When a minor engages in a delinquent act, the case is adjudicated in the juvenile court, which is different from the criminal justice system. The primary purpose of juvenile courts is to rehabilitate and provide minors with the education and resources needed to prevent future crime, unlike the criminal court, which is more punitive than rehabilitative.

Unluckily, not every time a juvenile commits a crime, the case is adjudicated in juvenile court. A minor can be tried in a criminal court and face criminal penalties like the ones adults face. However, before matters are transferred to the adult court, judges in the juvenile court hold transfer hearings. At the Orange County Criminal Lawyer, we can provide legal representation when a judge decides whether to try your child as a minor or an adult.

Legal Definition of a Transfer Hearing

Also known as a fitness hearing, a transfer hearing is defined under WIC 707 as a legal proceeding in the juvenile where a juvenile judge decides if a minor should be tried as an adult. If the court determines that the youth is fit for adjudication under the juvenile court, they will be tried there. However, if the court deems the minor unfit, they will be transferred to the adult criminal system for trial.

The court proceeding usually happens after the detention hearing. Before the adjudication hearing, the prosecuting team requests the court to decide if the minor should stand trial in the adult court. The reason prosecutors make this request is the severity of the crime in question and the child’s age.

When deciding whether to transfer your child or not, the judge considers the following criteria:

  • The kind of offense in question

  • Your minor’s delinquency record

  • How the minor has performed in the previous rehabilitative programs

  • Prospects for the child improving

  • Gravity and facts of the offense the minor is alleged to have committed

The criteria are further discussed below:

  1. The Kind of Offense in Question

If, based on the type of crime committed by your child, the judge finds that the minor exhibited high levels of criminal sophistication, the judge can rule the youth is not fit to be adjudicated in the juvenile court. The judge has the discretion to express the findings of this criterion. They usually consider the age, intellectual capacity, physical, emotional and mental well-being of the child at the time of the crime.

The judge also looks at how your child’s activities affect the family, the surroundings, and society in general. If the minor understands and appreciates the risks and ramifications for their conduct, the judge may decide they are fit to be adjudicated in the juvenile court. However, when the child is seen not to appreciate the risks and consequences of their conduct, the case is transferred to an adult court.

  1. The Prospects of the Child Improving

The judge also looks at the possibility of your child improving after being put under a rehabilitative program before it ends. Suppose your child is to be committed in a Division of Juvenile Justice (DJJ) until they turn twenty-five. In that case, the judge will consider this period to establish if it’s enough to rehabilitate the juvenile. The child will be transferred to an adult court if the judge concludes the minor cannot grow and mature within this duration. However, if the time is enough for the child to benefit from the program, the kid will be deemed fit to be tried in a juvenile court.

  1. Your Child’s Delinquency Record

The judge will look at the previous cases involving your minor that have been handled in the juvenile delinquency court. These records contain information on:

  • The nature and extent of the delinquency act committed by the minor

  • The impact of the offense on your family and the society

Delinquency records also contain information about the effects of the delinquency act by your child on the environment and the juvenile’s trauma stemming from prior criminal conduct.

  1. The Nature of Past Treatment and the Child’s performance Under the Program

Suppose your child has a previous record and had been placed in treatment or rehabilitative program. In that case, the court has a way of evaluating the performance to determine whether the program was successful or not. Additionally, the court will look at the minor’s service and its efficacy. The minor will be transferred to a criminal court if it’s concluded the program was not a success in the past and that placing the child in the same program is likely to fail hence the need to have them tried in an adult court.

  1. Gravity and Facts of the Offense the Minor is Alleged to Have Committed

The judge will evaluate the circumstances or factors that led to the minor committing the crime. Different reasons push minors into the commission of delinquent acts, including mental illness and actual conduct. Another consideration is the psychological and intellectual development of the child to determine the level of the crime committed.

Remember, your attorney has the burden of proof in this petition. The juvenile attorney must demonstrate that your child is amenable to all the five factors by most evidence. The probation department will agree the child is amenable based on whether the minor has been rehabilitated before, the delinquent history of the child, and the success of the previous rehabilitative programs.

On the other hand, the fitness hearing focuses on the level of criminal sophistication shown by the child and the circumstances of the offense in question.

As provided for in California statutes and particular circumstances, a transfer hearing must be considered before a prosecutor decides to start the hearing. When your child commits a crime like homicide and any of the events outlined under PC 190.2 subdivision (a) at the age of 14 or above, the law requires the direct filing of charges against the child in an adult court system.

Furthermore, suppose the child commits rape, spousal rape, forcible sex offense, forcible lewd or lascivious acts on a minor 14 or younger, sodomy by force. In that case. In that case, the prosecutor must file the lawsuit severe and an adult court.

Alternatively, a minor will be charged in an adult court if they are 16 or older and have committed any of the offenses listed under PC 707 (b). The law has a provision for prosecutors to file the case directly, but many juvenile prosecutors choose to proceed through a transfer hearing.

After the fitness hearing, the judge must make a ruling based on the amenability of each of the above-listed criteria. Failure to express these findings on compliance is a reversible error.

Remember, a report from the probation department is required to make this ruling. If the information is not ready within thirteen days of the detention order, they should release your child. Also, your child can waive the fitness hearing if they are 18 years, but if they are younger than 18, a juvenile attorney will discourage the minor from waiving a transfer hearing.

If the decision by the judge is for the minor to stay in the juvenile court system, they will set a date for a jurisdiction hearing. Should the court decide the youth should be transferred to an adult court, they will cancel the petition against the minor in the juvenile court, and the DA will file formal charges with an adult court. After this, your child must deal with all the adult court procedures and penalties.

The Fitness Proceedings

Sometimes, the judge can have your child transferred from a juvenile court to an adult criminal court system before admitting to committing the offense. The filing happens before the minor admits to the crime because by doing so, the case moves to the following stages, which include adjudication hearing, meaning the case will be heard and determined in the juvenile court.

The penalties the child will face if convicted under the criminal court system are severe, requiring a juvenile defense attorney to offer guidance.

Remember, in a fitness hearing; the judge assumes that the child is guilty. Additionally, the court doesn’t need your child’s attorney to prove that they committed the crime. Instead, the attorney should give the court reasons not to transfer the minor to an adult court. The mechanisms the judge will use to decide whether to move the minor include:

Judicial waiver — Otherwise called a discretionary waiver, a judicial waiver is a mechanism that judges use to waive the jurisdiction over a particular juvenile petition and have it tried in an adult court.

Legislative exclusion — Also called an automatic transfer, the legislative exclusion is a rule that requires juveniles accused of severe offenses tried as adults. The law doesn’t exclude any youth, including those below 14 care eligible for the transfer.

Prosecutor discretion — This mechanism allows for direct filing where the prosecutor has the choice to file charges directly in the adult court without a transfer hearing. However, the tool is rarely used because juvenile prosecutors often prefer to go through a transfer hearing.

Fitness of Transfer Hearing Stages

Before the case proceeds to the criminal court, a transfer hearing goes through several phases or stages. These are:

Probation Department’s Report

After a transfer hearing has been filed, the probation department must prepare a report within 13 days and present it during the proceeding. The report usually focuses on the youth’s behavior and delinquency record to help the judge decide if the kid is fit to be adjudicated in a juvenile court. The information contained in this report includes:

  • The social life of the child and behavioral patterns

  • Any formal accusations against the youth

  • Delinquent history of the kid

  • School attendance by the kid and the kind of performance produced

  • The kid’s interests and plans

  • Individuals in the community willing to help the child grow and improve

The judge relies heavily on this document to rule on the hearing. If the report is not produced before the fitness proceeding, your child will be set free.

Interview By a Probation Officer

As mentioned above, the probation officer’s report plays a critical role in these proceedings, which is why your child needs to be prepared for the interview with the probation department and be ready to answer all the questions asked in the discussion. If you have hired an attorney to represent the minor, it will be an added advantage because the minor will receive legal guidance on answering the questions and what not to say. The child will also be taught how to answer questions, equipping them with knowledge and skills to perform well in the probation department’s interview.

If you don’t have legal counsel, the probation officer will communicate the scope of the question to expect in the interview. For your kid to perform well at this stage, they need:

  • Legal counsel

  • To be taught how to respond to complex queries

  • Must practice responding to g questions

  • In the event of a language barrier, request to have an interpreter present

  • Should acquire guidance on what to say at the interview

  • Must state their plans, interests, talents, and strengths

Case Preparation Phase

You will need to prepare school reports, medical records, disability records, qualifications for special education, the kid’s employment report, family records, and certificates for various achievements. These records will help prove all the information required about your child. If someone in the community is willing to offer your child support in the criminal court process, you should provide the information to the child’s attorney for adequate preparations.

Participatory Defense

The participatory defense helps challenge the transfer motion for the youth to be adjudicated in a juvenile court instead of the adult one. Remember, at this stage, your family and the community are allowed to pick the way of challenging the petition. The judge assumes that you are guilty and that a transfer hearing should happen, meaning it’s up to your child’s attorney to prove why the kid is fit to be adjudicated in the juvenile court.

The Fitness Hearing Motion

At the hearing, the court will consider the report from the probation department and the evidence presented by the child’s defense against a transfer to the adult court to decide what is in the child’s best interest. Your attorney’s negotiation skills and experience in defending against fitness hearings will professionally challenge the fitness motion.

Before the hearing, ensure your child understands the following:

  • Knows the court layout

  • Be ready to answer questions through the guidance of an attorney

  • Prep legal defenses before adjudication

  • Arrive early for the hearing

  • Have a juvenile defense attorney in your corner

  • Learn to keep calm throughout the trial

After this hearing, a decision is made regarding where they should try the child. If the court decides to try the child as an adult, the case will begin immediately in the criminal court. However, if the outcome is unfavorable, you have the option to appeal the court’s decision.

Offenses Where Minors are Tried in Adult Courts

As stated earlier, the prosecutor has the discretion for direct filing for minors in serious crimes, but the most commonly used method is a transfer hearing under WIC 707. Under this code, particular felony offenses are deemed severe and can be considered for trial in an adult court. The crimes include:

  • Homicide or murder

  • Arson of an inhabited building or causing substantial bodily harm as provided under PC 245 subdivision (a) or (b).

  • Robbery

  • Robbery involving the application of physical force or violence

  • Rape that occurs through the use of violence, threats of significant bodily damage, or force

  • Sodomy involving the use of violence, menace, coercion, or threats to inflict substantial injuries

  • Kidnapping causing physical harm

  • Kidnapping for ransom

  • Kidnapping to promote robbery

  • Attempted homicide

  • Assault involving the use of force likely to result in significant bodily injuries

  • The lascivious act provided under PC 288 (b)

  • Any offense provided for under PC 289 subdivision (a)

  • Any crime outlined under PC 1203.09

  • Any offense outlined under PC 12022.5 and PC 12022.53

  • Firearm discharge in an inhabited building

  • Assault by use of firearm or destructive device

  • Sexual penetration using force

  • A felony offense where a minor used a firearm in person as provided for by PC 12020

  • Kidnapping for purposes of sexual assault

  • Carjacking while armed with a deadly or dangerous weapon as outlined under PC 215

  • Any offense described under PC 12034, subdivision (c)

  • Any violation defined under PC 12308

  • Voluntary manslaughter as per PC 192 subdivision (a)

  • Escape, through the use of violence or force from a juvenile hall, ranch, home, or camp, especially if your actions violated PC 871 subdivision (b) where an employee of any of these facilities sustained significant bodily injury.

  • Dissuading a witness under PC 136.1

  • They produce, compound, or sell at least one-half ounce of salt or solution of a controlled substance as stated under the HSC 11055 (e).

  • Oral copulation by force, menace, coercion, and threat of substantial physical injury

Appealing the Juvenile Court’s Decision

You should act fast and file a writ petition if the judge’s ruling is not in your favor. The child’s attorney will have up to 20 days after the child’s first arraignment for the alleged offense that led to the transfer to file the petition.

Note that minors’ offenses involve direct filing where a prosecutor files the charges directly in the adult criminal court. Therefore, if the minor is charged with a crime involving the use of a firearm, you should reach out to an attorney right away because they might file charges directly or request a transfer hearing. For a fitness hearing, the attorney will prepare all the necessary evidence to demonstrate the child belongs to the juvenile system. Ensure your attorney understands the juvenile justice system and has the experience to handle the case facing your child.

If the appeal is successful, your kid will avoid the harsh adult criminal court penalties and be subject to the juvenile rehabilitation program, whose consequences are less severe.

The child might lose an appeal if the underlying crime is severe and has a delinquency history. It means that the minor will still face the adult court criminal process and, upon conviction to face criminal penalties like the adults. The penalties under the criminal court process might be harsh, but they have particular benefits.

Every defendant whose case is being heard in a criminal court has a right to a fair trial. Juveniles transferred to the adult court also enjoy this right because their case is presented before a judge and jury. Once all parties have presented their evidence and arguments, the jury gives a verdict. The most critical aspect of this case is to mount strong defenses to counter the evidence presented by the prosecution. If your child’s lawyer builds a solid defense, the jury will rule in favor of your child, and they won’t end up in jail.

Similarly, a jury court may sympathize with a minor and be lenient when it comes to sentencing. Juveniles are considered more than the evidence presented, meaning even if most of the evidence shows your child is guilty, the court may rule in the child’s favor by imposing less severe consequences.

Finally, jails might be overcrowded, forcing the court to impose a lighter sentence than the one provided in the law. If they are not ready to send the kid to prison, they will find an alternative sentence that is more friendly. With this in mind, even if your kid losses in the transfer hearing, there is still hope of avoiding harsh penalties by finding proper legal representation.

Also, even after conviction, the sentence options are not as many as those in the juvenile court. And as much as the penalties in adult courts are harsh, minors are ineligible for a death sentence or life sentence without parole. The maximum jail sentence a minor can receive when convicted in an adult court is multiple years of incarceration.

Find a Orange County Criminal Defense Lawyer

The 707 transfer hearing is a critical legal process that requires you to hire an attorney on behalf of your child. The attorney will educate the minor on what to say to prevent the case from being transferred to an adult court. Further, they will conduct a thorough investigation and go through the available records of the child to prove to the juvenile court why the child is fit to be adjudicated in the juvenile court and how they will benefit from the system.

At the Orange County Criminal Lawyer, we have attorneys who understand the juvenile court system and are willing to help your child avoid a criminal trial in an adult court. Contact us today at 714-262-4833 for a free consultation.