BILL ANALYSIS                                                                                                                                                                                                    




          SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair
                               2015 - 2016  Regular 

          Bill No:    SB 382        Hearing Date:    May 12, 2015    
          
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          |Author:    |Lara                                                 |
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          |Version:   |April 20, 2015                                       |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|AA                                                   |
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                       Subject:  Juveniles: Fitness Criteria 



          HISTORY

          Source:   Human Rights Watch

          Prior Legislation:SB 1151 (Kuehl) - Vetoed, 2004

          Support:  The Anti-Recidivism Coalition; Alliance for Boys and  
                    Men of Color; Annie E. Casey Foundation Juvenile  
                    Justice Strategy Group; Asian Americans Advancing  
                    Justice - Asian Law Caucus; Asian Americans Advancing  
                    Justice - Los Angeles; California Catholic  
                    Conference; California Public Defenders Association;  
                    Californians United for a Responsible Budget;  
                    Campaign for Youth Justice; Center on Juvenile and  
                    Criminal Justice; Children Now; Children's Defense  
                    Fund California; East Bay Children's Law Offices;  
                    Ella Baker Center for Human Rights; Friends Committee  
                    on Legislation of California; Los Angeles Regional  













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                    Reentry Partnership; National Center for Youth Law;  
                    National African American Drug Policy Coalition;  
                    National Employment Law Project; Office of  
                    Restorative Justice of the Archdiocese of Los  
                    Angeles; Post-Conviction Justice Project - USC Gould  
                    School of Law; Root and Rebound; Youth Justice  
                    Coalition; Youth Law Center; Policy Link; several  
                    individuals

          Opposition:None known

                                                


          PURPOSE

          The purpose of this bill is to further describe factors the  
          court may consider in determining whether a person is fit or  
          unfit for juvenile court, as specified.

          Current law generally 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.  (Welfare and Institutions Code ("WIC")  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 child, to demonstrate by a preponderance  
          of the evidence.  (Id.; See also Ca. Rules of Court, rule  
          1483.)

          Under current law, 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: 

             1.   The degree of criminal sophistication exhibited by the  
               minor.












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             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.  (WIC  
                707(a)(1); (2); 707(c).)

          This bill would revise these statutory provisions to include  
          discretionary factors the court may consider in making these  
          determinations, as follows:

                 With respect to the degree of criminal sophistication  
               exhibited by the minor (factor #1 above), specify the  
               following in statute:

                   ". . . the juvenile court may consider 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."

                 With respect to whether the minor can be rehabilitated  
               prior to the expiration of the juvenile court's  
               jurisdiction (factor # 2 above), specify the following in  
               statute:

                 ". . .  the juvenile court may consider any  
                 relevant factor, including, but not limited to, the  












          SB 382 (Lara)                                        PageD of 7
                                                                          

                 minor's potential to grow and mature."

                 With respect to the minor's prior delinquent history  
               (factor # 3 above), specify the following in statute:

                  ". . . the juvenile court may consider 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."

                 With respect to the success of previous attempts  
               by the juvenile court to rehabilitate the minor  
               (factor # 4 above), specify the following in statute:

                  " . . .  the juvenile court may consider any  
                  relevant factor, including, but not limited to,  
                  the adequacy of the services previously provided  
                  to address the minor's needs."

                 With respect to the circumstances and gravity of  
               the offense alleged in the petition to have been  
               committed by the minor (factor # 5 above), this bill  
               would specify the following in statute:

                  " . . . the juvenile court may consider any  
                  relevant factor, including, but not limited to,  
                  the level of harm actually caused by the minor,  
                  and the minor's mental and emotional development."

          Current law generally provides that 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 (in current law enumerated  
          above), . . . " (WIC  707.)

          This bill would revise these provisions to state that this  
          determination may be based on any one or a combination of  
          the areas of discretionary consideration added by this  












          SB 382 (Lara)                                        PageE of 7
                                                                          

          bill.

          Current law generally provides a process, termed "reverse  
          remand," under which a minor who has been referred to the  
          adult criminal court for prosecution without a court order  
          that the minor has been found unfit for the juvenile court  
          may be remanded back to the juvenile court if the minor is  
          convicted of a lesser offense, as specified.  (Penal Code  
           1170.17.)

          This bill would incorporate the additional factors  
          described above into this provision, as specified.  This  
          bill would provide that the circumstances and gravity of  
          the offense for which the person has been convicted may  
          include "but is not limited to, consideration of 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."

                 RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United  
          States Supreme Court ruling and federal court orders  
          relating to the state's ability to provide a  
          constitutional level of health care to its inmate  
          population and the related issue of prison overcrowding,  
          this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure  
          that the Legislature does not erode progress in reducing  
          prison overcrowding.   

          On February 10, 2014, the federal court ordered California  
          to reduce its in-state adult institution population to  
          137.5% of design capacity by February 28, 2016, as  
          follows:   

                 143% of design bed capacity by June 30, 2014;












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                 141.5% of design bed capacity by February 28,  
               2015; and,

                 137.5% of design bed capacity by February 28,  
               2016. 

          In February of this year the administration reported that  
          as "of February 11, 2015, 112,993 inmates were housed in  
          the State's 34 adult institutions, which amounts to 136.6%  
          of design bed capacity, and 8,828 inmates were housed in  
          out-of-state facilities.  This current population is now  
          below the court-ordered reduction to 137.5% of design bed  
          capacity."  (Defendants' February 2015 Status Report In  
          Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD  
          PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn.  
          omitted)).

          While significant gains have been made in reducing the  
          prison population, the state now must stabilize these  
          advances and demonstrate to the federal court that  
          California has in place the "durable solution" to prison  
          overcrowding "consistently demanded" by the court.   
          (Opinion Re: Order Granting in Part and Denying in Part  
          Defendants' Request For Extension of December 31, 2013  
          Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The  
          Committee's consideration of bills that may impact the  
          prison population therefore will be informed by the  
          following questions:

              Whether a proposal erodes a measure which has  
               contributed to reducing the prison population;

              Whether a proposal addresses a major area of public  
               safety or criminal activity for which there is no  
               other reasonable, appropriate remedy;

              Whether a proposal addresses a crime which is  
               directly dangerous to the physical safety of others  












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               for which there is no other reasonably appropriate  
               sanction; 

              Whether a proposal corrects a constitutional problem  
               or legislative drafting error; and

              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any  
               other reasonably appropriate remedy.



          COMMENTS

          1.Stated Need for This Bill

          The author states:

               SB 382 would expand the existing fitness criteria  
               used by judges when determining whether a juvenile  
               offender should be tried in juvenile or adult court,  
               so that judges may consider more comprehensive  
               information about the juvenile's ability to  
               rehabilitate. 

               Before the passage of Proposition 21, youth in  
               California were sent to the adult criminal justice  
               system only after having a "fitness" hearing where a  
               judge determined which justice system the youth  
               should be sent to using specified criteria, known as  
               fitness criteria.  Currently judges determine whether  
               a juvenile offender's case should be heard in  
               juvenile or adult court in approximately 25 percent  
               of cases.  The criteria that is used when a fitness  
               hearing does occur is outdated and not based on  
               current law or cognitive science. 

               The decision to send a juvenile to the adult system  
               is a very serious one.  The juvenile court system is  
               focused on rehabilitation and provides far more  












          SB 382 (Lara)                                        PageH of 7
                                                                          

               supports and opportunities for juvenile offenders  
               compared to adult criminal facilities. Recent U.S.  
               and California Supreme court cases, as well as  
               cognitive science has found that juveniles are more  
               able to reform and become productive members of  
               society, if allowed to access the appropriate  
               rehabilitation.

               SB 382 would update the existing 5 criteria used by  
               judges when determining the fitness of an individual  
               to enter the adult criminal justice system to ensure  
               judges consider, such as the actual behavior of the  
               of the individual and their ability to grow, mature,  
               and be rehabilitated.  It is critical that judges  
               have the most relevant information and full picture  
               of an individual, before they make the critical  
               decision of which jurisdiction a juvenile offender  
               should be charged in.

          2.  Background: Jurisdiction Over Minors Alleged to Have  
          Committed Crimes

          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.  (WIC  
           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  202(b).)

          California law generally provides that persons under the  
          age of 18 who are alleged to have committed a crime is  














          SB 382 (Lara)                                        PageI of 7
                                                                          

          within the jurisdiction of the juvenile court.<1>   
          However, California law contains three discrete mechanisms  
          for remanding minors to adult criminal court:

                 Statutory or legislative waiver requires that  
               minors 14 years of age or older who are alleged to  
               have committed specified murder and sex offenses be  
               prosecuted in adult criminal court (WIC  602(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   
               707(d)); and

                 Judicial waiver gives courts the discretion to  
               evaluate whether a minor is unfit for juvenile court  
               based on specified criteria.  (WIC  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) - Ch. 996, Stats. 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.

          3.  Fitness Criteria 

          The fitness criteria set forth in statute are the basis by  
          which the juvenile court evaluates whether a minor is  
          ------------------------

          <1> An amendment in 1971 lowered the jurisdictional age from 21  
          to 18. (1971 Cal. Stats. 3766, c. 1748,  66.)














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          amenable to the care, treatment and training available  
          through the juvenile court.  A minor is not required to  
          establish innocence in order to show amenability to the  
          juvenile court system, and the fact that a minor did  
          commit the charged offense does not automatically require  
          a finding of unfitness.  (People v. Superior Court (Jones)  
          18 Cal.4th 667, 682 (1998).)  A finding of amenability  
          must be based on evidence and supported by findings  
          addressed to each and every one of the criteria.  (Id. at  
          683.)

               Though the standards for determining a minor's  
               fitness for treatment as a juvenile lack explicit  
               definition . . .  it is clear from the statute that  
               the court must go beyond the circumstances  
               surrounding the offense itself and the minor's  
               possible denial of involvement in such offense.  The  
               court may consider a minor's past record of  
               delinquency, and must take into account his behavior  
               pattern as described in the probation officer's  
               report.  (H. v. Superior Court (1970) 3 Cal. 3d 709,  
               714 (citations omitted; emphasis in original.)      

          This bill would add discretionary, non-exclusive  
          considerations for the court to consider in each of the  
          five existing fitness criteria.  None of the  
          considerations proposed by this bill would appear to be  
          inconsistent with the current criteria.

          SHOULD THE CRITERIA FOR DETERMINING WHETHER A MINOR IF FIT  
          OR UNFIT FOR JUVENILE COURT BE FURTHER DESCRIBED IN  
          STATUTE, AS PROPOSED BY THIS BILL?

          

          4.  Support

          The Youth Law Center, which supports this bill, states in  
          part:













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               In our experience, there is tremendous need for  
               clarification of the fitness criteria.  For example,  
               the fifth criterion - the gravity and circumstances  
               of the offense - is often misinterpreted to mean that  
               any person alleged to have committed a serious  
               offense must be found unfit.  But that is not  
               correct.  In fact, even a young person who has  
               committed a serious offense should be retained in  
               juvenile court if he or she is capable of being  
               rehabilitated, using the other fitness criteria.   
               There is tremendous need to clarify this in the  
               statutory criteria.

               Also, since the current fitness criteria were  
               written, there is much more useful guidance on the  
               impact of immaturity and adolescent development on  
               behavior and capacity for change.  A series of  
               Supreme Court cases, culminating in Miller v. Alabama  
               (2012) 567 U.S. ___, ___, 132 S.Ct. 2455, has  
               recognized the importance of considering the  
               hallmarks of youthfulness in making decisions about  
               young people.  This includes issues such as  
               impulsivity, failure to appreciate risks and dangers,  
               and peer pressure.  The Supreme Court cases also  
               highlight the transitory nature of adolescent  
               delinquency - the fact that the vast majority of  
               young people leave delinquency behind as they reach  
               adulthood.























           5. Technical Amendments

          Senate Engrossing and Enrolling has submitted purely  
          technical amendments that it asks the Committee to make.

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