BILL NUMBER: SB 1293	INTRODUCED
	BILL TEXT


INTRODUCED BY  Senator Schiff

                        FEBRUARY 28, 1997

   An act to amend Sections 602 and 707 of the Welfare and
Institutions Code, relating to minors.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1293, as introduced, Schiff.  Minors:  trial as adult.
   Existing law makes a minor who is under 18 years of age subject to
the jurisdiction of the juvenile court when he or she commits a
violation of a criminal offense, except that the court may hold a
hearing to determine if the minor is a fit and proper subject to be
dealt with under the juvenile court law.  If the minor is found to be
a fit and proper subject to be dealt with under the juvenile court
law, a prosecuting attorney may file charges against the minor in a
court of criminal jurisdiction.
   This bill would require a minor who is 14 years of age or older
who personally committed murder or forcible rape to be prosecuted in
a court of criminal jurisdiction and would delete those offenses from
being subject to a fitness hearing review.  The bill would also
establish procedures for the prosecution of minors who are 14 years
of age or older committing specified offenses in nonconfidential
proceedings in the juvenile court.  The procedures would be the same
as those employed in a court of criminal jurisdiction.  The bill
would require the court, upon a guilty plea or a finding of guilt, to
declare the minor a ward and commit him or her to a secure juvenile
facility, or suspend entry of an adult criminal conviction, and
suspend the imposition of a criminal sentence, as provided.  The
minor would be given specified rights in those proceedings, including
the right to trial by jury.  Because the bill would impose increased
duties on local criminal justice systems that are equivalent to
those imposed by the establishment of a new crime, the bill would
create a state-mandated local program.
  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state.  Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 602 of the Welfare and Institutions Code is
amended to read:
   602.   Any   (a) Except as provided in
subdivision (b), any  person who is under the age of 18 years
when he violates any law of this state or of the United States or any
ordinance of any city or county of this state defining crime other
than an ordinance establishing a curfew based solely on age, is
within the jurisdiction of the juvenile court, which may adjudge such
person to be a ward of the court.  
   (b) Any minor who is 14 years of age or older shall be prosecuted
in a court of criminal jurisdiction for the following:
   (1) Murder in the first or second degree, in the case where the
minor personally killed the person.
   (2) Rape with force or violence or threat of great bodily harm, in
the case where the minor personally committed the offense. 
  SEC. 2.  Section 707 of the Welfare and Institutions Code is
amended to read:
   707.  (a) In any case in which a minor is alleged to be a person
described in  Section 602 by reason of the violation, when he or she
was 16 years of age or older, of any criminal statute or ordinance
except those listed in subdivision (b), upon motion of the petitioner
made prior to the attachment of jeopardy the court shall cause the
probation officer to investigate and submit a report on the
behavioral patterns and social history of the minor being considered
for a determination of unfitness.  Following submission and
consideration of the report, and of any other relevant evidence which
the petitioner or the minor may wish to submit, the juvenile court
may find that the minor is not a fit and proper subject to be dealt
with under the juvenile court law if it concludes that the minor
would not be amenable to the care, treatment, and training program
available through the facilities of the juvenile court, based upon an
evaluation of the following criteria:
   (1) The degree of criminal sophistication exhibited by the minor.

   (2) Whether the minor can be rehabilitated prior to the expiration
of the juvenile court's jurisdiction.
   (3) The minor's previous delinquent history.
   (4) Success of previous attempts by the juvenile court to
rehabilitate the minor.
   (5) The circumstances and gravity of the offense alleged in the
petition to have been committed by the minor.
   A determination that the minor is not a fit and proper subject to
be dealt with under the juvenile court law may be based on any one or
a combination of the factors set forth above, which shall be recited
in the order of unfitness.  In any case in which a hearing has been
noticed pursuant to this section, the court shall postpone the taking
of a plea to the petition until the conclusion of the fitness
hearing, and no plea which may already have been entered shall
constitute evidence at the hearing.
   (b)  Subdivision   Except as provided in
subdivision (f), subdivision  (c) shall be applicable in any
case in which a minor is alleged to be a person described in Section
602 by reason of the violation, when he or she was 16 years of age or
older, of one of the following offenses:
   (1) Murder  , except as provided in subdivision (b) of Section
602  .
   (2) Arson, as provided in subdivision (a) or (b) of Section 451 of
the Penal Code.
   (3) Robbery while armed with a dangerous or deadly weapon.
   (4) Rape with force or violence or threat of great bodily harm
 , except as provided in subdivision (b) of Section 602  .
   (5) Sodomy by force, violence, duress, menace, or threat of great
bodily harm.
   (6) Lewd or lascivious act as provided in subdivision (b) of
Section 288 of the Penal Code.
   (7) Oral copulation by force, violence, duress, menace, or threat
of great bodily harm.
   (8) Any offense specified in subdivision (a) of Section 289 of the
Penal Code.
   (9) Kidnapping for ransom.
   (10) Kidnapping for purpose of robbery.
   (11) Kidnapping with bodily harm.
   (12) Attempted murder.
   (13) Assault with a firearm or destructive device.
   (14) Assault by any means of force likely to produce great bodily
injury.
   (15) Discharge of a firearm into an inhabited or occupied
building.
   (16) Any offense described in Section 1203.09 of the Penal Code.
   (17) Any offense described in Section 12022.5 of the Penal Code.
   (18) Any felony offense in which the minor personally used a
weapon listed in subdivision (a) of Section 12020 of the Penal Code.

   (19) Any felony offense described in Section 136.1 or 137 of the
Penal Code.
   (20) Manufacturing, compounding, or selling one-half ounce or more
of any salt or solution of a controlled substance specified in
subdivision (e) of Section 11055 of the Health and Safety Code.
   (21) Any violent felony, as defined in subdivision (c) of Section
667.5 of the Penal Code, which would also constitute a felony
violation of subdivision (b) of Section 186.22 of the Penal Code.
   (22) Escape, by the use of force or violence, from any county
juvenile hall, home, ranch, camp, or forestry camp in violation of
subdivision (b) of Section 871 where great bodily injury is
intentionally inflicted upon an employee of the juvenile facility
during the commission of the escape.
   (23) Torture as described in Sections 206 and 206.1 of the Penal
Code.
   (24) Aggravated mayhem, as described in Section 205 of the Penal
Code.
   (25) Carjacking, as described in Section 215 of the Penal Code,
while armed with a dangerous or deadly weapon.
   (26) Kidnapping, as punishable in subdivision (d) of Section 208
of the Penal Code.
   (27) Kidnapping, as punishable in Section 209.5 of the Penal Code.

   (28) The offense described in subdivision (c) of Section 12034 of
the Penal Code.
   (29) The offense described in Section 12308 of the Penal Code.
   (c) With regard to a minor alleged to be a person described in
Section 602 by reason of the violation, when he or she was 16 years
of age or older, of any of the offenses listed in subdivision (b),
upon motion of the petitioner made prior to the attachment of
jeopardy the court shall cause the probation officer to investigate
and submit a report on the behavioral patterns and social history of
the minor being considered for a determination of unfitness.
Following submission and consideration of the report, and of any
other relevant evidence which the petitioner or the minor may wish to
submit the minor shall be presumed to be not a fit and proper
subject to be dealt with under the juvenile court law unless the
juvenile court concludes, based upon evidence, which evidence may be
of extenuating or mitigating circumstances, that the minor would be
amenable to the care, treatment, and training program available
through the facilities of the juvenile court based upon an evaluation
of each of the following criteria:
   (1) The degree of criminal sophistication exhibited by the minor.

   (2) Whether the minor can be rehabilitated prior to the expiration
of the juvenile court's jurisdiction.
   (3) The minor's previous delinquent history.
   (4) Success of previous attempts by the juvenile court to
rehabilitate the minor.
   (5) The circumstances and gravity of the offenses alleged in the
petition to have been committed by the minor.
   A determination that the minor is a fit and proper subject to be
dealt with under the juvenile court law shall be based on a finding
of amenability after consideration of the criteria set forth above,
and findings therefor recited in the order as to each of the above
criteria that the minor is fit and proper under each and every one of
the above criteria.  In making a finding of fitness, the court may
consider extenuating or mitigating circumstances in evaluating each
of the above criteria.  In any case in which a hearing has been
noticed pursuant to this section, the court shall postpone the taking
of a plea to the petition until the conclusion of the fitness
hearing and no plea which may already have been entered shall
constitute evidence at the hearing.
   (d) (1)  In   Except as provided in
subdivision (f), in  any case in which a minor is alleged to be
a person described in Section 602 by reason of the violation, when he
or she had attained the age of 14 years but had not attained the age
of 16 years, of any of the offenses set forth in paragraph (2), upon
motion of the petitioner made prior to the attachment of jeopardy
the court shall cause the probation officer to investigate and submit
a report on the behavioral patterns and social history of the minor
being considered for a determination of unfitness.  Following
submission and consideration of the report, and of any other relevant
evidence that the petitioner or the minor may wish to submit, the
juvenile court may find that the minor is not a fit and proper
subject to be dealt with under the juvenile court law if it concludes
that the minor would not be amenable to the care, treatment, and
training program available through the facilities of the juvenile
court, based upon an evaluation of the following criteria:
   (A) The degree of criminal sophistication exhibited by the minor.

   (B) Whether the minor can be rehabilitated prior to the expiration
of the juvenile court's jurisdiction.
   (C) The minor's previous delinquent history.
   (D) Success of previous attempts by the juvenile court to
rehabilitate the minor.
   (E) The circumstances and gravity of the offense alleged in the
petition to have been committed by the minor.
   A determination that the minor is not a fit and proper subject to
be dealt with under the juvenile court law may be based on any one or
a combination of the factors set forth above, which shall be recited
in the order of unfitness.  In any case in which a hearing has been
noticed pursuant to this subdivision, the court shall postpone the
taking of a plea to the petition until the conclusion of the fitness
hearing, and no plea that may already have been entered shall
constitute evidence at the hearing.
   (2) Paragraph (1) shall be applicable in any case in which a minor
is alleged to be a person described in Section 602 by reason of the
violation, when he or she had attained the age of 14 years but had
not attained the age of 16 years, of one of the following offenses:
   (A) Murder  , except as provided in subdivision (b) of Section
602  .
   (B) Robbery in which the minor personally used a firearm.
   (C) Rape with force or violence or threat of great bodily harm
 , except as provided in subdivision (b) of Section 602  .
   (D) Sodomy by force, violence, duress, menace, or threat of great
bodily harm.
   (E) Oral copulation by force, violence, duress, menace, or threat
of great bodily harm.
   (F) The offense specified in subdivision (a) of Section 289 of the
Penal Code.
   (G) Kidnapping for ransom.
   (H) Kidnapping for purpose of robbery.
   (I) Kidnapping with bodily harm.
   (J) Kidnapping, as punishable in subdivision (d) of Section 208 of
the Penal Code.
   (K) The offense described in subdivision (c) of Section 12034 of
the Penal Code, in which the minor personally used a firearm.
   (L) Personally discharging a firearm into an inhabited or occupied
building.
   (M) Manufacturing, compounding, or selling one-half ounce or more
of any salt or solution of a controlled substance specified in
subdivision (e) of Section 11055 of the Health and Safety Code.
   (N) Escape, by the use of force or violence, from any county
juvenile hall, home, ranch, camp, or forestry camp in violation of
subdivision (b) of Section 871 where great bodily injury is
intentionally inflicted upon an employee of the juvenile facility
during the commission of the escape.
   (O) Torture, as described in Section 206 of the Penal Code.
   (P) Aggravated mayhem, as described in Section 205 of the Penal
Code.
   (Q) Assault with a firearm in which the minor personally used the
firearm.
   (R) Attempted murder.
   (S) Rape in which the minor personally used a firearm.
   (T) Burglary in which the minor personally used a firearm.
   (U) Kidnapping in which the minor personally used a firearm.
   (V) The offense described in Section 12308 of the Penal Code.
   (W) Kidnapping, in violation of Section 209.5 of the Penal Code.
   (X) Carjacking, in which the minor personally used a firearm.
   (e)  This   Except as provided in subdivision
(f), this  subdivision shall apply to a minor alleged to be a
person described in Section 602 by reason of the violation, when he
or she had attained the age of 14 years but had not attained the age
of 16 years, of the offense of murder in which it is alleged in the
petition that one of the following exists:
   (1)  In the case of murder in the first or second degree,
the minor personally killed the victim.
   (2)  In the case of murder in the first or second degree,
the minor, acting with the intent to kill the victim, aided,
abetted, counseled, commanded, induced, solicited, requested, or
assisted any person to kill the victim.  
   (3)  
   (2)  In the case of murder in the first degree, while not the
actual killer, the minor, acting with reckless indifference to human
life and as a major participant in a felony enumerated in paragraph
(17) of subdivision (a) of Section 190.2, or an attempt to commit
that felony, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted in the commission or attempted
commission of that felony and the commission or attempted commission
of that felony or the immediate flight therefrom resulted in the
death of the victim.
   Upon motion of the petitioner made prior to the attachment of
jeopardy, the court shall cause the probation officer to investigate
and submit a report on the behavioral patterns and social history of
the minor being considered for a determination of unfitness.
Following submission and consideration of the report, and of any
other relevant evidence which the petitioner or the minor may wish to
submit, the minor shall be presumed to be not a fit and proper
subject to be dealt with under the juvenile court law unless the
juvenile court concludes, based upon evidence, which evidence may be
of extenuating or mitigating circumstances, that the minor would be
amenable to the care, treatment, and training program available
through the facilities of the juvenile court based upon an evaluation
of each of the following criteria:
   (A) The degree of criminal sophistication exhibited by the minor.

   (B) Whether the minor can be rehabilitated prior to the expiration
of the juvenile court's jurisdiction.
   (C) The minor's previous delinquent history.
   (D) Success of previous attempts by the juvenile court to
rehabilitate the minor.
   (E) The circumstances and gravity of the offenses alleged in the
petition to have been committed by the minor.
   A determination that the minor is a fit and proper subject to be
dealt with under the juvenile court law shall be based on a finding
of amenability after consideration of the criteria set forth above,
and findings therefor recited in the order as to each of the above
criteria that the minor is fit and proper under each and every one of
the above criteria.  In making a finding of fitness, the court may
consider extenuating or mitigating circumstances in evaluating each
of the above criteria.  In any case in which a hearing has been
noticed pursuant to this section, the court shall postpone the taking
of a plea to the petition until the conclusion of the fitness
hearing and no plea which may already have been entered shall
constitute evidence at the hearing.  
   (f) Notwithstanding any other provision of law, if the court makes
a finding of probable cause that a minor who is 14 years of age or
older committed any of the offenses in subdivision (b), the minor may
be prosecuted for the criminal offense in the juvenile court under
the same procedures that apply in a court of criminal jurisdiction,
except that upon a plea of guilty or a conviction, the court shall
suspend entry of the criminal conviction and any sentence shall be
suspended on condition that the minor be adjudged as a ward of the
court under Section 602 and ordered to comply with any dispositional
order of the court.  Following submission and consideration of a
probation report, and of any other relevant evidence, the court shall
make both of the following dispositional orders:
   (1) Declare the minor a ward of the juvenile court pursuant to
Section 602, and enter a dispositional order committing the ward to
the Department of the Youth Authority (subject to the age eligibility
requirements set forth in Section 733), or to a comparably secure
county or private, licensed juvenile facility, to remain under
supervision for a specified time of not less than three years.
   (2) Suspend both the entry of criminal conviction and the
imposition of sentence appropriate under the Penal Code for the
sustained offense.  The entry of criminal conviction and imposition
of sentence shall remain suspended, on the condition that the ward
complies with the provisions of the dispositional order made pursuant
to paragraph (1) and does not commit a new offense during the
applicable period of supervision set forth in paragraph (1).
   (g) All of the rights and privileges applicable to one who is
accused of, or prosecuted for, a criminal violation of law shall
apply to a minor prosecuted under subdivision (f), including, but not
limited to, the right to release on bail, the right to effective
assistance of counsel, the right to a preliminary examination
pursuant to Section 859b of the Penal Code, the right to bring a
motion to set aside the information pursuant to Section 995 of the
Penal Code, the right to a trial by jury, and the right to bring any
and all procedural and substantive challenges available to an adult
defendant.  A prosecution under subdivision (f) is a nonconfidential
proceeding subject to the laws applicable to criminal proceedings.

  SEC. 3.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
   Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.