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)SubdivisionExcept 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)InExcept 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)ThisExcept 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.