AMENDMENTS TO THE CALIFORNIA RULES OF COURT Adopted by the Judicial Council on May 19, 2017, effective May 22, 2017 Rule 4.116. Certification to juvenile court.................................................................. 2 1 Rule 5.664. Training requirements for children’s counsel in delinquency 2 proceedings (§ 634.3) .................................................................................................. 2 3 Rule 5.766. General provisions ................................................................................... 3 4 Rule 5.768.

Report of probation officer ...................................................................... 4 5 Rule 5.770. Conduct of fitness transfer of jurisdiction hearing under

section 6 707(a)(1) ..................................................................................................................... 5 7 Rule 5.772. Conduct of fitness hearings under sections 707(a)(2) and 707(c) 8 [Repealed] ................................................................................................................. 10 9 10

2 Rule 4.116. Certification to juvenile court 1 2 (

a) Application 3 4 This rule applies to all cases not filed in juvenile court in which the person charged 5 by an accusatory pleading appears to be under the age of 18, except (1) when the 6 child has been found not a fit and proper subject to be dealt with under the juvenile 7 court law or (2) when the prosecution was initiated as a criminal case under 8 Welfare and Institutions Code

section 602(

b) or 707(

d) when jurisdiction over the 9 child has been transferred from the juvenile court under Welfare and Institutions 10 Code

section 707. 11 12 (Subd (

a) amended effective May 22, 2017; adopted effective January 1, 2001; previously 13 amended effective January 1, 2007.) 14 15 (b)–(d) * * * 16 17 Rule 4.116 amended effective May 22, 2017; adopted as rule 241.2 effective January 1, 1991; 18 previously amended and renumbered effective January 1, 2001; previously amended July 1, 1991, 19 and January 1, 2007. 20 21 Rule 5.664. Training requirements for children’s counsel in delinquency 22 proceedings (§ 634.3) 23 24 (a) * * * 25 26 (

b) Education and training requirements 27 28 (1) * * * 29 30

(2) Attorney training must include: 31 32 (A) –(P) * * * 33 34 (

Q) Fitness Transfer of jurisdiction to criminal court hearings and advocacy 35 in adult court; 36 37 (R)–(S) * * * 38 39 (Subd (

b) amended effective May 22, 2017.) 40 41

3 (c)–(d) * * * 1 2 Rule 5.664 amended effective May 22, 2017; adopted effective July 1, 2016. 3 4 Rule 5.766. General provisions 5 6 (

a) Fitness hearing Hearing on transfer of jurisdiction to criminal court (§ 707) 7 8 A child who is the subject of a petition under

section 602(

a) and who was 14 years 9 or older at the time of the alleged felony offense may be considered for prosecution 10 under the general law in a court of criminal jurisdiction. The prosecuting attorney 11 district attorney or other appropriate prosecuting officer may request a hearing to 12 determine whether the child is a fit and proper subject to be dealt with under the 13 juvenile court law make a motion to transfer the child from juvenile court to a court 14 of criminal jurisdiction, in one of the following circumstances: 15 16 (3)

(1) Under

section 707(c), The child was 14 years or older at the time of the 17 alleged offense listed in

section 707(b). 18 19 (1)

(2) Under

section 707(a)(1), The child was 16 years or older at the time of the 20 alleged felony offense if the offense is not listed in

section 707(b). 21 22

(2) Under

section 707(a)(2), the child was 16 years or older at the time of the 23 alleged felony offense not listed in

section 707(

b) and has been declared a 24 ward of the court under

section 602 on at least one prior occasion and: 25 26 (

A) The child has previously been found to have committed two or more 27 felony offenses; and 28 29 (

B) The felony offenses in the previously sustained petitions were 30 committed when the child was 14 years or older. 31 32 (Subd (

a) amended effective May 22, 2017; previously amended effective January 1, 1996, 33 and January 1, 2001.) 34 35 (

b) Notice (§ 707) 36 37 Notice of the fitness transfer hearing must be given at least five judicial days before 38 the fitness hearing. In no case may notice be given following the attachment of 39 jeopardy. 40 41 (Subd (

b) amended effective May 22, 2017; previously amended effective January 1, 2007.) 42 43

4 1 (

c) Prima facie showing 2 3 On the child’s motion, the court must determine whether a prima facie showing has 4 been made that the offense alleged is an offense that makes the child subject to 5 transfer as set forth in subdivision (a). 6 7 (Subd (

c) adopted effective May 22, 2017.) 8 9 (c)(

d) Time of fitness transfer hearing—rules 5.774, 5.776 10 11 The fitness transfer of jurisdiction hearing must be held and the court must rule on 12 the issue of fitness the request to transfer jurisdiction before the jurisdiction hearing 13 begins. Absent a continuance under rule 5.776 or the child’s waiver of the statutory 14 time period to commence the jurisdiction hearing, the jurisdiction hearing must 15 begin within the time limits under rule 5.774. 16 17 (Subd (

d) amended and relettered effective May 22, 2017; adopted as subd (c); previously 18 amended effective January 1, 2007.) 19 20 Rule 5.766 amended effective May 22, 2017; adopted as rule 1486 effective January 1, 1991; 21 previously amended and renumbered effective January 1, 2007. 22 23 Rule 5.768. Report of probation officer 24 25 (

a) Contents of report (§ 707) 26 27 The probation officer must investigate the issue of fitness prepare and submit to the 28 court a report on the behavioral patterns and social history of the child being 29 considered.

The report must include information relevant to the determination of 30 whether or not the child would be amenable to the care, treatment, and training 31 program available through the facilities of the juvenile court, including information 32 regarding all of the criteria listed in rules 5.770 and 5.772 should be retained under 33 the jurisdiction of the juvenile court or transferred to the jurisdiction of the criminal 34 court, including information regarding all of the criteria in

section 707(a)(2). The 35 report must also include any written or oral statement offered by the victim 36 pursuant to

section 656.2. The report may also include information concerning: 37 38

(1) The social, family, and legal history of the child; 39 40

(2) Any statement the child chooses to make regarding the alleged offense; 41 42

(3) Any statement by a parent or guardian; 43

5 1

(4) If the child is or has been under the jurisdiction of the court, a statement by 2 the social worker, probation officer, or Youth Authority parole agent who has 3 supervised the child regarding the relative success or failure of any program 4 of rehabilitation; and 5 6

(5) Any other information relevant to the determination of fitness. 7 8 (Subd (

a) amended effective May 22, 2017; previously amended effective January 1, 2007.) 9 10 (

b) Recommendation of probation officer (§§ 281, 707) 11 12 If the court, under

section 281, orders the probation officer to include a 13 recommendation, Tthe probation officer must make a recommendation to the court 14 as to whether the child is a fit and proper subject to be dealt with under the juvenile 15 court law should be retained under the jurisdiction of the juvenile court or 16 transferred to the jurisdiction of the criminal court. 17 18 (Subd (

b) amended effective May 22, 2017; previously amended effective January 1, 2007.) 19 20 (

c) Copies furnished 21 22 The probation officer’s report on the behavioral patterns and social history of the 23 child must be furnished to the child, the parent or guardian, and all counsel at least 24 24 hours two court days before commencement of the fitness hearing on the 25 motion. A continuance of at least 24 hours must be granted on the request of any 26 party who has not been furnished the probation officer’s report in accordance with 27 this rule. 28 29 (Subd (

c) amended effective May 22, 2017; previously amended effective January 1, 2007.) 30 31 Rule 5.768 amended effective May 22, 2017; adopted as rule 1481 effective January 1, 1991; 32 previously amended and renumbered effective January 1, 2007. 33 34 Rule 5.770. Conduct of fitness transfer of jurisdiction hearing under

section 35 707(a)(1) 36 37 (

a) Burden of proof (§ 707(a)(1)) 38 39 In a fitness transfer of jurisdiction hearing under

section 707(a)(1), the burden of 40 proving that the child is unfit there should be a transfer of jurisdiction to criminal 41 court jurisdiction is on the petitioner, by a preponderance of the evidence. 42 43

6 (Subd (

a) amended effective May 22, 2017; previously amended effective January 1, 1996, 1 January 1, 2001, and July 1, 2002.) 2 3 (

b) Criteria to consider (§ 707(a)(1)) 4 5 Following receipt of the probation officer’s report and any other relevant evidence, 6 the court may find that order that the child is not a fit and proper subject to be dealt 7 with under juvenile court law be transferred to the jurisdiction of the criminal court 8 if the court finds: 9 10

(1) The child was 16 years or older at the time of the any alleged felony offense, 11 and or the child was 14 or 15 years at the time of an alleged felony offense 12 listed in

section 707(b); and 13 14

(2) The child would not be amenable to the care, treatment, and training program 15 available through facilities of the juvenile court, should be transferred to the 16 jurisdiction of the criminal court based on an evaluation of all of the 17 following criteria in

section 707(a)(2) as provided in that section.: 18 19 (

A) The degree of criminal sophistication exhibited by the child; 20 21 (

B) Whether the child can be rehabilitated before the expiration of 22 jurisdiction; 23 24 (

C) The child’s previous delinquent history; 25 26 (

D) The results of previous attempts by the court to rehabilitate the child; 27 and 28 29 (

E) The circumstances and gravity of the alleged offense. 30 31 (Subd (

b) amended effective May 22, 2017; adopted as subd (b); previously amended and 32 relettered as subd (

c) effective January 1, 1996; previously amended and relettered 33 effective January 1, 2001; previously amended effective January 1, 2007.) 34 35 (

c) Findings under

section 707(a)

(1) Basis for order of transfer 36 37 The findings must be stated in the order. 38 39

(1) Finding of fitness 40 41 The court may find the child to be fit and state that finding. 42 43

(2) Finding of unfitness 1 2 If the court determines the child is unfit, the court must find that: 3 4 (

A) The child was 16 years or older at the time of the alleged offense; and 5 6 (

B) The child would not be amenable to the care, treatment, and training 7 program available through the juvenile court because of one or a 8 combination of more than one of the criteria listed in (b)(2). 9 10 If the court orders a transfer of jurisdiction to the criminal court, the court must 11 recite the basis for its decision in an order entered on the minutes. 12 13 (Subd (

c) amended effective May 22, 2017; adopted as subd (c); previously amended and 14 relettered as subd (

d) effective January 1, 1996; amended and relettered effective January 15 1, 2001; previously amended effective July 1, 2002, and January 1, 2007.) 16 17 (

d) Maintenance of juvenile court jurisdiction 18 19 If the court determines that one or more of the criteria listed in (b)(2) apply to the 20 child, the court may nevertheless find that the child is amenable to the care, 21 treatment, and training program available through the juvenile court and may find 22 the child to be a fit and proper subject to be dealt with under juvenile court law. 23 24 (

e) Extenuating circumstances 25 26 The court may consider extenuating or mitigating circumstances in the evaluation 27 of each relevant criterion. 28 29 (f)(

d) Procedure following findings 30 31

(1) If the court finds the child to be fit should be retained within the jurisdiction 32 of the juvenile court, the court must proceed to jurisdiction hearing under rule 33 5.774. 34 35

(2) If the court finds the child to be unfit should be transferred to the jurisdiction 36 of the criminal court, the court must make orders under

section 707.1 relating 37 to bail and to the appropriate facility for the custody of the child, or release 38 on own recognizance pending prosecution. The court must set a date for the 39 child to appear in criminal court and dismiss the petition without prejudice 40 upon the date of that appearance. 41 42

(3) When the court rules on the request to transfer the child to the jurisdiction of 1 the criminal court, the court must advise all parties present that appellate 2 review of the order must be by petition for extraordinary writ. The 3 advisement may be given orally or in writing when the court makes the 4 ruling. The advisement must include the time for filing the petition for 5 extraordinary writ as set forth in subdivision (

g) of this rule. 6 7 (Subd (

d) relettered and amended effective May 22, 2017; adopted as subd (d); previously 8 relettered as subd (

g) effective January 1, 1996, and as subd (

f) effective January 1, 2001; 9 previously amended effective July 1, 2002, and January 1, 2007.) 10 11 (g)(

e) Continuance to seek review 12 13 If the prosecuting attorney informs the court orally or in writing that a review of a 14 finding of fitness of the court’s decision not to transfer jurisdiction to the criminal 15 court will be sought and requests a continuance of the jurisdiction hearing, the 16 court must grant a continuance for not less than two judicial days to allow time 17 within which to obtain a stay of further proceedings from the reviewing judge or 18 appellate court. 19 20 (Subd (

e) relettered and amended effective May 22, 2017; adopted as subd (e); previously 21 relettered as subd (

h) effective January 1, 1996, and as subd (

g) effective January 1, 2001; 22 previously amended effective July 1, 2002, and January 1, 2007.) 23 24 (h)(

f) Subsequent role of judicial officer 25 26 Unless the child objects, the judicial officer who has conducted a fitness hearing on 27 a motion to transfer jurisdiction may participate in any subsequent contested 28 jurisdiction hearing relating to the same offense. 29 30 (Subd (

f) relettered and amended effective May 22, 2017; adopted as subd (f); relettered as 31 subd (

i) effective January 1, 1996; previously amended and relettered as subd (

h) effective 32 January 1, 2001.) 33 34 (i)(

g) Review of fitness determination on a motion to transfer jurisdiction to 35 criminal court 36 37 An order that a child is or is not a fit and proper subject to be dealt with under the 38 juvenile court law granting or denying a motion to transfer jurisdiction of a child to 39 the criminal court is not an appealable order. Appellate review of the order is by 40 petition for extraordinary writ. Any petition for review of a judge’s order 41 determining the child unfit to transfer jurisdiction of the child to the criminal court, 42 or denying an application for rehearing of the referee’s determination of unfitness 43

9 to transfer jurisdiction of the child to the criminal court, must be filed no later than 1 20 days after the child’s first arraignment on an accusatory pleading based on the 2 allegations that led to the unfitness determination transfer of jurisdiction order. 3 4 (Subd (

g) relettered and amended effective May 22, 2017; adopted as subd (g); previously 5 relettered as subd (

j) effective January 1, 1996; amended and relettered effective 1, 2001; 6 previously amended as subd (

i) effective July 1, 2002.) 7 8 (

h) Postponement of plea prior to transfer hearing 9 10 If a hearing for transfer of jurisdiction has been noticed under

section 707, the court 11 must postpone the taking of a plea to the petition until the conclusion of the transfer 12 hearing, and no pleas that may have been entered already may be considered as 13 evidence at the hearing. 14 15 (Subd (

h) adopted effective May 22, 2017.) 16 17 Rule 5.770 amended effective May 22, 2017; adopted as rule 1482 effective January 1, 1991; 18 previously amended effective January 1, 1996, January 1, 2001, and July 1, 2002; previously 19 amended and renumbered effective January 1, 2007. 20 21 Advisory Committee Comment 22 23 Subdivision (b). This subdivision reflects changes to

section 707 as a result of the passage of 24 Senate Bill 382 (Lara; Stats. 2015, ch. 234) and Proposition 57, the Public Safety and 25 Rehabilitation Act of 2016. SB 382 was intended to clarify the factors for the juvenile court to 26 consider when determining whether a case should be transferred to criminal court by emphasizing 27 the unique developmental characteristics of children and their prior interactions with the juvenile 28 justice system.

Proposition 57 provided that its intent was to promote rehabilitation for juveniles 29 and prevent them from reoffending, and to ensure that a judge makes the determination that a 30 child should be tried in a criminal court. Consistent with this intent, the committee urges juvenile 31 courts—when evaluating the statutory criteria to determine if transfer is appropriate—to look at 32 the totality of the circumstances, taking into account the specific statutory language guiding the 33 court in its consideration of the criteria. 34 35 Subdivision (c). While this rule and

section 707 only require the juvenile court to recite the basis 36 for its decision when the transfer motion is granted, the advisory committee believes that juvenile 37 courts should, as a best practice, state the basis for their decisions on these motions in all cases so 38 that the parties have an adequate record from which to seek subsequent review. 39 40

10 Rule 5.772. Conduct of fitness hearings under sections 707(a)(2) and 707(c) 1 [Repealed] 2 3 (

a) Presumption (§§ 707(a)(2), 707(c)) 4 5 In a fitness hearing under

section 707(a)(2) or 707(c), the child is presumed to be 6 unfit, and the burden of rebutting the presumption is on the child, by a 7 preponderance of the evidence. 8 9 (

b) Prima facie showing 10 11 On the child’s motion, the court must determine whether a prima facie showing has 12 been made that the offense alleged is a felony or is specified in

section 707(b). 13 14 (

c) Criteria to consider (§ 707(a)(2)) 15 16 Following receipt of the probation officer’s report and any other relevant evidence, 17 the court must find that the child is not a fit and proper subject to be dealt with 18 under the juvenile court law, unless the court finds: 19 20

(1) The child was under 16 years of age at the time of the alleged felony offense; 21 22

(2) The child had not been declared a ward at the time of the alleged offense or 23 any time previously; 24 25

(3) The child has not previously been found to have committed two or more 26 felony offenses; 27 28

(4) The prior felony offenses were committed before the child had reached the 29 age of 14 years; or 30 31

(5) The child would be amenable to the care, treatment, and training program 32 available through the juvenile court, based on evaluation of each of the 33 following criteria: 34 35 (

A) The degree of criminal sophistication exhibited by the child; 36 37 (

B) Whether the child can be rehabilitated before the expiration of 38 jurisdiction; 39 40 (

C) The child’s previous delinquent history; 41 42

11 (

D) The results of previous attempts by the court to rehabilitate the child; 1 and 2 3 (

E) The circumstances and gravity of the alleged offense. 4 5 (

d) Findings under

section 707(c) 6 7 Following receipt of the probation officer’s report and any other relevant evidence, 8 the court must find that the child is not a fit and proper subject to be dealt with 9 under the juvenile court law, unless the court finds: 10 11

(1) The child was under 14 years of age at the time of the offense specified in 12

section 707(b); 13

(2) The offense alleged is not listed in

section 707(b); or 14 15

(3) The child would be amenable to the care, treatment, and training program 16 available through the juvenile court, based on evaluation of each of the 17 criteria described in (c)(5). 18 19 (

e) Extenuating circumstances 20 21 The court may consider extenuating or mitigating circumstances in the evaluation 22 of each relevant criterion. 23 24 (

f) Findings (§§ 707(a)(2), 707(c)) 25 26 The findings must be stated in the order. 27 28

(1) Finding of unfitness (§ 707 (a)(2)) 29 30 If the child has failed to rebut the presumption of unfitness, the court must 31 find that: 32 33 (

A) The child has previously been found to have committed two or more 34 offenses listed in

section 707(

b) and was 14 years of age or older at the 35 time of the felony offenses; and 36 37 (

B) The child would not be amenable to the care, treatment, and training 38 program available through the juvenile court because of one or a 39 combination of more than one of the criteria in (c)(5). 40 41

(2) Finding of unfitness (§ 707(c)) 1 2 If the child has failed to rebut the presumption of unfitness, the court must 3 find that: 4 5 (

A) The child was 14 years or older at the time of the alleged offense and 6 the offense is listed in

section 707(b); and 7 8 (

B) The child would not be amenable to the care, treatment, and training 9 program available through the juvenile court because of one or a 10 combination of more than one of the criteria in (c)(5). 11 12

(3) Finding of fitness (§§ 707(a)(2), 707(c)) 13 14 In order to find the child fit, the court must find that the child would be 15 amenable to the care, treatment, and training program through the juvenile 16 court on each and every criterion in (c)(5), and the court must state that 17 finding of amenability under each and every criterion. 18 19 (

g) Procedure following findings 20 21

(1) If the court finds the child to be unfit, the court must make orders under 22

section 707.1 relating to bail, and to the appropriate facility for the custody of 23 the child, or release on own recognizance pending prosecution. The court 24 must dismiss the petition without prejudice. 25 26

(2) If the court finds the child to be fit, the court must proceed to jurisdiction 27 hearing under rule 5.774. 28 29 (

h) Continuance to seek review 30 31 If the prosecuting attorney informs the court orally or in writing that a review of a 32 finding of fitness will be sought and requests a continuance of the jurisdiction 33 hearing, the court must grant a continuance for not less than 2 judicial days to allow 34 time within which to obtain a stay of further proceedings from the reviewing judge 35 or appellate court. 36 37 (

i) Subsequent role of judicial officer 38 39 Unless the child objects, the judicial officer who has conducted a fitness hearing 40 may participate in any subsequent contested jurisdiction hearing relating to the 41 same offense. 42 43

13 (

j) Review of fitness determination 1 2 An order that a child is or is not a fit and proper subject to be dealt with under the 3 juvenile court law is not an appealable order. Appellate review of the order is by 4 extraordinary writ.

Any petition for review of a judge’s order determining the child 5 to be unfit or denying an application for rehearing of the referee’s determination of 6 unfitness must be filed no later than 20 days after the child’s first arraignment on an 7 accusatory pleading based on the allegations that led to the unfitness determination. 8 9 Rule 5.772 repealed effective May 22, 2017; adopted as rule 1483 effective January 1, 1991; 10 previously amended effective January 1, 1996, and January 1, 2001; previously amended and 11 renumbered effective January 1, 2007; previously amended effective January 1, 2009. 12 13 14 15