Can the District Attorney have discretion to directly file a case in adult court
against a child 14 years old or older ?
Yes. Under Proposition 21, a child as young as 14 years of age can be prosecuted directly in adult court under Welfare and Institutions Code section 707(d)(2). These are for crimes the carry life imprisonment or death if prosecuted as an adult. These also include offenses involving personal use of firearm in commission of offense. (PC 12022.5). These also include WIC 707 (b) offenses where minor has a prior 707(b) offense, or is gang related, hate crimes, or the victim is 65 or older or disabled. This section of WIC 707(d)(2) is discretionary with the prosecutor as to whether this case is filed in adult court.
Is there any provision in the law where it is mandatory that the prosecutor file against a child
14 years old or older in adult court?
Yes. Murder and certain sex crimes require a mandatory filing in adult court.
A minor who is 14 years of age or older who is accused of commiting murder and if one of the circumstances stated in subdivision (a) of section 190.2 of the Penal Code is alleged by the District Attorneys office, and the DA alleges that the child personally killed the victim.
The must file in adult court on the following types of sex crimes, rape as described in paragraph (2) of subdivision (a) of Section 261 of the Penal Code, Spousal rape, forcible sex offenses in concert with another, forcible lewd and lascivious acts on a child under the age of 14 years of age as described in subdivision (b) of Section 288 of the Penal Code, Sexual penetration as described in subdivision (a) of Section 289 of the Penal Code, Sodomy or Oral Copulation by force, Lewd and Lascivious acts on a child under the age of 14 unless the defendant qualified for probation.
Are there any other ways the prosecutor can directly file against my child in adult court?
Yes. If your child is 16 years of age or older and has committed an offense listed under Welfare and Institutions Code section 707(b), the DA can directly file against a child in adult court. Although the prosecutor can directly file for these alleged crimes in adult court, many juvenile prosecutors still proceed by way of a fitness hearing in juvenile court before sending the case to adult court.
When does a Juvenile Court get involved in deciding on whether to send my child to adult court?
Although under proposition 21, the District Attorney can file
a case directly against a child in Adult court for certain types
of serious felonies, the more common method is through a “Fitness Hearing”
under 707 of the Welfare and Institutions Code. If the case your
child is accused of is a serious felony, the district attroney can
petition the court for a 707 fitness hearing. At a fitness
hearing, the juvenile judge would decide whether to send
your child to adult court.
Under 707 of the Welfare and Institutions Code, there
are certain felony crimes considered “serious” enough to be given
consideration of adult court.
They are the following:
as provided in subdivision (a) or (b) of the Section 451 of the Penal
with force or violence or threat of great bodily harm.
by force, violence, duress, menace, or threat of great bodily harm.
or lascivious act as provided in subdivision (b) of Section 288 of the
copulation by force, violence, duress, menace or threat of great bodily
offence specified in subdivision (a) of Section 289 of the Penal Code.
(10) Kidnapping for purpose of robbery.
(11) Kidnapping with bodily harm.
(12) Attempted murder.
(13) Assault with a firearm or destructive device.
(14) Assault by any means of force likely to produce great
(15) Discharge of a firearm into an inhabited or occupied
(16) Any offense described in Section 1203.09 of the Penal
(17) Any offense described in Section 12022.5 or 12022.53
of the Penal Code.
(18) Any felony offense in which the minor personally used
a weapon listed in subdivision (a)
of Section 12020 of the Penal Code.
(19) Any felony offense described in Section 136.1 or 137
of the Penal Code.
(20) Manufacturing, compounding, or selling one-half ounce
or more of salt or solution of a
controlled substance specified in subdivision (e) of Section
11055 of the Health and Safety
(21) Any violent felony, as defined in subdivision (c)
of Section 667.5 of the Penal Code,
which would also constitute a felony violation of
subdivision (b) of Section 186.22 of the Penal
(22) Escape, by the use of force or violence, from any
county juvenile hall, home, ranch, camp,
or forestry camp in violation of subdivision (b) of Section
871 where great bodily injury is
intentionally inflicted upon an employee of the juvenile
facility during the commission of the
(23) Torture as described in Sections 206 and
206.1 of the Penal Code.
(24) Aggravated mayhem, as described in Section 205 of
(25) Carjacking, as described in Section 215 of the Penal
Code, while armed with a dangerous or deadly weapon.
(26) Kidnapping, as punishable in subdivision (d) of Section
208 of the Penal Code.
(27) Kidnapping, as punishable in Section 209.5 of the
(28) The offense described in subdivision (c) of Section
12034 of the Penal Code.
(29) The offense described in Section 12308 of the Penal
(30) Voluntary manslaughter, as described in subdivision
(a) of Section 192 of the Penal Code.
What is the criteria that the judge will use in determining
whether my child be sent to adult court?
Under Welfare and Institutions Code 707(a), the juvenile
judge must evaluate five criteria:
1 – the degree of criminal sophistication exhibited
by your child.
2 – whether your child can be rehabilitated before juvenile
court jurisdiction expires;
3 – your child previous delinquent history.
4 – the success of previous attempts by juvenile
court to rehabilitate your child; and
5 – the circumstances and
gravity of the offenses alleged to have been committed by your child
Who has the burden of proof that the child is amenable on a petition for a 707(b) offense?
The burden of proof is on the juvenile defense lawyer to show that the child is amenable for all five criteria by a preponderance of the evidence. In most circumstances, the probation department will concede that the child is amenable under criteria 2, 3, and 4. The fitness hearing will often be focused on criteria 1, the degree of sophistication exhibited by the child and criteria 5, the circumstances and gravity of the offense alleged to have been committed by the child.
Must a Juvenile Court Judge make an express findings on amenability on each of the five criteria?
Yes. When the prosecutor seeks to pursue a fitness hearing pursuant to 707(b)(c), the Juvenile Court must make express findings on amenability on each of the five criteria where the minor is found fit. Failure to do so is reversible error.
What if the Probation department fails to prepare a fitness report in a timely fashion. Can my child be released from custody?
Yes. If the probation officer fails to prepare a fitness report within 13 days of the detention order, the child must be released from custody.
Can a child waive his or her right to a fitness hearing?
It depends on the age of the child. If the child is 18, yes the child can waive a fitness hearing. If the child is under 18, the child may not waive a fitness hearing. Many attorneys whose practice is primarily adult cases prefer to waive fitness hearings. By contrast most juvenile attorneys do not recommend waiving a fitness hearing.
Does 707(b) apply to attempted crimes listed in that section?
Welfare and Institutions Code section 707(b) does not apply to attempted crimes unless it is expessly listed in that section.
The prosecutor did a direct file on my childs case and the case is already in adult court. If my child is going to state prison, is there anyway to allow the child to spend his or her time prison sentence at the California Youth Authority (now known as DJJ) instead of an adult state prison?
Yes. Under the following circumstances, an adult court can commit a child to the Department of Juvenile Justice.
(1) The adult court can make a direct commitment to the Department of Juvenile Justice if the child was under 16 at the time of offense, the offense is one listed under WIC 707(b), the child was under 21 at the time of apprehension and can complete the term by age 25.
(2) M Cases – Require the WIC 1731.5(c) housing reference on the court minute order indicating the court’s desire to have the youth placed in DJJ. If they can complete the term by age 21, they can be delivered after age 18. If they cannot finish the term by age 21, they will transfer to adult prison on their 18th birthday.
(3) E Cases – Abstract of judgement makes no reference to WIC 1731.5(c), Placement in DJJ strictly due to age, and the child can stay at DJJ if the term can be completed by age 21.
(4) Reverse Remand – Cases that result in the dismissal of 602(b) or 707(d) offenses and where the child is only convicted of a non 602 or 707(d) offense in adult court. However, under California Rules of Court 4.510, if a child is convicted of a 602(b) or 707(d) offense, the minor must be sentenced as an adult.
Can I hire a juvenile defense lawyer to represent my child?
Yes. The 707 fitness hearing is a crucial juvenile proceeding.
You should not take a wait and see approach. If you lose this hearing, the District Attorney will have your child tried as an adult and your child may be facing lengthy incarceration in a state prison.
Call the Law Offices of George Kita for a FREE consultation at
626-232-0970, or email him at [email protected]