BILL ANALYSIS
AB 743
Page A
Date of Hearing: January 10, 2006
Counsel: Steven Meinrath
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 743 (Strickland) - As Amended: April 20, 2005
FOR VOTE ONLY
SUMMARY : Expands the list of offenses which, when alleged
against a minor age 16 or older, allows the prosecutor to charge
the case directly in adult court and, when alleged against a
minor age 14 or older, creates a presumption that the minor
should be tried as an adult by adding rape of an unconscious
person to that list.
EXISTING LAW :
1)States that the purpose of juvenile court law is to provide
for the protection and safety of the public and each minor
under the jurisdiction of the court and to preserve and
strengthen family ties when possible, as specified. [Welfare
and Institutions Code (WIC) Section 202 (a).] "Minors under
the jurisdiction of the juvenile court as a consequence of
delinquent conduct shall, in conformity with the interests of
public safety and protection, receive care, treatment, and
guidance that is consistent with their best interest, that
holds them accountable for their behavior, and that is
appropriate for their circumstances. This guidance may
include punishment that is consistent with the rehabilitative
objectives of this chapter." [WIC Section 202(b).]
2)Provides a process for the juvenile court to determine whether
minors who are 14 years of age and older and alleged to have
committed a crime are fit or unfit for juvenile court. [WIC
Section 707.] Depending upon the age of the minor, the
alleged offense and the minor's offense history, the minor may
or may not be presumed unfit for juvenile court; where a minor
is presumed to be unfit for juvenile court, the burden of
rebutting the presumption is on the minor, to demonstrate by a
preponderance of the evidence. ( Id .; See also California
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Rules of Court, Rule 1483.]
3)Provides that in any case where the juvenile court determines
fitness, the court must examine whether the minor would or
would not be amenable to the care, treatment, and training
program available through 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 offenses alleged in
the petition to have been committed by the minor. [WIC
Section 707(a)(1) and (2); WIC Section 707(c).]
4)Establishes a list of thirty offense categories, commonly
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referred to as "707(b) offenses."<1> Provides that, if a
minor, 16-years-old or older, is alleged to have committed one
of these 707(b) offenses, the prosecutor may file the case
directly in adult criminal court and the minor will be tried
as an adult. [WIC Section 707(d)(1).] If a minor is
14-years-old or older and is alleged to have committed one of
these 707(b) offenses, there is a presumption that the minor
should be tried as an adult and, if the minor cannot rebut
that presumption, he or she will be tried in adult criminal
court. [WIC Section 707(c).]
5)Provides, as established by Proposition 21, a system for
deferred entry of judgment in juvenile court cases, as
specified, which essentially requires the minor's consent to
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<1>WIC section 707(b) offenses are the following: (1) murder;
(2) arson, as specified; (3) robbery; (4) rape with force or
violence or threat of great bodily harm; (5) sodomy by force,
violence, duress, menace, or threat of great bodily harm; (6)
lewd or lascivious act with a child under age 14, as specified;
(7) oral copulation by force, violence, duress, menace, or
threat of great bodily harm; (8) forcible sexual penetration, as
specified; (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) specified crimes against
older or physically disabled persons, as specified; (17)
specified firearm offenses; (18) any felony offense in which the
minor personally used a weapon, as specified; (19) specified
felonies involving victim intimidation; (20) manufacturing,
compounding, or selling one-half ounce or more of any salt or
solution of a controlled substance, as specified; (21) any
violent felony, as specified; (22) escape, by the use of force
or violence, from any county juvenile hall, home, ranch, camp,
or forestry camp, as specified, where great bodily injury is
intentionally inflicted upon an employee of the juvenile
facility during the commission of the escape; (23) torture, as
specified; (24) aggravated mayhem, as specified; (25)
carjacking, as specified, while armed with a dangerous or deadly
weapon; (26) kidnapping, as specified; (27) kidnapping relating
to carjacking, as specified; (28) specified offenses involving
firearms in vehicles; (29) specified crimes involving explosive
devices; and, (30) voluntary manslaughter, as specified.
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admit each allegation made by the prosecutor knowing that,
upon the successful completion specified requirements (see #6,
below), the court shall dismiss the charge or charges against
the minor. [WIC Section 790 et seq.]
6)Provides that, in connection with the deferred entry of
judgment program, the court may order the probation department
to investigate the defendant's age, maturity, educational
background, family relationships, demonstrable motivation,
treatment history, if any, and other mitigating and
aggravating factors in determining whether the minor is a
person who would be benefited by education, treatment, or
rehabilitation. The probation department shall report its
findings and recommendations to the court. The court shall
make the final determination regarding education, treatment,
and rehabilitation of the minor. [WIC Section 791(b).]
7)Provides that minors charged with 707(b) offenses are
ineligible for participation in the "deferred entry of
judgment program." [Penal Code Section 790(a)(2).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Background: Jurisdiction over Minors Alleged to Have
Committed Crimes : California law generally provides that
persons under the age of 18 alleged to have committed a crime
are within the jurisdiction of the juvenile court.<2>
However, California law contains three discrete mechanisms for
remanding minors to adult criminal court:
a) A statutory or legislative waiver requires that minors
14 years and age or older who are alleged to have committed
specified murder and sex offenses be prosecuted in adult
criminal court [WIC Section 602(a)];
b) A prosecutorial waiver gives prosecutors the discretion
to file cases against minors 14 and older, depending upon
their age, alleged offense and offense history, in juvenile
or adult criminal court [WIC Section 707(d)]; and,
c) A judicial waiver gives courts the discretion to
--------------------------
<2>An amendment in 1971 lowered the jurisdictional age from 21
to 18. (1971 Cal. Stats. 3766, c. 1748, Section 66.)
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evaluate whether a minor is unfit for juvenile court based
on specified criteria. [WIC Section 707 (a), (b) and (c).]
Prior to 2000, California was strictly a judicial waiver
state; any minor tried in adult criminal court first had to be
found unfit by the juvenile court. In 1999, SB 334 (Alpert),
Chapter 996, Statutes of 1999, introduced statutory waiver in
California for certain murder and sex offenses personally
committed by a minor 14 years of age or older. On March 7,
2000, most provisions of SB 334 were chaptered out by the
passage of Proposition 21, which enacted the waiver structure
described above that is current law.
2)707(b) Change - Trying Minors in Adult Court : As noted above,
California law, as revised by Proposition 21 in 2000, provides
three discrete avenues for trying children 14 years of age or
older in adult criminal court: a statutory waiver, under
which certain crimes committed by children who have reached a
minimum age (14 years) are statutorily excluded from the
jurisdiction of the juvenile court (WIC Section 602); a
judicial waiver where the court determines, depending upon the
age of the minor, the alleged offense and the minor's offense
history, that a minor is unfit for juvenile court [WIC Section
707(a), (b) and (c)]; and prosecutorial waiver where, again
based on the minor's age, alleged offenses and offense
history, the prosecutor has the discretion to file an
accusatory pleading directly in criminal court. [WIC Section
707(d).]
WIC Section 707(b) sets forth the list of offenses (detailed in
Footnote #1) which, when charged against a minor who is 16 or
older, permit the prosecutor to file the case directly in
adult court. If the prosecutor charges a 707(b) offense
against a minor who is age 14 or older, a juvenile court judge
will hold a "fitness hearing" to determine whether the minor
is appropriate to remain in juvenile court's jurisdiction or
be tried as an adult; but there is a presumption that the
minor should be tried in adult court. The burden is on the
minor, in such cases, to present sufficient evidence to
overcome that presumption.
This bill would expand the list of 707(b) offenses to include
rape of an unconscious person. Should the list of 707(b)
offenses be expanded to include a sexual offense by a minor
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where the victim may well be another minor and a person with
whom the offender has an ongoing sexual relationship?
3)Trying Juvenile Sex Offenders as Adults : As stated above, one
effect of placing an offense on the list of 707(b) offenses is
that it allows a minor charged with that offense to be tried
more readily in adult court. Another effect is that it
excludes the minor from the "deferred entry of judgment"
program whereby the minor, with the consent of the court and
prosecutor, may admit the allegations; take part in court
ordered treatment or rehabilitation programs; and, upon
successful completion of these programs, have the charges
dismissed. [WIC Sections 790, et seq.]
Existing law states that the purpose of the juvenile law is to
both protect public safety and to provide young offenders with
"care, treatment, and guidance that is consistent with their
best interest, that holds them accountable for their behavior,
and that is appropriate for their circumstances." [WIC
Section 202(b).] The same objectives do not apply to minors
tried in adult court. Should the Legislature limit or remove
discretion from the juvenile court to consider the facts and
circumstances surrounding the alleged offense, as well as the
accused minor's circumstances, and possibly conclude that the
minor is salvageable?
According to a fact sheet prepared in 2002 by the American
Prosecutors Research Institute, research indicates that
"(a)dolescent sex offenders are significantly different from
adult sex offenders in several ways:
"Adolescent sex offenders are considered to be more responsive
to treatment than adult offenders and do not appear to
continue re-offending into adulthood, especially when provided
with appropriate treatment. Adolescent sex offenders have
fewer numbers of victims than adult offenders and, on average,
engage in less serious and aggressive behaviors. Most
adolescents do not have deviant sexual arousal and/or deviant
sexual fantasies that many adult sex offenders have. Most
adolescents are not sexual predators nor do they meet the
accepted criteria for pedophilia. Few adolescents appear to
have the same long-term tendencies to commit sexual offenses
as some adult offenders. Across a number of treatment
research studies, the overall sexual recidivism rate for
adolescent sex offenders is low, generally under 11%.
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Adolescent offenders against children tend to have slightly
lower sexual recidivism rates than adolescents who rape other
teens. Adolescent sex offender rates for sexual re-offenses
(5% to 14%) are substantially lower than their rates of
recidivism for other delinquent behavior (8% to 58%).
* * *
"Adolescent sex offenders should be subjected to the normal
juvenile probation supervision requirements.
"Most adolescent sex offenders pose a manageable level of risk
to the community. They can be safely maintained in the
community under supervision by probation officers and be
treated in outpatient treatment programs. However, a minority
pose a danger to the community and require residential or
custodial placement to ensure safety.
"It is important to identify higher risk youth in order to make
the most effective placement decisions. There is currently no
scientifically validated system or test to determine exactly
which adolescent sex offenders pose a high risk for
recidivism. Mental health professionals and treatment staff
typically overestimate the possibility of recidivism in
evaluations, labeling far more teenagers as high risk than is
actually accurate. In predicting risk to the community, it is
usually appropriate to assume that an adolescent sex offender
is relatively low risk unless there is significant evidence to
suggest otherwise. Low risk does not imply the absence of
risk, and low-risk offenders still need supervision and
treatment. The following factors are important to consider in
evaluating risk:
a) "A history of multiple sexual offenses, especially if
any occurs after adequate treatment.
b) "A history of repeated non-sexual juvenile offenses.
c) "Clear and persistent sexual interest in children.
d) "Failure to comply with an adolescent sexual offender
treatment program. Self-evident risk signs such as
out-of-control behavior, statements of intent to re-offend,
etc.
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e) "Family resistance regarding supervision and compliance
(e.g., the youth needs to be supervised by appropriate
adults in the home and community and the adults need to
make certain the youth complies with probation and
treatment requirements) . . . . <3>
On the questions of whether accused minors should be tried as
adults and whether accused minors should be excluded from the
possibility of receiving rehabilitation and treatment under
the deferred entry of judgment program, members may wish to
consider whether the discretion allowed under existing law, as
modified in 2000 by Proposition 21, is appropriate and
sufficiently promotes and protects public safety or, in the
alternative, whether the law should be changed to restrict or
remove discretion with respect to these kinds of cases.
4)Arguments in Opposition :
a) The California Attorneys for Criminal Justice (CACJ)
state, "CACJ has long opposed having juveniles treated as
adults in the criminal justice system. The experiences of
our many members who represent juveniles show that the
supervision and rehabilitation options available to minors
in juvenile courts can make a difference for young
offenders. The options available to judges in juvenile
court allow them to fashion an appropriate sentence that
offers the highest chance of rehabilitation. Merely adding
new offenses to the list of crimes that remove sentencing
options from the court is counterproductive to juvenile
justice and public safety."
b) The Youth Law Center states, "According to the National
Youth Risk Behavior Survey, youth regularly engage in risky
sexual activity. Nearly one-half of youth in high schools
have had sexual intercourse. An alarming 25.4% of the
sexually active youth reported using alcohol or other drugs
during their last sexual experience. The line between
consensual and nonconsensual sexual activity, particularly
for intoxicated minors, is incredibly blurry.
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<3>What Research Shows About Adolescent Sex Offenders, American
Prosecutors Research Institute, National District Attorneys
Association (Volume V, November 2, 2002) (citations omitted).
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"We do not condone or excuse inappropriate sexual behavior;
however, juvenile sexual offending is a serious problem
that can be overcome. Studies by the federal Office of
Juvenile Justice and Delinquency Prevention in the report,
'Juveniles Who Have Sexually Offended: A Review of the
Professional Literature', have found that a substantial
proportion of these juveniles desist from committing sex
offenses following the initial disclosed offense and
intervention. We believe that by keeping the youth in the
juvenile justice system and providing the necessary
services, youth can learn appropriate behavior.
"Under current law, prosecutors who believe the minor is not
amenable to treatment have the ability to request the
transfer in juvenile court under WIC Section 707(a). This
provision allows juvenile court judges to take an
individualized look at the youth, the circumstances
surrounding the offense, and the potential for
rehabilitation before transferring the case to adult
criminal court. In some situations, judges will determine
that the youth should be transferred to the adult. In
others, judges will determine the youth can be reformed.
"We are also opposed to adding this crime to the list of
707(b) offenses because of the collateral consequences that
result in this designation, including: (a) offenses listed
in 707(b) are considered prior felony convictions for the
purpose of sentence enhancement (Penal Code Section
1170.2); (b) youth are precluded from the complete range of
programming options and placements (WIC Code Section 654.3,
727, 1732.6); and, (c) juvenile court records are precluded
from being sealed (WIC Section 781).
"Californians are better served if juvenile courts have the
ability to consider each case and limit adult court
handling to cases where the record shows that
rehabilitative efforts are not likely to succeed. For
youth who are reformed, they should be allowed to move
forward without the stigma of a 707(b) offense on their
records."
REGISTERED SUPPORT/OPPOSITION :
Support
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California District Attorneys Association
California Peace Officers' Association
Peace Officers Research Association of California
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Youth Law Center
Analysis Prepared by : Steven Meinrath / PUB. S. / (916)
319-3744