In re H.J.

majority opinion

Filed 10/21/26

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re H.J., a Person Coming Under the

Juvenile Court Law.

THE PEOPLE,

E088015

Plaintiff and Respondent,

(Super.Ct.No. J288470)

OPINION

H.J.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Jessica L. Morgan,

Judge. Affirmed and remanded with directions.

Laura Vavakin, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney

General, Arlene A. Sevidal, Assistant Attorney General, Collette C. Cavalier and

Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In 2009, H.J. and KeAndre Windfield were each convicted of one count of murder

and one count of attempted murder, and assault with a semi-automatic firearm, along with

gun discharge and gang enhancement allegations as to the murder and attempted murder

counts. The charges arose from the shooting of two members of their own gang, the

Ramona Blocc Hustlas, resulting in the death of one of them. Both were sentenced to

prison for 90 years to life. They appealed raising various claims. In the original opinion,

filed August 19, 2014, we affirmed the convictions for both defendants, but reversed

[H.J.]’s sentence pursuant to People v. Gutierrez (2014) 58 Ca1.4th 1354, because, as a

juvenile at the time of the crime, his sentence of 90 years to life was the functional

equivalent of a term of life without the possibility of parole and we directed other

modifications of the sentence and abstracts of judgment.

On November 12, 2014, the California Supreme Court denied both defendants’

petitions for review, but, on its own motion, issued a grant-and-hold of review as to

defendant H.J. for consideration pending review in In re Alatriste, S214652, In re

Bonilla, S214960, and People v. Franklin, S217699. On May 26, 2016, the Supreme

Court issued its decision in People v. Franklin (2016) 63 Ca1.4th 261 (Franklin), and

retransferred this case to our court with directions to vacate our opinion and to reconsider

H.J.’s sentence in light of Franklin. We vacated the original opinion and issued our

second opinion on September 28, 2016, affirming those portions of our original opinion

pertaining to issues not subject to the grant and hold, and reconsidered H.J.’s sentencing

claim in light of Franklin.

Defendants again petitioned for review. This time, the Supreme Court granted

review, deferring further action pending consideration and disposition of a related issue in

People v. Canizales, which was then pending in the Supreme Court. Following the

issuance of that opinion, the Supreme Court retransferred the cases back to this court with

directions to vacate our opinion and to reconsider the cause in light of People v Canizales

(2019) 7 Ca1.5th 591 and People v. Perez (2016) 3 Ca1.App.5th 612, 619. We again

modified the judgment in accordance with the directions of the Supreme Court.

(E055062, People v. Windfield et al., (2020) formerly published at 44 Ca1.App.5th 196.)

Defendants again petitioned for review.

On April 22, 2020, the Supreme Court again granted review, and again transferred

the matter to our court with directions to vacate our decision and reconsider the cause in

light of Senate Bill No. 620 (Stats. 2017, ch. 682). The Supreme Court also de-published

the decision. We then reconsidered H.J.’s conviction in light of Senate Bill No. 620,

another law enacted after the defendants had been convicted of their crimes. We vacated

our opinion pursuant to the Supreme Court’s directions, and re-issued the prior opinion

with further modification in light of the enactment of Senate Bill No. 620, which

modified Penal Code section 12022.53, subdivision (h), to permit a trial court to exercise

its discretion to strike or dismiss a gun discharge enhancement.

In addition, due to the passage of Proposition 57, requiring a juvenile transfer

hearing for certain defendants who were juveniles at the time of the commission of their

crimes, H.J. submitted a supplemental brief arguing he was entitled to retroactive

application of the new law. The People agreed and we directed a limited remand to the

juvenile court to conduct a fitness hearing, as described in People v. Vela (2017) 11

Cal.App.5th 68, 82. After conducting a fitness hearing on an amended wardship petition,

the juvenile court concluded H.J. was not a fit and proper subject to be dealt with under

the juvenile court law. The court struck the firearm enhancements and the gang

allegation from the amended juvenal petition. H.J. appeals.

BACKGROUND

We recite the facts of the controlling offenses as taken from our opinion in People

v. Windfield et al., supra, E055062, with updated procedural matters and using H.J.’s

initials in lieu of his name.1

A. “Facts

“Several months prior to June 2009, Marvin Moore and his best friend, Montoyea

Smith, went to a Ramona Blocc Hustlas (RBH) gang party. Smith got into a fight with

1 H.J.’s brief relies on the probation report for the record facts, but that report’s factual history was based on police reports, which are inadmissible hearsay unless a specific exception applies to each level of hearsay. (Evid. Code, §§ 1200, 1201; People v. Banda (2018) 26 Cal.App.5th 349, 357 [probation reports are not automatically admissible to prove relevant facts, where it includes the officer’s reports of events based on statements of others, unless the officer was a percipient witness]; see People v. Dixon (2026) 118 Cal.App.5th 116, 136 [acknowledging that police reports and the probation special incident report are hearsay because they were created out of court and were offered for the truth of the matter asserted].)

two brothers, Quinn and Lamar Wise, who were also members of RBH, and were

Moore's cousins. Defendant Windfield, also an RBH gang member, stepped in to help the

Wise brothers, and blindsided Smith with a punch. Moore was not actively engaged in

the fight, but he and others separated Smith from Windfield and the Wise brothers.

“On June 11, 2009, there was another RBH gathering at an apartment complex on

East Jackson in Rialto. Ricky Peete, was there with three female companions. After

midnight, Smith, a longtime friend of Peete’s, drove up. Later, Moore pulled up and

approached Smith. Smith was drunk and brought up the fight that had taken place a few

months earlier, expressing anger that Moore had not stepped in to help him. The two men

argued for a while about how Moore had failed him. Smith pulled out a hand gun and

cocked it, stating he wanted to shoot up the Ramona gang’s neighborhood.

“After Smith displayed the gun, a van pulled up and parked across the street from

where Smith and Moore were arguing. The driver was defendant Windfield’s sister,

Jontre Windfield (Jontre). Defendants Windfield and [H.J.] were in the van along with

M. G. (the van’s owner) and her children, and two other RBH gang members. When the

van parked, defendant Windfield got out and began to cross the street. When Smith saw

Windfield, he started yelling that Windfield had jumped him and pointed his gun at

Windfield. Windfield walked at a fast pace back toward the van, as defendant [H.J.] got

out of the vehicle. Smith chased both defendants around the van until the defendants ran

away through an alley.

“Jontre and M. G. exited the van and Jontre yelled at Smith that there were women

and a child in the van. Smith pointed the gun in her face. Moore and Peete intervened,

restraining Smith, and the women got back into the van and drove away as Smith walked

back across the street. Jontre and M. G. then picked up the defendants and another of the

men who had left through the alley. As she drove back to the apartment on East Ramona

Drive, where she and the defendants lived, Jontre told defendants that Smith had pointed

his gun at her and stated several times that Smith had to die. Windfield was angry at

being chased away by Smith and said Smith had to be taken care of that night. After the

van left East Jackson, Smith put his handgun in his car and calmed down.

“Minutes later, when the van arrived at the Ramona Drive residence, everyone

went inside except defendants. [H.J.] and Windfield each retrieved a firearm, took the

keys to the van from its owner, M.G., and left, after Windfield said that they were

returning to East Jackson.

“Meanwhile, at the East Jackson apartment building, the police arrived in response

to a call about a fight, so Moore told Smith to put his gun away. The people who were

out on the street scattered at the arrival of police, leaving Moore and Nikki R. (Nikki),

outside. Moore and Nikki told police that the people involved in the fight had dispersed,

so the officers drove away. Smith then returned to the street where Moore talked to him

for about five minutes before driving away. Then Peete came out and talked to Smith.

“While Peete and Smith were talking, Nikki heard the gate at the back of the

building slam and went to investigate. She saw defendants Windfield and [H.J.] in the

courtyard with guns and she told them they should leave, but they declined. Nikki

walked back towards the front of the building while the defendants stayed in the back.

Nikki told Peete what she had seen, but not Smith. When Smith started walking toward

the back, Nikki and Peete tried to stop him, telling him to go home, but Smith said he

needed to get his marijuana from the back. Peete went with him and they walked

shoulder to shoulder.

“As Smith pushed past Nikki and Peete, defendants stepped forward and began

firing rapidly. Peete and Smith turned and stumbled into each other, and both fell. Peete

was hit in the leg and Smith fell on top of him, bleeding from his midsection. As Peete

and Smith lay on the ground, defendant Windfield stood over them, placed his gun to

Smith’s head, and fired a final shot. Then the defendants left.

“After the defendants left, Peete, who had been shot once in the leg, got up, and

left in the car that Jontre had lent him earlier. Nikki ran into the East Jackson apartment

and told those present that defendants had run from the alley into the apartment courtyard

and shot Smith. Moore left the East Jackson Street apartment complex and drove to the

Windfields’ Ramona Drive residence to apologize to Windfield for Smith’s behavior.

Windfield said Smith was dead, and that ‘he had to go.’ However, Windfield told Moore

that it was [H.J.] who shot Smith, not him. Moore left.

“M.G. was at the Ramona Drive apartment when the [defendants] returned,

approximately one-half hour after they had left with the firearms. [H.J.] asked M. G. to

go to the Hustla Squad hood to drop his clothes off there, in order to implicate the Hustla

Squad in the shooting.[2]

“Afterwards, Windfield and [H.J.] discussed the shooting in the living room.

Windfield said he shot all his bullets at Smith, and [H.J.] demonstrated how he walked

over to Smith after he fell to the ground and shot him in his chest and face, holding the

gun in both hands. During this conversation, Jontre got a call from Peete who told her he

had been shot. Peete arrived at the apartment shortly after the call, limping and bleeding.

Jontre drove Peete first to his mother’s house and then to the hospital. During the drive

to Peete’s mother’s house, Jontre said Smith had to die for putting the gun in her face.

“The next day, at the Ramona Drive apartment, M.G. saw Windfield with Peete,

who was on crutches, outside the apartment. Windfield told Peete they had not intended

to shoot him. Back inside the apartment, Windfield told M. G. ‘he [Smith] had to go,’

because he had Windfield running like a ‘bitch.’

“Smith had been hit by at least 10 shots, six of which would have been fatal

individually, including a shot fired approximately one-half inch from Smith's head. The

cause of death was multiple gunshot wounds. Six bullets were recovered from Smith’s

body, all consistent with .25 caliber bullets. Peete had one bullet wound on the inside of

his right calf. A criminalist who processed the scene hours after the shooting recovered

seven .25 caliber casings and one nine millimeter casing.

2 “In 2008, Windfield was involved in and subsequently convicted of murder and attempted murder in the same gang related incident that led to the Supreme Court’s decision in People v. Canizales, supra, which involved the Hustla Squad.”

“Defendants were each charged with murder (Pen. Code, § 187, subd. (a),

count 1),[3] attempted premeditated and deliberate murder (§§ 664, 187(a), count 2), and

assault with a semiautomatic firearm (§ 245, subd. (b), count 3). It was further alleged

that in the commission of counts 1 and 2, that each defendant personally and intentionally

discharged a firearm causing death (§ 12022.53, subd. (d)), and that as to both defendants

a principal personally and intentionally discharged a firearm which proximately caused

death (§ 12022.53, subds. (d) & (e)(1), as well as an allegation that the murder and

attempted murder were committed for the benefit of, at the direction of, or in association

with a criminal street gang (§ 186.22, subd. (b)(1)(C)). It was further alleged that in the

commission of count 3, the defendants committed the crime for the benefit of a criminal

street gang (§ 186.22, subd. (b)(1)(B)).

“Following a trial by jury, defendants were convicted of all three counts. The jury

set the degree of the murder count respecting Smith at first degree, and found the

attempted murder of Peete was premeditated and deliberate. The jury found the

defendants had personally used and intentionally discharged a firearm causing death

(§ 12022.53, subd. (d)) and that a principal personally discharged a firearm causing death

(§ 12022.53, subds. (d) & (e)(1)). As to both counts 1 and 2, the jury found that

defendants committed them for the benefit of a criminal street gang (§ 186.22,

subd. (b)(1)(C)). The jury also convicted defendants of count 3, assault with a

semiautomatic firearm (§ 245, subd. (b)), during which they personally used a firearm

3 “All further statutory references are to the Penal Code unless otherwise indicated.”

(§ 12022.5, subd. (a)) and which they committed for the benefit of a criminal street gang

(§ 186.22, subd. (b)(1)(B)). The defendants were each sentenced to aggregate

indeterminate terms of 90 years to life on counts 1 and 2, while the term on count 3 was

stayed pursuant to section 654.

“Defendants appealed their convictions and sentences arguing:[4] (1) that the

admission of the preliminary hearing testimony of Nikki impinged on their rights to

confrontation; (2) that their sentences were cruel and unusual given their youth; (3) the

evidence of specific intent to kill was insufficient to support the conviction for attempted

murder on count 2 based on a ‘kill zone’ theory; (4) the court erred in failing to instruct

the jury that provocation could reduce the attempted premeditated murder to attempted

murder; (5) the firearm use and discharge allegations must be stricken as to count 2

because the amended information omitted such enhancements; and (6) clerical errors on

the abstract of judgment required amendment. Separately, [H.J.] argued that (1) the court

failed to pronounce sentence; and (2) he was entitled to additional presentence custody

credits.

“Following the first appeal, we affirmed the substantive convictions as to both

defendants, but we directed the trial court to strike the allegation that a principal used and

discharged a firearm as to count 2, affirmed the sentence as to Windfield, who was 18 at

the time of the crimes, but ordered resentencing on [H.J.], who was under the age of 18,

4 “Windfield originally argued only two issues in his opening brief, but he joined [H.J.] in the remaining substantive issues.”

pursuant to People v. Gutierrez (2014) 58 Ca1.4th 1354, directed modification of [H.J.]’s

presentence credits, and amendment of the abstracts of judgment.

“Defendants petitioned for review but their petitions were denied. However, on

the Supreme Court’s own motion as to [H.J.], the Supreme Court granted review but

deferred briefing pending consideration and disposition of a related issue in In re

Alatriste, S214652, In re Bonilla, S214960, and Franklin, S217699. After the decision in

Franklin was filed, the matter as to [H.J.] was returned to us with directions to vacate our

decision and reconsider the cause in light of Franklin. On September 28, 2016, we

published our second opinion, republishing the portions of the opinion unaffected by the

grant of review but affirming in part and reversing in part as to [H.J.]. Both defendants

again petitioned for review.[5]

“On January 11, 2017, the California Supreme Court granted the second set of

petitions for review, but deferred further action pending consideration and disposition of

the related issue in People v. Canizales, S221958 (now at People v. Canizales (2019) 7

Ca1.5th 591 (Canizales)). Following the issuance of the decision in Canizales, the

Supreme Court retransferred the matter to us with directions to vacate our decision and

reconsider the cause in light of Canizales, supra, and People v. Perez (2016) 3

Cal.App.5th 612, 619. We vacated our opinion pursuant to the Supreme Court’s

5 “We reversed and remanded [H.J.]’s sentence. With the benefit of the developing body of law on the Franklin issue, we have modified the disposition to reflect a remand for a hearing at which [H.J.] may make a record of his youth as mitigation under Franklin.”

directions, filing our modified opinion on January 15, 2020, which was certified for

publication.[6]

“Defendants again petitioned for review, and again the Supreme Court granted

review. This time, the cause was retransferred to us for reconsideration in light of Senate

Bill No. 620, another law enacted after the defendants had been convicted of their crimes.

We vacated our opinion pursuant to the Supreme Court’s directions, and now re-issue the

prior opinion with further modification in light of the enactment of Senate Bill No. 620,

which modified section 12022.53, subdivision (h), to permit a trial court to exercise its

discretion to strike or dismiss a gun discharge enhancement.”

B. The Transfer Hearing

On remand to the juvenile court, an amended petition was filed alleging murder

(§ 187, subd. (a), count 1), with allegations that a principle discharged or used a firearm

(§ 12022.53, subds. (d), (c) & (b)); attempted murder, naming the same victim7 and the

same firearm enhancements (§§ 664, 187, subd. (a), 12022.53, subds. (d), (c), (b),

count 2) and assault with a firearm along with a gang enhancement and an allegation that

H.J. personally used a firearm. (§§ 245, subd. (b), 186.22, subd. (b)(1)(C), § 12022.5,

6 “The opinion was previously published as People v. Windfield (2020) 44 Cal.App.5th 196.”

7 The actual victim of the attempted murder and aggravated assault was Ricky Paul Peete, II, as we noted in our prior opinion. The probation report refers to a third amended petition, but our record does not include any other amendments in which the name may have been corrected. This mistake was also made during the adult court proceedings, as we noted in our prior opinion.

subd. (a), count 3.) The petition requested a transfer hearing to determine whether H.J

should be transferred to a court of criminal jurisdiction.

The transfer hearing spanned several days of testimony covering the statutory criteria

for transfers to adult criminal court. In addition, several reports were prepared and

submitted, including the probation officer’s report, and the psychological evaluation by

Dr. Marjorie Graham-Howard. The record refers to two additional reports, a

biopsychosocial assessment-mitigation report by Asia Williamson, MSW, which is not in

the record, and a document referred to as a mitigation report by a separate expert, Jay

Aguas, a former chief of personnel for the California Youth Authority and deputy director

of facilities at the division of juvenile justice before he retired , which also is not included

in the record. We summarize the evidence adduced at the hearing.

(a) Probation Officer Kathryn Sloan’s Report and Testimony

Before the transfer hearing, Probation Officer Kathryn Sloan prepared a section

707 transfer dispositional report, in which she detailed H.J.’s background, addressed the

five statutory transfer criteria, and ultimately found that H.J. was unsuitable for juvenile

jurisdiction and recommended that he be transferred to adult criminal court.

On December 11, 2024, H.J. was interviewed in person while in custody at West

Valley Detention Center. As a youth, H.J. was diagnosed with post-traumatic stress

disorder (PTSD) and explosive conduct disorder, relating to the loss of several family

members over a space of four years. He received therapy from the second grade to

address his behaviors and mental health. H.J. had not been on medication but for the four

years preceding the interview, he relied on his faith to aid in his mental health.

Prior to his arrest for the instant case, H.J.’s mother was the primary provider after

his father became disabled due to kidney disease. When that happened, his family

dynamic changed significantly but prior to this, his father had struggled with work. H.J.’s

father died in 2022.

H.J. lived with his parents and two sisters, but they also had extended family

living with them, too. At one time they had 14 people living in their house and H.J.

shared a room with four cousins and an uncle. H.J. never worked a formal job himself,

but occasionally did jobs that earned him a little cash, but nothing that contributed to the

family. He had a curfew, but it was not rigid, so he frequently did not adhere to it. When

H.J. left his house, no one questioned where he was going or when he was coming home.

Some of H.J.’s family members had firearms but they were not registered and no

one ever taught him how to use one, it was just the family’s way while he was growing

up. If H.J. got into trouble, he “ ‘got a whooping,’ ” and while family always had food

and shelter, they relied on additional food from the church, although they only attended

church sporadically. Their neighborhood was not a safe environment: H.J. was hit by a

car on Easter when he was seven, he was shot in the buttocks, arm and leg when he was

13 due to a “ ‘disagreement’ ” and was stabbed in the neck and arm when he was 17.

However, at the hearing, the probation officer testified there was no corroboration for any

of these events, where the later events would have occurred while H.J. was a ward of the

court and under probation supervision.

Growing up, H.J. described his father and uncle as his strongest positive

influences and H.J. reported he respected and loved both his parents. H.J. stated his

father taught him how to love a woman, how to always be there for family and how to try

your best and generally just surviving, while his mother was the one who taught him how

to fight for what he wanted and to speak up for himself. H.J. indicated his mother had

come a long way, and, despite past mental health struggles, she is a nurse, a life counselor

for her own nonprofit for domestic violence, as well as her own podcast; she also wrote a

book, for which H.J. felt proud of her.

H.J. also reported that while in school, he played sports like basketball, football

and boxing, which activities stopped when his father became disabled. His declining

grades also made him ineligible for school sports, and despite an Independent

Educational Plan (IEP), he did not know how to read or write, to which he attributed his

life on the streets and his propensity for getting into fights.

Regarding his gang membership, H.J. denied it was a gang, but, rather, a group of

friends who lived in the area and hung out together. It was when the police who called

them a gang and “gang carded them” that they began committing crimes; nevertheless,

once in prison, H.J. admitted he did work for the gang and earned consequences because

of it.

In prison, H.J. took the adult basic education II program, which is the precursor for

the adult basic education I program due to his inability to read, and is in the Five Keys

Program; he completed alternative to violence, which he described as being “huge” for

him.

While on probation in the past, H.J. completed victim awareness and community

service but feels he may not have understood how to implement what was taught. H.J.

owned up to his past actions such as his conviction in 202l for assault, committed while

in prison, admitting that he had a handcuff key and unlocked the handcuffs of two

inmates returning from visits. As a result of his actions, the two other inmates were able

to go upstairs before the gate closed on the protective custody tier and attacked two

protected inmates.

The probation officer’s supplemental report, prepared after receiving the

assessment and mitigation report prepared by social worker Williamson, noted additional

information not previously reported to the probation officer by H.J. This information

includes H.J.’s later report that his aunts and uncles used drugs, which is why his parents

housed their children; his maternal grandmother stole from his parents; his older sister as

inappropriately touched by an older cousin; his parents were unable to help him with

homework due to time constraints, and his anger towards his extended family and his fear

for their safety was due to his father’s illness.

H.J.’s mother reported that H.J. was evaluated in 2008 under Assembly Bill No.

2726;8 after graduation, H.J. secured a job with City of Fontana Parks and Recreation as a

recreational leader to begin on July l, 2008; H.J.’s mother and father engaged in goals and

strategy meetings with a therapist assigned to H.J.; the mother focused on helping H.J.

graduate from high school; the mother admitted to spoiling H.J. since he was her only

son; H.J.’s maternal grandmother had a long drug history, and his maternal grandfather

was in prison most of H.J.’s mother’s life; H.J.’s parent’s tried to address H.J.’s behaviors

without counseling or medication, but they supported him with counseling, therapy and

medication when their efforts were unsuccessful.

H.J.’s father reported having a great relationship with H.J. during his formative

years and the father coached all of H.J.’s football and basketball teams; H.J. was fearful

of his father dying and the impact it would have on the family due to the deaths of his

uncles; H.J. did not want to attend school once he entered high school; his frustration

with the school was that it was not addressing H.J.’s academic and learning issues, only

his behavior issues. H.J.’s sister reported that she was responsible for helping to care for

H.J. and their cousins; and that at age 8 or 9, H.J. was teased by his cousins due to his

inability to read, which made H.J. angry and made him try to fight with them. In

addition, the social worker who prepared the report felt that H.J.’s father’s incarceration,

8 Assembly Bill No. 2726 (1996 Reg. Sess.) (Stats. 1996, ch. 654, § 2) amended what was formerly Government Code section 7576, repealed by its own terms, operative January 1, 2012, which addressed mental health services for children with disabilities who are the subject of an IEP.

when H.J. was between two and six, and his mother’s increased responsibility for her

nieces and nephews shattered the strong family.

(b) Probation Officer Sloan’s Evaluation of the Transfer Criteria

As to the first criterion regarding criminal sophistication, Sloan concluded H.J.

was suitable for retention under juvenile jurisdiction. Sloan reported that H.J. was almost

18 at the time of the offense and was living with his fellow gang members. Sloan

outlined H.J.’s criminal history, noting he had successfully completed a probation term so

“he understood the expectations while on probation and the possible consequences.”

Outlining the circumstances of the offense, Sloan reported that H.J. and his codefendant

left the initial interaction with the victim, “were no longer at risk, however they returned

later on their own, armed, . . . and lay in wait for the victim to walk out into the open,

where he was most vulnerable.” Sloan opined that H.J.’s actions were thought-out and

purposeful, although she believed it was unlikely that H.J. was the “initiator” of the

offense because of his intellectual capacity. She agreed though that “[H.J.] still could

have appreciated the risks and consequences of his actions.”

As to the second criterion, regarding whether H.J. could be rehabilitated before the

expiration of juvenile jurisdiction, Sloan concluded H.J. was not suitable for juvenile

jurisdiction. Sloan reported that H.J. was now 33 years old and had been in custody for

15 years, yet he had not participated in much programming due to his violent behavior of

fighting, participating in riots, and committing battery on fellow inmates. As the report

noted, H.J. participated in an alternatives to violence class yet subsequently sustained a

felony assault conviction. Due to H.J.’s age, under juvenile jurisdiction, he would be

immediately released and would be supervised by and receive services from adult

probation.

Sloan’s primary concern under the second criterion was whether H.J. could be

rehabilitated within the limited two-year period of juvenile court supervision. Sloan

testified that although H.J. wanted to rehabilitate, his rehabilitation efforts to date had not

been effective because he continued to show violent behavior while incarcerated. Sloan

further testified that H.J.’s history did not show a consistent two-year period without a

violent outburst, which made the limited period of juvenile court supervision a significant

concern.

As to the third criterion, H.J.’s delinquent history, Sloan concluded that H.J. was

suitable for retention under juvenile jurisdiction. In evaluating this criterion, Sloan only

considered H.J.’s juvenile history and did not consider his subsequent adult offenses and

conduct. Sloan reported that H.J.’s delinquent behavior had been consistent since age 11.

Sloan further reported that although H.J. had been arrested numerous times from age 16

to 17, he did not receive services again until four months before the murder.

As to the fourth criterion, the success of previous attempts at juvenile

rehabilitation, Sloan concluded that H.J. was suitable for retention under juvenile

jurisdiction. Sloan opined that because H.J. had failed to take advantage of certain

rehabilitative programs and services while on probation, it was likely that the services

were not offered in a format that H.J. could intellectually comprehend.

As to the fifth criterion, the gravity of the circumstances, Sloan found that H.J.

was not suitable for retention under juvenile jurisdiction. Sloan reported that H.J. was a

willing participant in the murder and there was no indication that he was forced or

hesitant to commit the murder. Rather, he drove with his codefendant back to the

location where the victim was and shot him at close range.

Ultimately, and even considering Dr. Graham-Howard’s report, Sloan concluded

that H.J. was unsuitable for juvenile jurisdiction and recommended that H.J. be

transferred to adult criminal court, despite finding he was suitable under three of the five

criteria. She explained that her ultimate recommendation was based primarily on her

concerns regarding H.J.’s ability to be successfully rehabilitated within the two-year span

of juvenile court control. She also considered Dr. Graham-Howard’s conclusion that H.J.

was at high risk for reoffending, which Sloan believed was relevant to whether H.J. could

be rehabilitated within that limited period.9

Clinical psychologist Dr. Marjorie Graham-Howard evaluated H.J. to assess

whether he should be retained under juvenile jurisdiction or transferred to adult criminal

court pursuant to Welfare and Institutions Code section 707. In preparing the evaluation,

Dr. Graham-Howard interviewed H.J. and reviewed his records, including probation

materials, school records, juvenile case and probation records, and police reports related

9 Sloan filed a supplemental transfer report to address information she received after submitting her original report, relating to previously undisclosed statements from H.J. and his family regarding H.J.’s upbringing. However, the additional statements did not alter Sloan’s opinion that H.J. be transferred to adult criminal court.

to the offense. Dr. Graham-Howard did not consider any prison records, explaining that

her evaluation was retrospective and intended to assess H.J.’s circumstances around the

time of the offense.

During the interview with Dr. Graham-Howard, H.J. reported he witnessed his

father and mother get into arguments that were sometimes physical, though he described

their relationship as “average.” H.J.’s parents had a criminal history. His mother abused

alcohol and cannabis and was in and out of psychiatric hospitals; and his father was

incarcerated for several years, made a living selling drugs, and was released from prison

when H.J. was 10 years old. H.J. reported that his parents, aunts, uncles, and cousins

were gang affiliated and that both his parents were negative role models. His mother was

physically abusive toward him although H.J. reported that his father tried to remain lawabiding after being released from prison and even enrolled H.J. in sports to keep him

“ ‘out of the streets.’ ”

H.J. struggled academically and behaviorally in school. Academically, he was

failing his classes. Behaviorally, he was suspended for fighting and disrespecting

teachers in middle school, and he was expelled from two high schools for fighting, gang

activity, and truancy. He often got into fights because of his participation in “ ‘the gang

life.’ ”

H.J. reported that he was “ ‘pretty much born into’ ” the gang life, though he was

formally affiliated around age 12, and “[h]e was heavily involved in his gang throughout

his life, continuing until the present.” H.J. was first arrested when he was 13 years old

after he stole his mother’s car. H.J. had a felony evading charge, sustained a true finding

for misdemeanor receiving stolen property, was arrested for shooting at an inhabited

dwelling, and sustained a true finding for resisting an executive officer.

Dr. Graham-Howard conducted testing to assess H.J.’s risk factors for adolescent

criminal recidivism, using the Structure Assessment of Violence Risk in Youth, or

SAVRY test. She found that H.J. had many risk factors and only one protective factor,

leading her to conclude that H.J. was in the high risk range for reoffending. These high

elevations included exposure to violence in the home, childhood history of maltreatment,

parental caregiver criminality, poor school achievement, and peer delinquency.

Intellectually, Dr. Graham-Howard found H.J. had a full-scale IQ of 76, placing

him in the borderline range of intellectual functioning, and indicating low average to

deficit functioning. H.J.’s IQ score did not qualify him for an intellectual disability

diagnosis, but his education records showed that he qualified for special education

services.

Dr. Graham-Howard evaluated the statutory transfer criteria under Welfare and

Institutions Code section 707. As to the first criterion, Dr. Graham-Howard found H.J.

was criminally sophisticated, citing H.J.’s gang affiliation, peer-related violence,

behavioral problems, habitual substance use, and truancy as indicators of criminal

sophistication. As to the offense itself, Dr. Graham-Howard found it was criminally

sophisticated given the preplanning, involvement of co-participants, use of a weapon,

nature of the crime, and the direct tie to gang affiliation.

As to the second criterion, whether H.J. could be rehabilitated prior to the

expiration of the juvenile court’s jurisdiction, Dr. Graham-Howard did not reach an

opinion in her written report because H.J. was already an adult and it was her

understanding that the time frame juvenile rehabilitation had expired. At the hearing,

upon being informed that juvenile court jurisdiction could provide approximately two

years of supervision, she testified that two years would be sufficient for H.J.’s

rehabilitation, but indicated for H.J. to be rehabilitated, he would need medication,

individual therapy, educational services, vocational services, family therapy, and gang

intervention resulting in a full disassociation from his gang lifestyle.

As to the third criterion, H.J.’s prior delinquent history, Dr. Graham-Howard found

that H.J. had a more extensive delinquency history than that of the typical youth who

remains in the juvenile justice system and that the circumstances of the offense were

serious and criminally sophisticated. This conclusion was based on H.J.’s prior juvenile

history, gang affiliation, peer-related violence, and poor conduct at school, home, and in

the community.

As to the fourth criterion, previous attempts by the juvenile court to rehabilitate

H.J., Dr. Graham-Howard found H.J. did not have a long history of failed rehabilitative

efforts, in that H.J. had a limited prior juvenile history and that the interventions provided

for him had also been limited. Dr. Graham-Howard did not see any significant prior

attempt to provide the types of interventions she believed H.J. needed, including services

addressing his trauma, cognitive limitations, educational deficits, vocational needs, and

family relationships.

As to the fifth criterion, the circumstances and gravity of the offense, Dr. GrahamHoward found the offense was serious and grave as H.J. left the scene, came back armed

with a gun, and intentionally shot and killed the victim in a gang-motivated murder.

Although she agreed H.J. participated in the offense, she was doubtful he planned the

offense.

Dr. Graham-Howard also identified psychological and developmental factors that

mitigated the gravity of the offense: H.J.’s family upbringing and generational issues

related to criminality and gang affiliation; H.J.’s exposure to domestic and community

violence; H.J.’s intellectual, educational, and mental health deficits; and H.J.’s age and

maturation at the time of the offense. Dr. Graham-Howard noted that H.J. was almost 18

at the time of the offense, and that, when his age was considered along with his other

deficits, H.J. would have difficulty with planning, organization, decision-making, and

problem solving. However, Dr. Graham-Howard acknowledged that H.J. was five weeks

away from turning 18 at the time of the offense and had already been on two grants of

probation before committing the murder.

As to H.J.’s gang affiliation, Dr. Graham-Howard admitted that H.J. remained

heavily involved with his gang and that she did not discuss gang disassociation with H.J.,

which was “probably” an error. She acknowledged that gang association can make

rehabilitation more difficult when the individual continues to adhere to that affiliation.

She also acknowledged that, if the information she used to render an opinion was

inaccurate or incomplete, that could render the opinion inaccurate. Dr. Graham-Howard

concluded H.J. should not be transferred to adult court.

(d) Rehabilitation resources—Jay Aguas

Jay Aguas, a former deputy director of the Division of Juvenile Justice, testified

regarding the differences between juvenile and adult correctional settings and mitigating

factors that affected H.J.’s potential for rehabilitation if retained under juvenile court

jurisdiction. Aguas believed H.J. had several mitigating circumstances, primarily his

unstable upbringing and negative influence of his parents, and his intellectual challenges.

Aguas disagreed with probation’s conclusion that H.J. was unsuitable under the

rehabilitation criterion. In Aguas’s view, the record did not show meaningful efforts by

the probation department to address the mitigating factors he identified.

In Aguas’s opinion, H.J. should remain under juvenile court jurisdiction and

receive services through adult probation, including placement in the Anti-Recidivism

Coalition transitional living program, or ARC, in Los Angeles. He recommended that

H.J. would need to be in the ARC program for at least three years, a period that exceeded

the two-year period of supervision available to H.J. if he remained under juvenile court

jurisdiction. Aguas suggested three years because H.J. needed “a lot of time” in the

program to rehabilitate, and that even after the two-year supervision period expired, if

H.J. was succeeding in ARC, H.J. could continue participating in the program on his own.

Asked whether two years of adult probation supervision would be sufficient for H.J. to

get the services he needed to rehabilitate, Aguas responded, “I’m not quite sure.”

C. The Juvenile Court’s Ruling

After taking judicial notice of the case file, considering the briefs of the parties,

the reports of the experts, and the testimony at the hearing, the juvenile court made its

ruling. The court observed that notwithstanding H.J.’s description of an abusive homelife

with parents and relatives involved with gangs and criminal activity, there was no history

of violence from records of law enforcement or child welfare records to support that

description, and other information indicated that while his father was incarcerated while

H.J. was very young, his father coached H.J.’s football and basketball teams after being

released from incarceration.

The juvenile court concluded that H.J. had been found unsuitable for the Secure

Youth Treatment Facility (SYTF) ARISE program, which is designed for youthful

offenders aged 14 to 25 years of age. It also noted that Dr. Graham-Howard considered

H.J. to be criminally sophisticated. The court noted it could retain jurisdiction over H.J.

for two additional years under juvenile probation but determined that this factor

supported a transfer to criminal court.

Regarding the second factor, related to whether H.J. could be rehabilitated before

the expiration of juvenile jurisdiction, the court acknowledged H.J.’s performance under

juvenile court supervision before he participated in the current offense, but noted that

despite H.J.’s participation in the programs available to him during his prison

incarceration, he had ongoing disciplinary issues, including for battery on fellow inmates,

fighting, participation in riots, and battery with a weapon causing serious injury, in

addition to two recent felony convictions: one for being an inmate in possession of a

weapon (other than a firearm), and assault with a deadly weapon (not a firearm). H.J.

admitted being affiliated with Ramona Blocc Hustlas at the age of 12 and continued his

gang affiliation to the present in that H.J. admitted he was putting in work for the gang

while in prison.

The court also noted that Dr. Graham-Howard’s findings and recommendation did

not address H.J.’s gang affiliation, nor any of H.J.’s disciplinary records and criminal

offenses while in custody, so her assessment was based solely on “attempted

extrapolations back in time to when [H.J.] was 17 years old,” and his verbal assertions of

a desire to change, which was unsupported by his record of ongoing behaviors. The court

also noted that while her SAVRY assessment indicated a high risk of recidivism, her

proposed plan omitted any type of gang intervention, where the offense was clearly gang

related. The court found that because the offense was clearly gang related and because

H.J. continued to act violently while in custody, disassociation from gang life was a

significant central issue that would need to be addressed in any plan for rehabilitation,

and that two years of juvenile probation was an inadequate time frame for H.J. to

successfully rehabilitate and dissociate from his entrenched gang criminal lifestyle. The

juvenile court therefore ruled that the People had met their burden of proving that factor,

which supported transfer to criminal court.

Regarding the third factor, the court considered H.J.’s previous delinquent history,

including the seriousness of the prior delinquent history and the effect of the minor’s

family and community environment and childhood trauma on his previous delinquent

behavior. On this factor, the juvenile court found in favor of H.J., noting that H.J.

successfully completed formal probation, although he did have multiple arrests for

violent offenses. The court noted that H.J. experienced community violence (having been

shot and stabbed), had several family members die within a short time frame, and his

parents had criminal backgrounds, with his father being incarcerated until H.J. was six.

As to the fourth factor, the juvenile court considered the success of previous

attempts to rehabilitate H.J., including but not limited to the adequacy of the services

provided to H.J. The court found the services provided while on juvenile probation for

the first time included community service and a victim’s awareness class. However, H.J.

was also offered anger management, juvenile traffic court, SARB (School Attendance

Review Board), and drug and alcohol counseling, of which he did not take advantage.

Given that the case plan for H.J. made no mention of his learning disability, the court

considered the fact the services may have been in a format that H.J. could not

comprehend. For this reason, the court ruled that the People had not met their burden

with respect to this factor.

As to fifth and final factor, pertaining to the circumstances and gravity of the

offense, the court observed that in addition to its findings under the first fact, murder is

the most grave of all offenses, H.J. was almost 18 at the time of the offense, and on active

probation. The court also noted that the murder was premeditated and committed at the

behest of the gang. The court went on to observe that there is no evidence that the

victims trafficked, sexually abused, or sexually battered H.J., nor was there evidence that

H.J. had mental or emotional issues that would impair his ability to understand his actions

or their consequences, and that, in fact, H.J. was frequently not home, “choosing instead

to hang out on Ramona with his gang.” The juvenile court concluded that the People met

their burden on this factor, supporting a transfer to the criminal court.

The court found by clear and convincing evidence that H.J. was not amenable to

the rehabilitation while under juvenile court jurisdiction because he was at least 16 at the

time of the offense, and was not amenable to the care, treatment and training programs

available to him through the juvenile court.

The court then proceeded to dismiss, without prejudice, the first amended juvenile

petition in its entirety and directed the transfer of the matter to criminal court.

On March 11, 2026, H.J. timely filed a notice of appeal.

DISCUSSION

The sole issue on appeal is whether the juvenile court erred in transferring the

matter to adult criminal court because there was insufficient evidence supporting (1) the

court’s finding of criminal sophistication, and (2) that he was not amenable to treatment

and rehabilitation in the juvenile court. We disagree.

a. General Legal Principles Governing Juvenile Transfer Proceedings and the

Applicable Standard of Review

(i) Standard of Review

“We review the juvenile court’s determination to transfer a minor to criminal court

for abuse of discretion.” (In re J.S. (2024) 105 Cal.App.5th 205, 211 (J.S.), citing J.N. v.

Superior Court (2018) 23 Cal.App.5th 706, 714 (J.N.); In re Miguel R. (2024) 100

Cal.App.5th 152, 165 (Miguel R.).) The juvenile court’s findings with respect to each of

Welfare and Institutions Code section 707’s five criteria are findings of fact reviewed for

substantial evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 680, 682-683.) “In conducting substantial evidence review, we draw all reasonable inferences in

support of the court’s findings.” (Miguel R., supra, at p. 165, citing People v. Cardenas

(2020) 53 Cal.App.5th 102, 119, fn. 11.) Likewise, we review for substantial evidence

the juvenile court’s ultimate finding “that the minor is not amenable to rehabilitation

while under the jurisdiction of the juvenile court.” (Welf. & Inst. Code, § 707, subd.

(a)(3).)

Frequently overlooked is the principle that the existence of contrary evidence in

the record does not show that the trial court’s findings were not supported by substantial

evidence; instead, “ ‘[i]f the circumstances reasonably justify the trier of fact’s findings,

the opinion of the reviewing court that the circumstances might also reasonably be

reconciled with a contrary finding does not warrant a reversal of the judgment.’ ”

(People v. Thomas (1992) 2 Cal.4th 489, 514 (Thomas), citing People v. Bean (1988) 46

Cal.3d 919, 932-933.) We consequently are concerned only with whether “ ‘ “the

circumstances reasonably justify the trier of fact’s findings.” ’ ” (People v. Kraft (2000)

23 Cal.4th 978, 1054.) When evidence reasonably justifies the trier of fact’s findings,

“ ‘the opinion of the reviewing court that the circumstances might also reasonably be

reconciled with a contrary finding does not warrant a reversal of the judgment.’ ”

(Thomas, supra, at p. 514.)

(ii) Brief Legislative History of Adjudicating Minors in a Criminal Court

“ ‘ “Historically, a child could be tried in criminal court only after a judicial

determination, before jeopardy attached, that he or she was unfit to be dealt with under

juvenile court law.” ’ ” (O.G. v. Superior Court (2021) 11 Cal.5th 82, 88 (O.G.), citing

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305 (Lara).) In 1961, the

Legislature set 16 years of age as the minimum age at which a minor could be transferred

to criminal court. (O.G., supra, at p. 88.) “Since 1975 the procedural requirements for

fitness hearings have been established by [Welfare and Institutions Code] section 707.”

(Juan G. v Superior Court (2012) 209 Cal.App.4th 1480, 1488.)

“The general rule used to be that ‘any individual less than 18 years of age who

violates the criminal law comes within the jurisdiction of the juvenile court, which may

adjudge such an individual a ward of the court.’ ” (Lara, supra, 4 Cal.5th at p. 305, citing

Manduley v. Superior Court (2002) 27 Cal.4th 537, 548 (Manduley).) That historical rule

was modified first in 1999, when section 602, former subdivision (b), permitted the

district attorney to prosecute an individual who was at least 16, who previously had been

declared a ward for committing a felony after the age of 14 years, in adult court if the

individual was alleged to have committed certain enumerated serious offenses. (Stats.

1999, ch. 996, § 12.2; Manduley, supra, at p. 549.) Proposition 21, titled the Gang

Violence and Juvenile Crime Prevention Act of 1998, approved by voters at the March 7,

2000, Primary Election, revised the juvenile court law further, permitting direct filing in

adult court of minors aged 14 and older, who commit one of the enumerated serious or

violent offenses. (Manduley, at pp. 549-550.)

In the years following the enactment of amendments to section 602 following the

passage of Proposition 21, there was “ ‘a sea change in penology regarding the relative

culpability and rehabilitation possibilities for juvenile offenders, as reflected in several

judicial opinions.’ ” (O.G., supra, 11 Cal.5th at p. 88, citing People v. Vela (2018) 21

Cal.App.5th 1099, 1106.) “These changes were based upon developments in scientific

research on adolescent brain development confirming that children are different from

adults in ways that are critical to identifying age-appropriate sentences.” (O.G., at p. 88.)

As a result, in November 2016, the electorate passed Proposition 57, the Public

Safety and Rehabilitation Act of 2016 (Prop. 57). “Proposition 57 prohibits prosecutors

from charging juveniles with crimes directly in adult court. Instead, they must commence

the action in juvenile court. If the prosecution wishes to try the juvenile as an adult, the

juvenile court must conduct what we will call a ‘transfer hearing’ to determine whether

the matter should remain in juvenile court or be transferred to adult court. Only if the

juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as

an adult.” (Lara, supra, 4 Cal.5th at p. 303, citing Welf. & Inst. Code, § 707, subd. (a).)

For juvenile defendants, Proposition 57 largely reinstated the historical rule. (Lara, at p.

305.) Thereafter, “Senate Bill [No.] 1391 amended Proposition 57 by eliminating the

transfer of juveniles accused of committing crimes when they are 14 or 15 years of age,

unless they are first apprehended after the end of juvenile court jurisdiction. (See Welf.

& Inst. Code, § 707, subd. (a)(1)-(2), as amended by Stats. 2018, ch. 1012, § 1)” (O.G.,

supra, 11 Cal.5th at p. 89.)

(iii) Current Procedure for Transfer of Juveniles to Adult Court

Effective January 1, 2023, Welfare and Institutions Code section 707, subdivision

(a)(3) was amended in part as follows: “ ‘In order to find that the minor should be

transferred to a court of criminal jurisdiction, the court shall find by clear and convincing

evidence that the minor is not amenable to rehabilitation while under the jurisdiction of

the juvenile court. In making its decision, the court shall consider the criteria specified in

subparagraphs (A) to (E), inclusive. If the court orders a transfer of jurisdiction, the court

shall recite the basis for its decision in an order entered upon the minutes, which shall

include the reasons supporting the court's finding that the minor is not amenable to

rehabilitation while under the jurisdiction of the juvenile court.’ (Stats. 2022, ch. 330,

§ 1)” (In re E.P. (2023) 89 Cal.App.5th 409, 415-416 (E.P.).)

The amendment changed Welfare and Institutions Code section 707 in several

ways: First, it changed the prosecution’s burden of proof to clear and convincing

evidence, increasing the burden from a preponderance of the evidence, as provided in the

previous version of Welfare and Institutions Code section 707. Second, amendment

states that the question of whether the minor is amenable to rehabilitation while under the

jurisdiction of the juvenile court is the ultimate question for the court to decide, whereas,

under the previous version, that question was but one of five factors for the court to

consider in determining whether the case should be transferred to criminal court. (E.P.,

supra, 89 Cal.App.5th at p. 416.)

Finally, the amended statute requires the court to not only recite the basis for its

decision, but also the reasons supporting the court's finding that the minor is not

amenable to rehabilitation while under the jurisdiction of the juvenile court, rather than

simply reciting the basis for its decision in the order. (E.P., supra, 89 Cal.App.5th at

p. 416.)

In deciding whether a case should be transferred to adult court, the amendment

requires the court to consider the same five factors listed in the previous version. (E.P.,

supra, 89 Cal.App.5th at p. 416.) Those criteria, listed in subparagraphs (A) through (E)

of Welfare and Institutions Code section 707, subdivision (a)(3), are: (1) “[t]he degree of

criminal sophistication exhibited by the minor” (Welf. & Inst. Code, § 707, subd.

(a)(3)(A)(i)); (2) “[w]hether the minor can be rehabilitated prior to the expiration of the

juvenile court’s jurisdiction” (Welf. & Inst. Code, § 707, subd. (a)(3)(B)(i)); (3) “[t]he

minor’s previous delinquent history” (Welf. & Inst. Code, § 707, subd. (a)(3)(C)(i)); (4)

“[s]uccess of previous attempts by the juvenile court to rehabilitate the minor” (Welf. &

Inst. Code, § 707, subd. (a)(3)(D)(i)); and (5) “[t]he circumstances and gravity of the

offense alleged in the petition to have been committed by the minor” (Welf. & Inst. Code,

§ 707, subd. (a)(3)(E)(i)). The statute sets forth a non-exhaustive list of relevant factors

for the court to consider with respect to each of the five criteria. (Welf. & Inst. Code,

§ 707, subd. (a)(3)(A)(ii), (B)(ii), (C)(ii), (D)(ii), (E)(ii); Miguel R., supra, 100

Cal.App.5th at p. 164.)

b. Analysis

Before addressing H.J.’s specific arguments, we note that H.J. proceeds from an

assumption that the findings were based on a fundamental misunderstanding of the

governing law (citing Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 187, which

in turn cited J.N., supra, 23 Cal.App.5th at pp. 710, 714-715), in arguing that a de novo

standard of review applies to the issue. However, H.J. has not met his burden on appeal

of demonstrating that the juvenile court misunderstood either the governing law, or the

scope of its discretion.

On appeal, we presume that the court has discharged its duties properly. “It is

presumed that official duty has been regularly performed.” (Evid. Code, § 664; see

People v. DeJesus (1995) 38 Cal.App.4th 1, 30 [where defendant argued that in

impaneling a second jury for a penalty phase trial the trial court mistakenly believed it

had no alternative but to do so, and had overlooked its power to impose life

imprisonment; the reviewing court held that the statutory presumption required it to

presume the court considered all necessary information]; see also People v. Moran (1970)

1 Cal.3d 755, 762 [claim that trial court failed to consider a Youth Authority (YA) referral

where the defendant waived application for probation and did not request a YA referral

rejected on the basis of the presumption].)

Here, the juvenile court specifically referred to rule 5.770 of the California Rules

of Court.10 Rule 5.770 restates that the burden of proof is on the petitioner (rule

5.770(a)), refers to the criteria to be considered, and that the court may order the youth to

be transferred to the criminal court if it finds by clear and convincing evidence each of

the following: that the minor was 16 years or older, etc., that the youth should be

transferred to the criminal court based on an evaluation of all the criteria in Welfare and

Institutions Code section 707, subdivision (a)(3), and that the youth is not amenable to

rehabilitation while under the jurisdiction of the juvenile court. (Rule 5.770 (b).) Rule

5.770(c) outlines the procedure to be followed after the findings have been made. (Rule

5.770(d)-(h).) H.J. has pointed to nothing in the record reflecting a failure on the part of

the juvenile court to understand the rules and has not shown that the court failed to follow

the rules. We conclude H.J. has failed to establish this aspect of the governing law.

Respecting the specific findings required by Welfare and Institutions Code section

707, subdivision (a)(3), H.J. asserts the court’s findings reflected “a fundamental

misunderstanding of the governing law.” H.J. goes on to state that “[a] minor cannot be

said to have received due process and a fair hearing if a key decision in his case (such as

whether he is amenable to treatment under the juvenile court jurisdiction) was made by a

court that failed to observe material provisions of the law governing its decisions.” He

10 All further rule references are to the California Rules of Court.

goes on to add that “Equally, a court that makes findings that are unsupported by the

minimal threshold of evidence similarly denies due process to the one subject to those

findings.” It is from this starting point that H.J. invokes the de novo standard of review.

Unfortunately, aside from his understandable disagreement with the findings that

were made, H.J. has pointed to nothing in the record to support his claim that the juvenile

court operated under a fundamental misunderstanding of the applicable law. The only

claim coming close is H.J.’s assertion that because the remand directed that the juvenile

court treat the case as though it had originated in juvenile court, it improperly considered

H.J.’s postconviction and gang-related conduct while in prison. In this respect, H.J.

asserts the juvenile court did not understand the law, requiring de novo review.

H.J. emphasizes his view that our previous disposition, which provided that “the

juvenile court shall treat the matter as though the prosecutor had originally filed a

juvenile petition in juvenile court and had then moved to transfer Johnson’s cause to a

court of criminal jurisdiction” intended a retrospective transfer hearing, ignoring all of

H.J.’s gang and violent activities since the date of the committing offense. Our prior

disposition was intended to address the provisions of Welfare and Institutions Code

section 707, subdivision (a)(2), which requires that a transfer motion be made prior to the

attachment of jeopardy, and said nothing about limiting the evidentiary matters the court

might consider. In other words, if transfer to the criminal court were not ordered, the

adult conviction would be vacated.

Welfare and Institutions Code section 707, subdivision (a)(2) also requires the

court to order a probation report “on the behavioral patterns and social history of the

individual.” (Ibid.) The court assiduously followed the statutory requirements. The

probation report, admitted without objection,11 was required to include the relevant

information about H.J.’s postconviction conduct because that behavior had a direct

impact on any decision to be made by any rehabilitative program as to his amenability, as

well as consideration of potential risks to other youths, posed by the possible

commitment of a 34-year-old to those programs.

Throughout Welfare and Institutions Code section 707, the juvenile court is

required to consider the criteria specified in subparagraphs (A) to (E), each of which

requires the court to “give weight to any relevant factor.” The probation report discussed

H.J.’s violence and gang-related activities in prison, and was submitted for the court’s

consideration, without objection, and was properly weighed as a relevant factor.

During the defense case-in-chief, the prosecutor asked Dr. Graham-Howard about

her own statement (summarizing H.J.’s statements in her report) regarding H.J.’s heavy

involvement in the gang, which was continuing to the present. H.J. did not object. In her

11 H.J. made a motion to exclude the admission of his adult prison/conviction records (his prison packet, pursuant to Penal Code section 969b), which had been subpoenaed from the Department of Corrections, and while he referred in his motion to the fact the probation officer considered H.J.’s conduct in prison, he did not object to the probation report, which the juvenile court is statutorily required to consider, along with its inclusion of relevant “behavioral patterns and social history.” (Welf. & Inst. Code, § 707, subd. (a)(2).) H.J. has not challenged that ruling on this appeal. Nor did he object at the hearing when the probation officer testified about H.J.’s felony adult conviction, and the weapons charge that was still pending in connection with the issue of whether he can be rehabilitated in the two years of potential juvenile jurisdiction, H.J.

testimony, she also agreed that gang intervention would be a “major thing” for H.J. to

address in order to rehabilitate and he would need to disassociate from the gang and that

lifestyle, although she did not talk about gang disassociation with him.

The court’s consideration of the information regarding H.J.’s violent conduct and

gang activity during his years of incarceration was not due to a misunderstanding of the

law or the procedure; the court was required and authorized to consider any relevant

evidence. It goes without saying that if H.J. felt the juvenile court should not consider

certain evidence or information, he (through counsel) had an obligation to lodge an

objection. Courts have consistently held that the “ ‘ “defendant’s failure to make a timely

and specific objection” on the ground asserted on appeal makes that ground not

cognizable.’ ” (People v. Partida (2005) 37 Cal.4th 428, 434, citing People v. Green

(1980) 27 Cal.3d 1, 22 [objection on ground that questions were leading does not

preserve appellate argument that the evidence was impermissible evidence of other

crimes]; see People v. Seijas (2005) 36 Cal.4th 291, 302.)

Aside from H.J.’s arguments related to the current policy favoring juvenile

treatment for youthful offenders, H.J. has not pointed to anything in the record supporting

an assertion that the trial court’s misunderstanding of the law or the scope of its discretion

entitles him to a review under the de novo standard of review.

We now proceed to analyze the sufficiency of the evidence to support the findings.

(i) Whether There is Substantial Evidence to Support the Transfer to Adult Court

H.J. argues that insufficient evidence supports the court’s finding by clear and

convincing evidence that he should be transferred to the criminal court, arguing that the

court failed to explain how it weighed the evidence and to state the reasons supporting its

amenability finding. (Rule 5.770(c).) We disagree.

In evaluating this criterion, Welfare and Institutions Code section 707, subdivision

(a)(3) indicates the juvenile court may consider, among other things, “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 . . .; the effect of familial, adult, or peer pressure on the minor’s actions;”

and “the effect of the minor’s family and community environment.” (Welf. & Inst. Code,

§ 707, subd. (a)(3)(A)(ii).) Additionally, the statute expressly permits the court to

consider any other relevant factor. (Ibid.)

The amended “statute expressly requires the court to consider all five criteria in

making its determination, but the statute says nothing about the relative weight to be

given to any of the criteria.” (Miguel R., supra, 100 Cal.App.5th at p. 166.) Additionally,

the weight that the juvenile court assigns to each of the above factors rests within its

sound discretion. (C.S. v. Superior Court (2018) 29 Cal.App.5th 1009, 1034-1035

(C.S.).) “Under the amended statute, like the previous version, the [juvenile] court has

the discretion to conclude that one or more of the five factors predominate so as to

determine the result, even though some or all of the other factors might point to a

different result.” (E.P., supra, 89 Cal.App.5th at p. 417.) The juvenile court must clearly

and explicitly articulate its evaluative process by detailing how it weighed the evidence

and by identifying the specific facts that persuaded the court to reach its decision. (C.S.,

supra, at p. 1035; see In re S.S. (2023) 89 Cal.App.5th 1277, 1294.)

In C.S., the reviewing court referred to the need for the juvenile court “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.” (C.S., supra, 29 Cal.App.5th at p. 1029, citing In re Pipinos (1982) 33 Cal.3d

189, 198.) In C.S., the juvenile court “discussed relevant factors—such as [the minor’s]

early childhood, the expert testimony regarding [his] brain development, [his] prior

offenses, and [his] gang involvement”—but it did not specify whether those factors or the

criminal sophistication criterion generally weighed in favor of transfer. (C.S., at p. 1031.)

In the present case, the juvenile court did just that.

The requirement for a “clearly articulated” basis for the court’s decision refers to

the decision in Kent v. United States (1966) 383 U.S. 541, 561), where the high court held

that, under principles of due process, the minor was entitled to “a statement of reasons”

(Id., at p. 557), but that the statement did not need to be “formal,” although it did need to

demonstrate that the juvenile court had engaged in a “careful consideration” of the issue.

(Id., at p. 561; see C.S., supra, 29 Cal.App.5th at p. 1028.) The reviewing court in C.S.

went on to state: “As applied to a decision to transfer a minor to adult/criminal court

under [Welfare and Institutions Code] section 707[, subdivision] (a)(2), we hold that the

foregoing principles require a juvenile court 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.] 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. (C.S., at p. 1029.)

That was done here. H.J.’s real complaint is that the juvenile court should have

attached greater weight to the probation officer’s conclusion that the criminal

sophistication factor did not support a transfer to adult court. However, the statute “says

nothing about relative weight to be given to any of the criteria.” (Miguel R., supra, 100

Cal.App.5th at p. 166.) Nor has H.J. cited any authority for the proposition that the court

was bound to retain H.J. in juvenile court based on the probation officer’s

recommendation respecting one factor, where the probation officer’s overall

recommendation was for a transfer to adult court.

H.J. first argues that the factor relating to criminal sophistication was unsupported

by substantial evidence. Yet his own expert indicated that the sophistication factor

militated in favor of a transfer to adult court. In addition, the probation officer, whose

recommendation was to find that the crime was not particularly sophisticated, agreed that

acting for the benefit of a gang in the commission of the offense was sophisticated.

Here, in its ruling, the court devoted a significant amount of analysis to the

considerations supporting the criminal sophistication factor, including the fact that H.J.’s

expert, Dr. Graham-Howard found that he was criminally sophisticated. It is true that the

probation officer came to the opposite conclusion based on H.J.’s limited intellectual

capacity, which made him more of a follower than a mastermind, but the court was not

bound to follow the probation officer’s recommendation, particularly where it was

contradicted by Dr. Graham-Howard’s opinion to the contrary. Specifically, the juvenile

court referred to H.J.’s long history of gang affiliation, in addition to the fact that when he

was arrested for the offense, he denied any involvement and claimed he was with a girl

“ ‘on Ramona’ ” all night, loaded on marijuana, and wearing a different outfit.

The court found that the offense was premeditated, summarizing the details of

H.J.’s actions between the initial confrontation with the victim and the subsequent

planning that led to the ambush and killing of the murder victim, and the wounding of the

second victim. It noted that H.J. initially denied involvement in the shooting and denied

gang involvement, indicating he understood and was trying to avoid the ramifications of

his criminal behavior. The court also noted that H.J. had been formally affiliated with the

gang since the age of 12.

Further, the court noted H.J. had a previous successful delinquency case and was

on probation for his second delinquency at the time of the offense, in addition to which,

he had received sanctions through juvenile traffic court and the SARB, demonstrating

that he was aware of the consequences of his actions. Despite his limited intellectual

capacity, there was no evidence presented to indicate that his mental health was an

ongoing issue while he was in custody or that his ability to make decisions and

understand consequences of his actions.

Finally, H.J. had indicated that both his parents and other family members were

gang affiliated and that because, at the time of his arrest, he would soon be 18, his parents

could not tell him what to do because he was a man, and he chose to spend his nights

with other young adults at “ ‘Ramona Blocc.’ ” The court noted that H.J.’s description of

his traumatic childhood was contradicted by other evidence of a lack of child welfare

history and evidence that his parents supported H.J. in seeking counseling and

medications for his PTSD and explosive conduct disorder. While not expressly stated,

the court was obviously aware H.J.’s recounting of an abusive childhood was

exaggerated. There is substantial evidence to support the criminal sophistication factor.

H.J. relies on the probation officer’s conclusion that this particular factor did not

support a transfer to adult court, but fails to acknowledge that the probation officer

otherwise found H.J. should be transferred to adult court, and he points to no authorities

holding that a juvenile court is bound to follow every recommendation contained in a

probation report. On the contrary, it has long been held that a court is not required to

follow the recommendations in probation reports. (People v. Downey (2000) 82

Cal.App.4th 899, 910, citing People v. Warner (1978) 20 Cal. 3d 678, 68.) We

acknowledge the important function performed by probation officers and their reports,

but it is the court that ultimately must weigh the factors and make findings. The weight

to be assigned by the juvenile court to each factor rests within its sound discretion. (C.S.,

supra, 29 Cal.App.5th at pp. 1034-1035.) Further, even if the trial court agreed with

every recommended conclusion found in the probation report, the bottom line was the

probation officer’s determination that H.J. was not amenable to rehabilitation under

juvenile court jurisdiction.

The criminal sophistication factor was but one factor among five addressing the

first overarching inquiry the court had to address in making its ruling. In this respect, we

are reminded that Welfare and Institutions Code section 707, subdivision (a)(3)(A)(i)

states that in determining if this factor has been met, the court may consider any relevant

factor, including but not limited to the factors listed. Criminal sophistication was but one

factor out of five. Because the weight of each factor was a matter for the court to

determine, even if there had been insufficient evidence on one factor, the ruling must

stand if substantial evidence supports the court’s ruling based on other factors present.

Here, the juvenile court followed the procedures required by Welfare and

Institutions Code section 707, subdivision (a)(3), and the record establishes substantial

evidence to support its findings and ruling.

(ii) Whether There is Substantial Evidence to Support the Finding That H.J.

Was Not Amenable to Treatment and Rehabilitation in the Juvenile Court12

H.J. argues that the juvenile court’s finding that he was not amenable to treatment

and rehabilitation under the juvenile court’s jurisdiction is not supported by substantial

12 Under this heading, H.J. includes a few subheadings relating to H.J.’s prior delinquent history, and the success of previous attempts to rehabilitate him, but he makes no legal argument assigning error with respect to those factors. We therefore do not need to address these factors.

evidence. He argues the juvenile court applied the “wrong legal framework” in

considering the likelihood of rehabilitation prior to the expiration of juvenile jurisdiction

under criterion two. He describes the question before the court as “whether the

prosecution proved, clearly and convincingly, that this 17-year-old minor could not have

been rehabilitated within juvenile jurisdiction had the case been handled in juvenile court

in the first instance,” and that the juvenile court did not conduct that inquiry.

H.J. apparently contends that the court should not have considered any factor or

circumstance relating to matters occurring after the murder was charged in adult court in

the first instance. H.J. cites no authority for this interpretation of the law, which would

lead to absurd results. We note that H.J. frames the question as not whether H.J. was now

amenable to rehabilitation, but whether, retrospectively, he would have been amenable at

the time he was initially charged. “It was whether the prosecution proved, clearly and

convincingly, that this 17-year-old minor could not have been rehabilitated within

juvenile jurisdiction had the case been handled in juvenile court in the first instance.” It

is H.J. who has applied the wrong framework to the analysis.

At the end of the day, the juvenile court’s ruling would not be to transfer or retain

jurisdiction of a 17-year-old, but, instead, a 34-year-old man with a history of violence,

including recent felony offenses, extensive gang involvement, and no formal

rehabilitative programs that would accept him. We agree that this case is somewhat of a

unicorn given the unique procedural posture. Any rehabilitative program to which it

might commit H.J. would be a program designed for youths, and populated by youths, but

would be expected to rehabilitate a 34-year-old man with a long history of gang

involvement. H.J. assumes that because he was rejected, his release from custody under

probation supervision was an appropriate rehabilitative treatment program in and of itself,

although none of the services available under adult supervision are the type of intensive

programs that both the probation officer and Dr. Graham-Howard indicated were

necessary for H.J.’s rehabilitation. H.J. ignores the fact that the entire focus of retaining a

youth under juvenile court jurisdiction is for rehabilitation, and to rehabilitate H.J. would

require intensive programs no longer available to him due to his age and tendencies, so it

is H.J.’s own framework that is faulty.

As we have explained, H.J. cites no authority for this interpretation of the law.

Further, H.J. asserts, without record support, that the “reasoning did not show, clearly and

convincingly, that [H.J.] could not have been rehabilitated within juvenile jurisdiction. It

showed that, by the time the remand hearing was finally held, [H.J.] had aged out of

meaningful juvenile placement and had only a short period of remaining control under

present conditions.” To the contrary, the evidence was compelling and supports the

court’s reasoning, which demonstrated by clear and convincing evidence that the

theoretical two years during which the juvenile court could have retained jurisdiction was

inadequate, given that H.J. was rejected by the most appropriate program available. As

the probation officer testified, because H.J. was over the age of 25, he could not be

housed at the ARISE program with other youthful offenders, so he would “fall under the

two-year span of control with both services and custodial sanctions if necessary.”

The probation officer went on to explain, this would require H.J.’s release from

custody and he would receive his services from the probation department’s adult daily

reporting center, where they would give referral to workforce development, Department

of Behavioral Health if he required mental health services, and access to transitional

services to see if he were eligible for food stamps, as well as homeless services and

medical treatment for ailments.

As the court explained, H.J. was not suitable for the SYTF program designed to

assist youthful offenders aged 14 to 25. Moreover, given H.J.’s age, violent proclivities,

and entrenchment in the gang lifestyle, placing him in a program with younger offenders

created a serious security issue, for which reason, H.J. was rejected by the SYTF. This

factor, while not enumerated in the statute, had to be considered in deciding whether

transfer to adult court was required, and was “a relevant factor” the juvenile court was

authorized to consider.

Further, while Aguas had testified about the ARC program in Los Angeles, there

was no evidence that any actual inquiries had been made about H.J.’s eligibility or

acceptance in that program. In other words, the only real “program” option available to

H.J. was a supervision program, not intensive rehabilitative program to address is gang

lifestyle and related issues.

The court added that while the court could retain jurisdiction for two additional

years under probation supervision, actual information about whether H.J. benefitted from

programs available to him during his lengthy incarceration showed that while he

participated in educational programs, narcotics anonymous meetings, an alternatives to

violence class, and vocational computer literacy, he had ongoing disciplinary issues,

including battery on fellow inmates, fighting, participation in riots, and battery with a

weapon causing serious injury.

The court also noted that he was recently convicted of two felonies, including a

violation of section 4502 (inmate in possession of a weapon) and section 245, subdivision

(a)(1) (assault with a deadly weapon, not a firearm, or force likely to cause great bodily

injury). We understand that H.J. would have preferred that this evidence be excluded, but

the pendency of adult criminal charges will inevitably affect H.J.’s suitability for release

from custody under probation supervision. Significantly, the court noted that his gang

affiliation continues to the present, and H.J. would need to participate in ARC for three

years in order to rehabilitate. Three years is one year beyond the juvenile court’s

jurisdiction.

The court went on to explain that Dr. Graham-Howard’s SAVRY assessment

indicated a high risk of recidivism, and that her plan lacked any gang intervention despite

the fact the original offenses were gang related. The court therefore concluded: “Given

that the underlying offense was gang related and that [H.J.] continues to act violently

while in custody at the behalf of the gang, the Court finds that disassociation from the

gang life is the significant central issue that would need to be addressed in any plan of

rehabilitation. The Court does not find that two years of juvenile probation would be

adequate time for [H.J.] to successfully rehabilitate and disassociate from his entrenched

gang criminal lifestyle.”

H.J. also argues, as a sub-argument, that the court’s finding of the gravity of the

offense was unsupported by the evidence and that the finding was made using the wrong

legal framework. Yet, the gravity of the offense, murder, was a factor that was

acknowledged by the probation officer’s report as well as in the assessment by Dr.

Graham-Howard. Although H.J. argues that there were mitigating factors that should

have been considered in determining the applicability of this factor, it was within the

juvenile court’s discretion whether, and to what extent, any mitigating factors should

affect its finding as to the gravity of the offense. Here, the juvenile court considered the

various mitigating factors (his mental state, his degree of involvement in the crime, and

his mental and emotional development) and rejected them. This was a matter within the

juvenile court’s discretion. The gravity of the offense was properly considered.

The finding of unamenability is supported by substantial evidence.

DISPOSITION

The order granting the motion to transfer H.J. to adult court is affirmed. The

matter is remanded for further proceedings in adult court related to resentencing pursuant

to our prior opinion: to provide H.J. an opportunity to present evidence of mitigation due

to his youth, pursuant to the holding of Franklin, supra, and for the court to exercise its

discretion whether to strike or dismiss any of the firearm enhancements within the

meaning of Senate Bill No. 620, and any other resentencing relief to which H.J. may be

entitled on the basis of any other new legislation. Additionally, the trial court is directed

to amend the abstract of judgment to correctly note the date of commission of the crimes

and to award an additional day of presentence custody credits, the latter of which should

also be reflected in the court’s minutes. The clerk shall then forward a certified copy of

the amended abstract of judgment to the Department of Corrections and Rehabilitation.

CERTIFIED FOR PUBLICATION

RAMIREZ

P. J.

We concur:

MILLER

CODRINGTON

Authorities cited

Opinion · public domain