found both that it did “not appear to be pre-planned,” which “did not demonstrate criminal sophistication,” but also that F.G. “was armed with a knife which shows some level of preparation.” The court again cited F.G.’s ability to be successful in juvenile hall, finding that F.G.’s intelligence made it “obvious . . . that he knew exactly what he was doing” when he killed the victim. The court also noted Dr. Shaw’s testimony about adolescent brain development, but found that F.G.’s “undeveloped brain does not excuse his actions.” The court detailed Dr. Shaw’s testimony about F.G.’s childhood history of trauma, but did not specify whether it found this evidence bore on F.G.’s criminal sophistication.

We are unable to determine from our review of the record how this criterion weighed in the juvenile court’s analysis of whether to transfer F.G. to adult/criminal court. Although the juvenile court discussed relevant factors—such as F.G.’s childhood, the expert testimony regarding brain development, F.G.’s prior offenses, and F.G.’s gang involvement—we do not know whether the juvenile court found that these factors showed criminal sophistication or weighed in favor of or against transfer. Because the juvenile court did not clearly and explicitly explain whether it found that F.G. exhibited criminal sophistication or how the criminal sophistication factors weighed in its transfer decision, we cannot meaningfully review F.G.’s claims.

2. Likelihood of Rehabilitation During Juvenile Court Jurisdiction (§ 707(a)(2)(B)(i))

F.G. contends that the juvenile court “merely laid out the dispositional options for [him] but did not rule or find that [he] could not be rehabilitated prior to the expiration of the juvenile court’s jurisdiction.” He argues that the juvenile court failed to evaluate some of the factors relevant to his potential for rehabilitation, such as Dr. Shaw’s testimony that adolescent gang members often drop out of their gangs as they mature.

The juvenile court found that neither electronic monitoring nor a juvenile ranch facility was “a viable option for [F.G.].” The court also found that F.G. could only be held in DJF until he reached age 23, which would result in an approximately four-year commitment there. The court determined that since the charged offense was a homicide, “[DJF] ideally would require a period of 7 years to rehabilitate [F.G.].”[11]

The transfer order does not clearly indicate whether the juvenile court found that this criterion weighed in favor of transfer, against transfer, or neither in favor of or against transfer, nor does it articulate how much weight the court accorded this criterion. Importantly, based on a recent change to the law, DJF can now hold a minor like F.G. in custody until age 25. (See § 1769, subds. (b), (d)(2).) F.G. argues that “[t]here is a reasonable probability that the juvenile court would have reached a different result [regarding transfer] had it known” he could be held in DJF for two more years. The Attorney General disagrees, pointing out that the California Code of Regulations state that murder is a “Category 1” offense with a “parole consideration date interval of seven years.” (Cal. Code Regs., tit. 15, § 4951.)

We are unable to determine from the transfer decision whether the juvenile court would have reached a different conclusion had it known that F.G. could be retained in DJF until age 25. Arguably, the amendment to section 1769 may have led the juvenile court to reach a different determination regarding this criterion, since F.G. could have spent two more years in DJF, resulting roughly in a six-year placement there—approximately the same amount of time as the average length of a DJF commitment for first degree murder. Although the probation officer testified that five years in DJF would not be enough time to rehabilitate F.G., Dr. Shaw believed F.G. could be rehabilitated by age 23 and Ugarkovich opined that a four-year DJF commitment would suffice. If the juvenile court had known that F.G. could spend approximately six years in DJF, the juvenile court may reasonably have decided that F.G. could be rehabilitated prior to the expiration of its jurisdiction.

3. Prior Delinquent History (§ 707(a)(2)(C)(i))

The juvenile court found that F.G. “has had very few sustained petitions in comparison with other youth of his age in similar circumstances.” Neither party challenges that finding. Although the court did not explicitly state that it found this criterion weighed against transferring F.G. to adult/criminal court, we can reasonably infer that the court made such a finding.

4. Previous Attempts at Rehabilitation (§ 707(a)(2)(D)(i))

The juvenile court created a chart that connected F.G.’s prior delinquent conduct with the interventions he received and the results of those interventions. For instance, the chart indicated that F.G. “got additional gang tattoos” after his first juvenile petition was sustained and he was placed on DEJ with referrals to various programs, and that F.G. “minimally participated” in the services provided after his probation violation. The juvenile court found that F.G. had been offered “most of the non-custodial options” available and that he had received “intensive monitoring” by the probation department for gang-involved minors.

The juvenile court did not state whether it found this factor weighed in favor of transfer, against transfer, or was neutral. F.G. makes this point by arguing that the juvenile court “listed the various services offered to [him] but did not make a finding as to the success or non-success of such services.” F.G. also asserts that the juvenile court “failed to appropriately assess the fact that . . . he was only referred to more intensive gang intervention services . . . several months after his alleged involvement” in the charged offense.

Evaluating F.G.’s claims is difficult because we do not know how this criterion weighed in the juvenile court’s analysis of whether to transfer F.G. to adult/criminal court. There was evidence that F.G. was provided prior services, but not necessarily services adequate to address all his needs, and there was evidence that F.G. resisted some prior services but participated in others. Ultimately, however, because we are unable to determine from our review of the record how this criterion weighed in the juvenile court’s analysis of whether to transfer F.G. to adult/criminal court, we cannot meaningfully review its findings.

5. Circumstances and Gravity of the Offense (§ 707(a)(2)(E)(i))

Although the juvenile court did not explicitly state that it found the circumstances and gravity of the offense weighed in favor of transfer to adult/criminal court, we can reasonably infer that the court made such a finding, which F.G. challenges. F.G. contends the juvenile court failed to consider the impact of peer pressure, alcohol, and drugs, and that the juvenile court wrongly placed a burden on him to “ ‘explain away’ ” his conduct.

The juvenile court stated that it had considered “the fact that [F.G.]’s brain was not completely developed” and “all of the mitigating evidence” that F.G. had presented. The court found that F.G. “most likely gravitated to the gang lifestyle as a result of having no or poor supervision at home and because he lived in a gang-infested neighborhood.” The court recognized “the impact of the domestic violence . . . and the negative influences that bombarded [F.G.] daily the moment he walked outside his family’s dwelling.” However, the court determined that none of those factors could “explain away [F.G.]’s choice to hunt” Castro. The juvenile court emphasized that F.G. had chosen to confront, chase, and stab Castro.

The juvenile court’s decision clarifies that it weighed relevant factors when considering this criterion, such as F.G.’s “mental state” and “degree of involvement in the crime.” (§ 707(a)(2)(E)(ii).) It also indicates that the court weighed F.G.’s “mental and emotional development” (ibid.) as well as the other mitigating evidence that F.G. presented. The court’s decision regarding this criterion can be fairly read as a finding that despite the evidence in mitigation, the circumstances of the charged offense weighed in favor of transfer.

We are able to meaningfully review the juvenile court’s finding as to this criterion and conclude that it is supported by substantial evidence. The circumstances of the offense in this case are distinguishable from the circumstances of the offense in J.N., supra, 23 Cal.App.5th 706. Here, F.G.’s “actual behavior” (§ 707(a)(2)(E)(ii)) included initiating a gang confrontation and stabbing the victim multiple times. This is completely different from the behavior of the juvenile in J.N., who stood frozen during a shooting, which occurred during an unexpected struggle over a gun between two other people. (J.N., supra, at pp. 711-712.) F.G.’s “mental state” demonstrated an intent to kill; F.G. had a high “degree of involvement in the crime;” and “the level of harm actually caused” by F.G. was the victim’s death. (§ 707(a)(2)(E)(ii).) Substantial evidence supports the juvenile court’s finding that the gravity and circumstances of the offense weighed in favor of transfer to adult/criminal court.

6. Decision

F.G. contends that the juvenile court did not properly “weigh and balance” the five section 707(a)(2) criteria. F.G. also asserts that the juvenile court failed to factor his “relatively minimal delinquent history” into its analysis, and that because “the record . . . is void of specific findings as to each criteria, [it] leads to [the] reasonable inference that the juvenile court unlawfully applied a homicide exception by placing excessive weight on [the] gravity of the offense and the harm caused.”

“It is settled law in other statutory schemes involving the consideration and weighing of numerous factors that the trier of fact may accord appropriate weight to each factor; the law generally does not require that the same weight be accorded to each factor. [Citation.] Nothing in section 707 indicates that the juvenile court was required to give equal weight to each of the five criteria or that it would necessarily be an abuse of discretion to find that one criterion outweighed the other criteria.” (C.S., supra,

Cal.App.4th [2018 Cal.App. Lexis 1126 at *40-41].)

However, based on our review of the record, the juvenile court made few clear findings as to which criteria weighed in favor transfer, which criteria weighed against transfer, and which criteria were neutral. We have been able to infer from the transfer decision that the juvenile court found the gravity of the offense weighed in favor of transfer to adult/criminal court (§ 707(a)(2)(E)(i)). We have also inferred from the juvenile court’s transfer decision that the court found that F.G.’s prior delinquent history weighed against transfer to adult/criminal court (§ 707(a)(2)(C)(i)). We have been unable to discern how the court viewed F.G.’s criminal sophistication (§ 707(a)(2)(A)(i)), whether F.G. could be rehabilitated prior to the expiration of the juvenile court’s jurisdiction (§ 707(a)(2)(B)(i)), and the success of previous attempts to rehabilitate F.G. (§ 707(a)(2)(D)(i)). We have also been unable to determine whether the recent amendment to section 1769, which extended the time F.G. could be held in DJF by two years, would have affected the court’s transfer decision.

The juvenile court concluded its transfer decision by stating: “After considering all of the judicial transfer factors, and considering such factors and evidence in a totality of the circumstances review, this court finds that the People have met its burden of [proof by a] preponderance of the evidence and hereby grants the People’s request to transfer [F.G.’s] case to a court of general criminal jurisdiction.” While we recognize from the transfer order that the court carefully considered each of the transfer criteria, this concluding statement does not permit us to evaluate F.G.’s claim that the juvenile court failed to properly weigh and balance all of the criteria when reaching its decision.

For these reasons, we conclude that the juvenile court’s transfer decision does not permit meaningful appellate review because the juvenile court did not “clearly and explicitly ‘articulate its evaluative process’ by detailing ‘how it weighed the evidence’ and by ‘identify[ing] the specific facts which persuaded the court’ to reach its decision.” (C.S., supra, __ Cal.App.4th __ [2018 Cal.App. Lexis 1126 at *29].)

C. Prejudice

“[T]he failure to provide an adequate statement of reasons for a transfer decision will not always require reversal.” (C.S., supra, __ Cal.App.4th __ [2018 Cal.App. Lexis 1126 at *43].) Such a failure may be harmless beyond a reasonable doubt where there was “overwhelming evidence” supporting the juvenile court’s decision. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 722-723 (Chi Ko Wong), overruled on other grounds by People v. Green (1980) 27 Cal.3d 1, 33-34.)

In Chi Ko Wong, the charged crime involved an armed robbery where the minor wielded a pistol; “[a] gunshot was heard” as the minor fled from the establishment while pursued by one of its employees; and the employee later died from a gunshot wound. (Chi Ko Wong, supra, 18 Cal.3d at p. 707.) The probation report prepared for the fitness hearing revealed that the minor was “associated with a major San Francisco Chinese youth gang” that recruited him “to act as a ‘hit-man’ ”; the minor had been charged in separate proceedings with possession of stolen property and an illegal knife; and the minor was “suspected of involvement in two Chinese gang homicides.” (Id. at p. 708.) The report also stated that “while [the minor] had minimal police contact, authorities considered him to be highly sophisticated; [the minor] had not been in school for some time and . . . appeared to give little more than lip service to the prospect of returning to school or seeking job training; [the minor’s] father was completely unable to set standards or controls for him; [the minor] had virtually emancipated himself from the home of his parents; . . . [the minor] was suspected of involvement in another shooting in Los Angeles; and . . . four handguns and three shotguns were found in [the minor’s] residence at the time of his arrest.” (Ibid.) The Supreme Court determined based on the “overwhelming evidence” that the juvenile court’s failure to provide a statement of reasons for its decision to deny juvenile court retention was harmless beyond a reasonable doubt. (Id. at pp. 722-723.)

In contrast, here, we do not determine that the evidence supporting the juvenile court’s transfer decision was “overwhelming.” (Chi Ko Wong, supra, 18 Cal.3d at p. 722.) “Most significant to our decision is the criterion regarding [F.G.’s] potential for rehabilitation prior to the expiration of the juvenile court’s jurisdiction. (§ 707(a)(2)(B)(i).)” (C.S., supra, __ Cal.App.4th __ [2018 Cal.App. Lexis 1126 at *45].) Based on the amendment to section 1769, subdivision (d)(2), F.G. could now be held in DJF until age 25, which at this point would equate to over five years there. Although there was evidence presented at the transfer hearing that F.G. continued his gang allegiance while incarcerated in juvenile hall, there was also evidence that F.G. was participating in and amenable to programming. The probation officer testified that five years in DJF would not be enough time to rehabilitate F.G. based on his level of criminality and the circumstances of the charged offense, but Dr. Shaw opined that F.G. could be rehabilitated by age 23 and Ugarkovich opined that F.G. could be rehabilitated in an approximately four-year commitment to DJF.

Similarly, with respect to F.G.’s criminal sophistication (§ 707(a)(2)(A)(i)) and the success of previous attempts by the juvenile court to rehabilitate F.G. (§ 707(a)(2)(D)(i)), there was evidence that supported a finding that the criteria weighed in favor of transfer and evidence that supported a finding the criteria weighed against it. For example, F.G. exhibited criminal sophistication when he denied involvement with the KVT and when he had a companion clean and dispose of the murder weapon, but his sophistication was also impacted by childhood trauma, gang-infested neighborhoods, and an underdeveloped brain (§ 707(a)(2)(A)(ii)). Regarding the success of previous rehabilitative efforts, there was evidence that F.G. received extensive non-custodial rehabilitative services, but also evidence that those services were not adequate to address all of his needs, such as his need for mental health treatment (§ 707(a)(2)(D)(ii)).

“[O]n this record, the juvenile court’s failure to clearly and explicitly ‘articulate its evaluative process,’ by detailing ‘how it weighed the evidence’ and by ‘identify[ing] the specific facts which persuaded the court’ to reach its decision [citation], was not harmless beyond a reasonable doubt [citation].” (C.S., supra, Cal.App.4th [2018 Cal.App. Lexis 1126 at *47].) We therefore determine that it is necessary to remand this matter to the juvenile court for further findings that are consistent with the requirements set forth in this opinion. The juvenile court should also reconsider the matter in light of the current version of section 1769 and make additional findings as to the section 707(a)(2) criteria in order to permit meaningful appellate review. We express no opinion as to the result the juvenile court should reach on remand.

IV. Disposition

Let a peremptory writ of mandate issue directing respondent court to (1) vacate its January 10, 2018 order transferring the matter to adult/criminal court, (2) reconsider the matter in light of the current version of Welfare and Institutions Code section 1769, and (3) issue further findings on the motion to transfer to ensure that its decision permits meaningful appellate review. This opinion is made final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The temporary stay order shall remain in effect until this decision is final.