Filed 9/30/26 In re Bryan A. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re BRYAN A., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
BRYAN A., A172440
Defendant and Appellant.
(Contra Costa County
Super. Ct. No. J17-00334)
Bryan A., now 27 years old, appeals from an order transferring his case
from juvenile court to adult criminal court pursuant to Welfare and
Institutions Code1 section 707. He argues his counsel at the transfer hearing
rendered ineffective assistance by (1) retaining a conflicted expert witness,
1 Undesignated statutory references are to the Welfare and Institutions
Code.
1
and (2) failing to object to testimony regarding the opinion of a non-testifying
expert witness. We affirm.2
I. BACKGROUND
A. Underlying Offenses3
In 2017, Elliott Johnson, 22 years old, drove a Dodge Charger on I-80 in
Richmond, with L.H. in the front passenger seat and Bryan in the back seat.
Bryan and L.H. were both 17 years old. An off-duty officer saw the Charger
following a Honda Odyssey. The Charger moved to the next lane and pulled
alongside the Odyssey, where Bryan leaned waist-deep out of the rear
window and fired numerous shots at the Odyssey. The gunshots hit and
killed Demarcus Doss, the Odyssey’s driver, and injured Joanna Oller, the
passenger. Doss tried to shield Oller from the gunshots. Police officers
quickly located the Charger and arrested Bryan, Johnson, and L.H. after they
exited the vehicle in Johnson’s driveway. Gunshot residue samples were
taken from the three suspects within 20 minutes of the shooting, and only
Bryan’s sample was positive. Witnesses had described the shooter as
wearing a black hooded sweatshirt. While Bryan initially wore a dark-
colored hooded sweatshirt when police officers located him, he removed it
before being photographed. Bryan and L.H. were booked into juvenile hall
and Johnson was booked into the county jail. During the investigation, Oller
relayed that L.H. used to date her friend. Oller believed the suspects
2 In a related petition for writ of habeas corpus (case No. A176826),
Bryan argues his counsel at the transfer hearing provided ineffective
assistance. We deny the petition today by separate order.
3 As did the parties, we take the facts of the underlying offenses from
the probation report.
2
recognized her vehicle because she would loan it to her friend, and she
believed they meant to kill the friend.
The People filed a juvenile wardship petition pursuant to section 602,
subdivision (a), charging Bryan with the murder of Doss (Pen. Code, § 187,
subd. (a); count one), attempted murder of Oller (id., §§ 187, subd. (a), 664,
subd. (a); count two), shooting at an occupied motor vehicle (id., § 246; count
three), and possession of a firearm by a minor (id., § 29610; count four). The
petition alleged various enhancements (id., §§ 246, 12022.5, subd. (a)(1),
12022.53, subd. (a), 12022.7, subd. (a), 12034, subds. (c), (d)) as to counts one,
two, and three. The People immediately moved to transfer Bryan’s case to
adult criminal court pursuant to section 707. In July 2017, following a
contested transfer hearing, the juvenile court granted the motion to transfer.
Following the transfer, the People filed a criminal complaint against Bryan in
adult court.
In June 2017, on his eighteenth birthday and while the transfer motion
was pending, Bryan was transferred from juvenile hall to county jail. He
remained in jail through the transfer proceedings leading to this appeal.
B. Bryan’s Conduct in Custody
1. Assault and Death of Levele Williams
In September 2020, Bryan and Johnson allegedly assaulted fellow
inmate Levele Williams. After hearing a commotion, deputies found
Williams locked in a cell which was not his. He was breathing heavily, had a
broken tooth, and was bleeding from his mouth. He claimed nothing
happened and denied medical treatment. He was moved to a different
module for his protection. Williams later complained of jaw pain and was
transported to the hospital, where it was determined he had a fractured jaw
and needed surgery. After surgery, Williams had a medical emergency and
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died. Investigation revealed Williams was alleged to have shot Bryan’s uncle.
In a recorded jail phone call between Bryan and his mother on the date of the
assault, Bryan told his mother that when Williams arrived on his module he
made it seem like he was not mad at him but, in fact, he and Johnson
planned to assault Williams. Bryan told her that as a result, he probably
would not get out of jail. In a recorded phone call after the assault, Bryan
described to his mother how they had someone lure Williams to them and
they beat him up. Bryan and Johnson defeated the locking mechanism on
their cell door. He told his mother Williams was scared, ran away, and
locked himself in another inmate’s cell.
Bryan subsequently told investigators he lied in his calls with his
mother because he wanted to seem tough. In June 2022, Bryan and Johnson
were charged by felony information with the murder of Williams and
conspiracy to commit assault.
2. Other Assaults
Bryan was involved in multiple other assaults between 2018 and 2022
while in jail. In April 2018, Bryan and several other inmates assaulted a
fellow inmate. The inmate was struck multiple times and Bryan was found
with his arm wrapped around the victim’s neck and appeared to be strangling
him. When they were discovered, several inmates ran away but Bryan
ignored verbal commands and had to be physically removed. The victim was
bleeding heavily from a deep head laceration and required urgent medical
attention.
In May 2019, a shank was found under the top bunk in the cell Bryan
shared with Johnson. Both men denied knowledge of where the weapon came
from, but Bryan admitted he slept on the top bunk. In July 2019, a sheriff
deputy responded to a call and saw Bryan, Johnson, and another inmate
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walking away quickly from a cell. They located an inmate inside the cell
lying facedown with lacerations on his head, face, and legs.
In July 2021, Bryan and Johnson, along with other inmates, were seen
on video surveillance in a fight. Johnson pushed an inmate to the ground
and Bryan struck the inmate’s head. In September 2021, five inmates,
including Bryan and Johnson, were involved in mutual combat. In July 2022,
Bryan and Johnson ran towards an inmate and punched him multiple times
in the face and body.
Bryan did not have further incident reports between July 2022 and the
probation department’s 2024 report prepared for the transfer hearing. When
the probation department interviewed him, Bryan explained that when he
arrived in jail he was 18 years old and small for his age at 5’6” and felt like he
had to defend himself. He stated he was lost and had to learn to survive in
jail.
C. Current Transfer Proceedings
In May 2023, Bryan filed a motion for a new transfer hearing based on
recent changes in the law. At the time, he was still awaiting trial in adult
criminal court. Shortly thereafter, the People filed a supplemental juvenile
wardship petition pursuant to section 602, subdivision (a). It mirrored the
first three counts in the 2017 petition—murder, attempted murder, and
shooting at an occupied vehicle—and dropped count four. The supplemental
petition alleged an enhancement as to each count for the use of a firearm
causing great bodily injury and death (Pen. Code, § 12022.53, subd. (d)). The
People again moved to transfer Bryan’s case to adult criminal court pursuant
to section 707, subdivision (a)(1).
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1. Transfer Hearing
The juvenile court heard the contested transfer hearing over four days
in November 2024. Bryan was 25 years old.
a. Dr. Carmichael
Dr. Blake Carmichael, Ph.D., a clinical psychologist, testified for the
People. Dr. Carmichael had prepared a report, which the juvenile court
admitted into evidence. Bryan’s counsel did not object to its admission. Dr.
Carmichael testified he was asked to provide an opinion about how the five
section 707 criteria related to Bryan’s history and alleged conduct. He
interviewed Bryan and reviewed various case documents. He testified that
the first, third, and fourth criteria might weigh in favor of juvenile court
jurisdiction. As to the second and fifth criteria, Dr. Carmichael testified
juvenile court jurisdiction was not appropriate.
Regarding the first criterion—the degree of criminal sophistication
exhibited by Bryan (§ 707, subd. (a)(3)(A)(i))—Dr. Carmichael testified that
while the offense had degrees of intention and planning, and while Bryan
understood its wrongfulness, it did not appear that Bryan organized the
crime. There may have been some gain, but it appeared to be for another
person, as the materials Dr. Carmichael reviewed demonstrated that “at least
two of the individuals in the car had an issue with who they thought was in
the [Odyssey] due to some prior criminal arrangements with regards to sex
work” and there had been “a separation for some reason.” Dr. Carmichael
acknowledged that it was fair to say that there were arguments against
juvenile jurisdiction regarding planning and potential gain in committing the
offense. He based his analysis off the information provided in the
documentation he reviewed, but he acknowledged that it was “uncertain as to
who was directing” the offense.
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In his report, Dr. Carmichael stated that killing Doss did not appear to
have been a primary motive and, also, it did “not appear that the intention of
killing anyone came from” Bryan. On cross-examination, Dr. Carmichael
explained that he reached this conclusion from witness accounts and the
description of the events. He stated, “it sounded like Mr. Johnson and [L.H.]
had the personal connection to the identified person in the Odyssey as
opposed to [Bryan] in terms of the prior criminal activity that they had been
involved in. And so again, it was extrapolating from different witnesses and
accounts.”
Regarding the second criterion—whether Bryan could be rehabilitated
prior to the expiration of the juvenile court’s jurisdiction (§ 707,
subd. (a)(3)(B)(i))—Dr. Carmichael reviewed Bryan’s family environment,
family criminal history, peer associations, and mental health history. Bryan
had no significant mental health diagnosis and had a learning disability. He
also was depressed after his uncle and friend were killed, and he gravitated
towards the delinquent peer set after losing his friend.
In his report, Dr. Carmichael referred to a report prepared in December
2017 by Shoko Kokubun, Ph.D., after Bryan had been transferred to adult
court and defense counsel declared doubt as to his competence to stand trial.
Dr. Carmichael stated that the competency report “suggested that [Bryan]
likely feigned mental illness or lack of knowledge for the court process.” At
the transfer hearing, Dr. Carmichael confirmed he reviewed, among various
documents, Dr. Kokubun’s 2017 report. Bryan’s counsel did not object. When
the prosecutor asked him about reviewing Dr. Kokubun’s report, Dr.
Carmichael testified that the “thing that stuck out most was that there may
have been an intention to try and inflate concerns, or appear to be . . .
incompetent” in “terms of not being able to understand things and kind of
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being detached from reality. [¶] Whether that was on purpose, feigned or
what have you, [Dr. Kokubun] concluded that it did not appear that that was
a real experience by” Bryan. When the prosecutor asked if it was correct that
Dr. Kokubun found “there was malingering,” Dr. Carmichael replied, “Yes,
the fancy term for pretending that you [have] a problem.” Dr. Carmichael
explained, though, that Dr. Kokubun’s finding that Bryan was malingering
did not affect his analysis. He explained that “people have different
motivations to try to appear certain ways. At that time, under that
circumstance, [Dr. Kokubun] determined that there was an attempt to
portray one’s self illegitimately. So certainly you want to consider that in
different contexts, but I try to do my best independent analysis of what was
going on at the time of my assessment.” Defense counsel did not object to this
questioning or testimony.
Overall, Dr. Carmichael concluded that the second criterion weighed
against juvenile court jurisdiction. He considered rehabilitation efforts and
recidivism rates, explaining that they demonstrated good functioning for the
first year after release. But there are higher rates of recidivism at three and
five years after release because the treatment has not sustained and the
oversight window is short. If the system cannot provide support systems and
oversight, it is less effective. Dr. Carmichael also testified that people who
are released before age 30 have higher recidivism rates.
Dr. Carmichael testified that the fifth criterion—the circumstances and
gravity of the offense (§ 707, subd. (a)(3)(E)(i))—weighed against juvenile
jurisdiction as someone dying is the ultimate gravity.
b. Dr. Minagawa
Dr. Rahn Minagawa, Ph.D., a clinical and forensic psychologist,
testified for the defense. Bryan’s counsel had referred him for a
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comprehensive psychological evaluation and social-developmental
assessment to assess his level of cognitive and emotional functioning.
Counsel also requested a full transfer evaluation. Dr. Minagawa met with
Bryan twice and reviewed various case documents. He diagnosed Bryan with
complex trauma, severe cannabis use disorder, and borderline intellectual
functioning. Individuals who have borderline intellectual functioning are
more vulnerable to manipulation by smarter or more sophisticated people.
Dr. Minagawa opined that Bryan could be rehabilitated in the juvenile
court system. He concluded that all five section 707 criteria favored retention
of the juvenile court’s jurisdiction.
Regarding the first criterion, Dr. Minagawa considered Bryan’s age at
the time of the offense, adolescent brain development, and his borderline
intellectual functioning. He also considered that there were two other people
in the car, including one who was about four years older than Bryan.
Research shows that the presence of peers greatly influences teenagers. Dr.
Minagawa had reviewed the probation report which, among other things,
stated that based on the investigation, the two other people in the car seemed
to have a greater stake in committing the offense. He agreed that the crime
showed planning and sophistication but stated there was no evidence that
Bryan was the person who initiated or planned the offense. He believed “that
the influence of the two other individuals in the car played a great role in
[Bryan’s] actions and behaviors.”
During cross-examination, Dr. Minagawa discussed Johnson and L.H.
and their influence over Bryan. He assigned a certain amount of
responsibility to Johnson given his age and criminal history. Additionally,
based on the probation report, he testified that L.H. “had a reason to want to
commit this crime.” Those were significant factors. Dr. Minagawa confirmed
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that he had testified at L.H.’s transfer hearing in 2018 or 2019. He agreed
that codefendants often have conflicts of interest, which is especially true
when individuals try to minimize their involvement in a crime. When Dr.
Minagawa wrote his report on L.H., he determined that L.H. was a passenger
in the car and that was all that was known about his involvement. He
acknowledged this was different from the way he characterized L.H.’s
involvement while testifying at Bryan’s hearing. At L.H.’s hearing, he opined
that there was nothing to prove that L.H. had involvement. He had also
emphasized that L.H. was not the shooter, and he agreed it was significant
whether someone pulls the trigger.
Dr. Minagawa explained that he did not see any reason for Bryan to be
involved other than the presence of Johnson and L.H. Johnson, an adult, was
driving and could have refrained from pursuing the other vehicle. He was
not concluding that L.H. was motivation which caused pressure on the
shooter. He said, though, that it was the presence of the other two people
which would influence Bryan’s behaviors. Dr. Minagawa did state, based on
the probation report, that L.H. had motivation for the offense. He agreed,
though, that when he was previously retained by L.H., he did not mention
that L.H. had motivation for the shooting and suggested that this motivation
attributed to L.H. appeared to be unfounded.
As to the second criterion, Dr. Minagawa concluded Bryan could be
rehabilitated before the juvenile court’s jurisdiction expired. He considered
that the trouble Bryan got into while in jail was with Johnson, who was older
and would have influence over him. Also, Bryan had made progress over the
last couple years. He demonstrated potential to grow, mature, and respond
to services.
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c. Probation Department
In its report, the probation department recommended that Bryan be
transferred to adult criminal court. Regarding the first criterion, the
probation department concluded that the pre-planning, execution of the
crime, and planned escape showed a high degree of criminal sophistication.
The report acknowledged that it was likely that influence played a role in
Bryan’s actions. According to the investigation, L.H. “had a motive to commit
the offense and allegedly targeted the victim’s vehicle because his ex-
girlfriend used to borrow the vehicle from” Oller. Bryan grew up with L.H.,
and L.H. “had the motivation to commit the offense.” At the hearing, the
probation officer confirmed that the police report and some of the evidence
demonstrated that L.H. had motive to victimize who he may have thought
was in the car. She disagreed with any suggestion, though, that Bryan acted
out of fear of Johnson. She explained that Bryan leaned waist deep out of the
car and shot the gun six to nine times. If he was feeling pressured, she would
hope he would have come up with a different option, “but in the way the
crime was done, it seem[ed] like an execution.”
The probation officer testified that the secure pathway was in-custody
commitment in juvenile hall for the more serious juvenile offenders, where
they could be housed up to their twenty-fifth birthday and were provided
services. To her knowledge, there was no one older than that in the secure
pathway. As to the second criterion, the probation officer testified that
because Bryan was 25 years old, the probation department would have two
years to rehabilitate him. She opined that two years was insufficient to do so.
Regarding the custodial component for a 25-year-old, she explained that the
county’s secure program was not designed for people older than 25. If
someone was over 25 years old, they would be the oldest person on the unit.
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This would cause issues with housing and staffing. The county’s
programming was still evolving as it was recently initiated after the
Department of Juvenile Justice closed. But evidence-based practices did not
exist for adults that age. The county had evidence-based programs for people
in their late teens up to 25 years old. But those programs were designed to
treat that age group stopping at 25. She identified one program called
Thinking For A Change which could provide services past age 25, but it was
not an in-custody program. That was the only program the probation officer
was aware of shown to work on adults that age.
2. Juvenile Court’s Decision
In February 2025, after receiving final briefs from the parties, the
juvenile court found Bryan was not amenable to rehabilitation while under
the juvenile court’s jurisdiction, and it transferred the matter to adult
criminal court. Because it is relevant to the merits of the ineffective
assistance of counsel claim raised on appeal, we summarize and quote the
court’s oral decision in detail.4 The court addressed the five criteria
enumerated in section 707, subdivision (a)(3)(A) through (E), as follows:
As to the first criterion—the degree of criminal sophistication exhibited
by Bryan—the murder and attempted murder occurred when Bryan was
three months away from turning 18, on a busy freeway in the middle of the
afternoon. It was a targeted attack on the victims’ vehicle—Bryan and his co-
parts believed that the victims were associated with L.H.’s ex-girlfriend
because they were in the ex-girlfriend’s car. While following the victims’ car,
4 “If the [juvenile] 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.”
(§ 707, subd. (a)(3).)
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Bryan’s car moved to the next lane, pulled up beside it, and Bryan hung out
the rear window and shot multiple rounds into the victims’ car. Doss was
shot and killed and Oller was shot in the hand. The car fled and drove to
Johnson’s house. Bryan removed his black hooded sweatshirt to try to
prevent identification and had gunshot residue on his hands.
Bryan had previously lost his best friend and his uncle to gun violence
and in the probation report he admitted it “messes you up mentally.” Bryan,
therefore, had experience with how losing a loved one to gun violence can
affect someone. Bryan grew up close with his mother and stepfather. His
father had mental health issues and had been in and out of state hospitals,
but there was no evidence that Bryan had been diagnosed with a mental
health disorder prior to this offense. There was “evidence that when the
minor was 18 and in custody for this offense, he attempted to feign a mental
illness or inability to understand the court proceedings. A doubt was
declared, but Dr. Kokubun . . . in 2017 concluded that the minor was likely
feigning this behavior, that he was trying [to] deceive the [c]ourt in this
regard[,] and that deception shows a level of sophistication by the minor at
age 18.”
“The defense expert in this case, Dr. M[i]nagawa[,] expressed
repeatedly that it’s his opinion that the instant offense was committed as a
result of peer pressure by the co-parts, [L.H.] and Elliott Johnson, on the
minor. [¶] I’ll also note that there is evidence that [in] January 2024, the
minor told probation that he considers himself more of a follower, but that . . .
as of January 2024, he makes his own choices. [¶] However, while the [c]ourt
found Dr. M[i]nagawa . . . to be very experienced in his field, the [c]ourt did
not find Dr. M[i]nagawa persuasive when it came to his testimony about the
minor being peer-pressured into committing this murder. The reason the
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[c]ourt did not find Dr. M[i]nagawa’s testimony persuasive is because there
was no evidence presented at the hearing that on the day of the murder, that
[L.H.] and Elliott Johnson pressured the minor to shoot and kill Mr. Doss.
Mr. Johnson testified. During his testimony, he never testified that he or
anyone else pressured the minor to shoot Mr. Doss.”
Regarding Johnson’s testimony, the juvenile court found him to be not
credible and his testimony contradicted by the evidence. For example,
Johnson testified he never saw Bryan with a gun before the day of the
murder, but photos showed Johnson and Bryan together with Bryan
possessing a gun. Johnson claimed not to remember if Bryan had a gun the
day of the murder or if shots were fired from his car, yet he remembered
driving that day with L.H. in the front seat and Bryan in the back seat. He
claimed not to remember details of the shooting, yet he pled no contest for his
involvement and was serving a significant prison sentence.
The juvenile court then addressed Bryan’s adult charge for the murder
of Levele Williams while in custody. It explained, “Mr. Johnson also claimed
that the minor wasn’t involved with that incident and that the minor did not
hit Levele Williams or disguise himself prior to the attack. However, that is
completely contradicted by the minor’s own words in a jail call to his mom
soon after the attack.” In that jail call, Bryan repeatedly told his mother that
“ ‘we beat’ ” Williams. Bryan also stated, “ ‘He ain’t even know that we were
the ones that got on him because I put my dreads in a ponytail, put on a do-
rag on my head and put my little face mask on so I looked different. . . . [W]e
have somebody . . . tell him to go to the little room, like they want to talk to
him. . . . We pop our door, walk over here, this N word got his back towards
us. We start getting on him. Boom, boom. . . . The N word started
screaming. I’m like, this N word is the N word, a nerd. . . . [He] started
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screaming and the N word [started] running around and went inside
somebody’s room and closed the door. [In my opinion] this N word is scared,
and by that time he already bleeding.’ ” Bryan continued, “ ‘[W]e beat that N
word so bad.’ ” The court explained that throughout the call, Bryan talked
about how he and Johnson beat Williams together, yet Johnson testified that
Bryan did not hit Williams and did not disguise himself. The court found
Johnson was repeatedly untruthful and, therefore, was not a credible
witness.
While Johnson testified that Bryan tended to follow him, “the jail call
by the minor shows the opposite to be true. The jail call shows that the
minor set up the attack on Mr. Williams for revenge because Mr. Williams
had previously shot the minor’s uncle. The jail call also shows that the minor
is the manipulator and planner of the sophisticated attack. He states how he
pretended to be nice to Mr. Williams so that Mr. Williams wouldn’t be
suspicious prior to their attack [on] him. [¶] The jail call shows that the
minor waited for Mr. Williams to sell some crystal methamphetamine, so he
could steal the remaining crystal methamphetamine as well as the
proceeds, . . . prior to attacking him. It also shows that Mr. Johnson tried to
delay the attack on Mr. Williams, but the minor would not listen to Mr.
Johnson. Specifically, the minor state[d] quote, ‘Yeah, nerd, bro, I’m glad we
got him too. First day, first everybody, first bro, like, let’s wait until
tomorrow. Hell no. I’m not waiting until tomorrow, N word. I’m not letting
this N word spend the day on . . . this module with me.’ ” “That jail call by
the minor shows that the nature of their relationship is not Mr. Johnson
peer-pressuring the minor to do things or directing the minor to do things or
the minor always following him. Rather, it’s quite the opposite. The minor is
the one telling Mr. Johnson what to do in that call.”
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Next, the juvenile court addressed other attacks Bryan engaged in with
Johnson while in custody. “There was zero evidence that these incidents in
custody were a result of the minor being attacked or needing to defend
himself. There was evidence that all of the fights the minor engaged in while
in custody were attacks by the minor and Mr. Johnson on other inmates. The
defense argues that the fights are another example of Mr. Johnson’s bad
influence on the minor and that those fights came to an end once they were
no longer housed together. [¶] However, the minor appeared to brag about
those fights. Specifically, the minor brags to his mom in the jail call about all
of the inmates he and Mr. Johnson beat up together.”
The juvenile court concluded that even though Johnson was older than
Bryan and had a criminal history, “it was the minor who was the one with
the guns in the photos of them together prior to the murder of Mr. Doss. It
was the minor who shot multiple times into a moving car, killing Mr. Doss
and injuring the female passenger. It was the minor and Mr. Johnson who
worked together to attack Mr. Williams, an attack that led to his death. It
was the minor who planned the attack on Mr. Williams and had voted to do
so because Mr. Williams had shot the minor’s uncle, and it was the minor
who proactively engaged in fights with Mr. Johnson against other inmates.
[¶] None of the evidence showed that the minor acted because of peer
pressure by Mr. Johnson before, during or after this murder, or that his
behavior in custody was a result of needing to protect himself from being
harmed, or [a] result of peer pressure from Mr. Johnson.”
Finally, the juvenile court briefly addressed Dr. Minagawa’s testimony
about peer pressure. Dr. Minagawa “testified that not only was he called as
an expert in this case, but he was also called as an expert by [L.H.] in [L.H.’s]
transfer hearing. At [Bryan’s] hearing, he testified that he believes the minor
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was peer-pressured by Mr. Johnson and [L.H.], yet at [L.H.’s] transfer
hearing, he testified that [L.H.] was simply a passenger in the car and should
not be transferred to adult court. It seems that Dr. M[i]nagawa changed his
testimony depending on whose hearing he was testifying at and who was
paying for his testimony. That change in testimony made by Dr. M[i]nagawa
resulted in this [c]ourt finding that he was not credible or persuasive when it
came to his opinion about peer pressure the minor may have felt in this case.”
The juvenile court found the People met their burden as to the first
criterion, which weighed in favor of transfer to adult court. The court based
its finding “on the premeditated sophisticated murder carried out as a group
by the minor, [L.H.,] and Mr. Johnson, the attempt to evade responsibility
after the murder, and the lack of credible evidence that the minor acted as a
result of peer pressure.” The court also considered that Bryan had a loving
relationship with his mother and stepfather and was not diagnosed with any
mental health or intellectual issues except for a learning disability.
As to the second criterion—whether Bryan could be rehabilitated prior
to the expiration of the juvenile court’s jurisdiction—the juvenile court
explained that Bryan was 25 years old and would be 26 in four months. He
was only three months shy of his eighteenth birthday at the time of the
murder. Normally, the juvenile court loses jurisdiction when a minor turns
25, but the juvenile court may retain jurisdiction over a person who is 25
years old or older for a period not to exceed two years from the date of
disposition. Therefore, the court explained it would be restricted to two years
or less to attempt to rehabilitate Bryan. The probation officer testified that if
Bryan remained in juvenile court, the secure track programming—for the
most serious juvenile offenders—was not designed for minors age 25 or older.
“She also testified that the programs that they use in Contra Costa County
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that are evidence based only apply to minors up to age 25, except for one
program Thinking For a Change. [¶] She also said there would be problems
housing the minor in a custodial setting because of his age and it would cause
issues with housing and staffing and that Contra Costa County does not have
a program yet that could effectively provide treatment for someone his age.”
“The probation department said it does not have any evidence-based
programming available to address this minor’s significant needs in the two-
year period left of juvenile jurisdiction.”
The juvenile court also addressed Dr. Carmichael’s testimony on the
second criterion, including his testimony about Bryan’s family, upbringing,
and family mental health and criminal history; Bryan’s academic functioning
and mental health; his history with a friend and uncle dying; and his
substance use and how it is a risk factor for treatment and can play into
recidivism. Dr. Carmichael admitted that there was little to no information
regarding the success of the county’s rehabilitative programming. He opined
that he did not believe that the second criterion weighed in favor of retention
in juvenile court because there are higher rates of recidivism three to five
years post release. With a maximum jurisdiction of two years, the juvenile
court system would not be able to provide support and oversight for three to
five years post release. He also noted that people released before age 30 have
a higher rate of recidivism.
The juvenile court addressed Dr. Minagawa’s testimony. The court
stated, “Dr. M[i]nagawa testified that the two-year time period . . . would be
enough time to rehabilitate the minor. . . . [T]his [c]ourt found it interesting
that Dr. M[i]nagawa said two years was sufficient time to rehabilitate the
minor, but did not express the specifics of what that rehabilitation or
programming plan would need to be in order to rehabilitate the minor within
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two years. [¶] [Dr. Minagawa] also testified that he believed at age 25, the
minor still had the ability to grow and mature, and that his brief time in
juvenile hall in 2017 shows this. However, the [c]ourt did not find that
persuasive, especially in light of the lack of programming available to
someone” Bryan’s age.
Finally, the juvenile court “considered that the minor has been involved
in the killing of two human beings by the age of 21. That is significant. That
indicates to this [c]ourt significant rehabilitative needs by the minor to
address why by the age of 21, he’s been involved in the killing of two human
beings. It also indicates significant programming needed to deter the minor
from killing again in the future. [¶] It is also not lost on this [c]ourt that one
of the two murders was committed while he was in a custodial setting with
many witnesses around him, as well as under constant watch of law
enforcement. Again, this indicates significant rehabilitative needs to try and
deter him from engaging in such conduct again, especially upon release.”
The juvenile court found that it was not likely that Bryan could be
rehabilitated in the two remaining years of the court’s jurisdiction due to his
significant rehabilitative needs and the lack of programming available due to
his age. Therefore, the court found that the People met their burden as to the
second criterion, which weighed in favor of transfer to adult court.
The juvenile court found that the third criterion—Bryan’s previous
delinquent history—weighed in favor of transfer to adult court. While Bryan
had not previously been a ward under section 602, the court considered the
multiple assaults Bryan committed while in custody. This included a shank
being found in his cell and the murder of Williams with which he had been
charged in adult court. The court acknowledged Bryan’s trauma of losing his
uncle and best friend, but it concluded that did “not outweigh the significant
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and premeditated delinquent conduct” Bryan engaged in prior to the transfer
hearing.
The juvenile court found that the fourth criterion—the success of
previous attempts by the juvenile court to rehabilitate Bryan—weighed in
favor of retaining jurisdiction in juvenile court because there had not been
prior attempts.
Finally, as to the fifth criterion—the circumstances and gravity of the
offense alleged in the wardship petition to have been committed by Bryan—
the juvenile court reiterated its analysis of the murder as it had stated in
analyzing the first and third criteria. The court stated, “Every murder is
grave, but the circumstances of this one are particularly grave. Shooting into
a car that you think belongs to your friend’s ex-girlfriend and shooting the
driver in the chest twice and head once is extremely grave. Shooting multiple
rounds into another car in the middle of the day on a busy freeway is very
grave. Killing one person and injuring a second person is severely grave.
Learning that the victim died trying to shield the female passenger is
extremely grave. Learning that the victim [who] died was known for having
a huge heart and died trying to save someone else’s life is extremely grave.
Learning that the female passenger, Ms. Oller, suffers from PTSD and
suicidal thoughts because of the minor’s actions that day is extremely grave.
Learning that Mr. Doss prior to his death provided care for his elderly and
blind mother is extremely grave.”
“The minor was the shooter in this case. He took it upon himself to
hang out of the moving car and point a gun directly into a neighboring car
and shoot Mr. Doss in the chest multiple times and head. He caused the
ultimate harm to Mr. Doss and his family. He did all this despite himself
being a victim of gun violence when he lost his best friend and uncle to gun
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violence. He knew how horrible it was to lose a loved one to gun violence, yet
he engaged in the shooting of a gun at two people, resulting in the death of
one and serious mental health effects and injuries to the other. This was an
extremely grave murder and attempted murder.” Therefore, the juvenile
court found the fifth criterion weighed in favor of transfer to adult court.
The juvenile court found by clear and convincing evidence that the first,
second, third, and fifth criteria weighed in favor of transfer, and the fourth
criterion weighed against it. It determined that the criteria weighing in favor
of transfer significantly outweighed the one criterion which did not.
Accordingly, the court concluded transfer to adult criminal court was
appropriate because Bryan was “not amenable to rehabilitation while under
the jurisdiction of the juvenile court.”
II. DISCUSSION
Bryan argues he received ineffective assistance of counsel at the
transfer hearing. He contends his counsel provided deficient performance in
two respects: (1) by retaining Dr. Minagawa as an expert witness, and (2) by
failing to object to Dr. Carmichael’s testimony regarding Dr. Kokubun’s 2017
report.
A. Legal Framework and Standard of Review
When a minor age 16 years or older is alleged to have committed a
felony, including murder and attempted murder, the prosecution may move
to transfer the minor from juvenile court to criminal court. (§ 707,
subds. (a)(1), (b)(1), (12).) Upon the motion, the juvenile court must order the
probation officer to submit a report on the minor’s behavioral patterns and
social history. (§ 707, subd. (a)(1).) The parties may submit “other relevant
evidence” in connection with the transfer motion. (§ 707, subd. (a)(3).)
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Effective January 1, 2023, section 707 was amended to, among other
things, raise the prosecution’s burden of proof. (In re J.M. (2024)
103 Cal.App.5th 745, 752.) As amended, section 707 provides that 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.”
(§ 707, subd. (a)(3), as amended by Stats. 2022, ch. 330, § 1.) A juvenile court
may retain jurisdiction over a minor for the offense of murder “until that
person attains 25 years of age, or two years from the date of commitment to a
secure youth treatment facility . . ., whichever occurs later.” (§ 607, subd. (c).)
In making its transfer decision, the juvenile court “shall consider the
criteria specified in subparagraphs (A) to (E)” of section 707,
subdivision (a)(3). (§ 707, subd. (a)(3).) These five criteria are: (1) “[t]he
degree of criminal sophistication exhibited by the minor;” (2) “[w]hether the
minor can be rehabilitated prior to the expiration of the juvenile court’s
jurisdiction;” (3) “[t]he minor’s previous delinquent history;” (4) the “[s]uccess
of previous attempts by the juvenile court to rehabilitate the minor;” and (5)
“[t]he circumstances and gravity of the offense alleged in the petition to have
been committed by the minor.” (§ 707, subd. (a)(3)(A)–(E).) The statute sets
forth a nonexhaustive list of relevant factors the court must weigh with
respect to each of the five criteria. (§ 707, subd. (a)(3)(A)(ii), (B)(ii), (C)(ii),
(D)(ii), (E)(ii).) The weight to be given to each of the enumerated criteria is
within the juvenile court’s discretion. (D.C. v. Superior Court (2021)
71 Cal.App.5th 441, 445.)
The minor’s amenability to rehabilitation under the juvenile court’s
jurisdiction is the “ultimate question for the juvenile court.” (In re J.S. (2024)
105 Cal.App.5th 205, 212.) “ ‘Whether the youth committed the act alleged in
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the petition is not the issue in [a fitness hearing]; the sole question is
whether he would be amenable to treatment in the event that he is
ultimately adjudged a ward of the court.’ ” (People v. Superior Court (Jones)
(1998) 18 Cal.4th 667, 682; see also Kevin P. v. Superior Court (2020)
57 Cal.App.5th 173, 189–190.)
Here, Bryan raises ineffective assistance of counsel claims. “The due
process right to effective assistance of counsel extends to minors in juvenile
delinquency proceedings.” (In re M.V. (2014) 225 Cal.App.4th 1495, 1528.)
To establish constitutionally inadequate representation, “a defendant must
show that his or her counsel’s performance was deficient and that the
defendant suffered prejudice as a result of such deficient performance.
(Strickland v. Washington (1984) 466 U.S. 668, 687–692 [. . . 104 S.Ct. 2052].)
To demonstrate deficient performance, defendant bears the burden of
showing that counsel’s performance “ ‘ ‘ “fell below an objective standard of
reasonableness . . . under prevailing professional norms.” ’ ” ’ [Citation.] To
demonstrate prejudice, defendant bears the burden of showing a reasonable
probability that, but for counsel’s deficient performance, the outcome of the
proceeding would have been different.” (People v. Mickel (2016) 2 Cal.5th
181, 198 (Mickel).) A “ ‘reasonable probability’ ” is a probability “ ‘sufficient to
undermine confidence in the outcome.’ ” (People v. Fairbank (1997)
16 Cal.4th 1223, 1241.) “A defendant must prove prejudice that is a
‘ “demonstrable reality,” not simply speculation.’ ” (Ibid.) “Whether counsel’s
performance was deficient, and whether any deficiency prejudiced defendant,
are mixed questions of law and fact subject to our independent review.” (In re
Gay (2020) 8 Cal.5th 1059, 1073.)
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B. Analysis
Without deciding whether counsel’s performance was deficient, we
reject Bryan’s ineffective assistance claim on the ground that his counsel’s
asserted deficiencies were not prejudicial. (People v. Fairbank, supra, 16
Cal.4th at p. 1241 [“ ‘If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which we expect will often be so,
that course should be followed.’ ”].)
Bryan argues he was prejudiced by his counsel’s (1) decision to retain
Dr. Minagawa, a conflicted expert witness, and (2) failure to object to
Dr. Carmichael’s testimony regarding the opinion of a non-testifying expert,
Dr. Kokubun, regarding Bryan’s malingering.
First, defense counsel retained Dr. Minagawa, who Bryan asserts had a
conflict for having previously testified at L.H.’s transfer hearing. According
to Bryan, “the heart of Dr. Minagawa’s opinion was his finding that peer
pressure from” L.H. and Johnson influenced his actions. At L.H.’s hearing,
Dr. Minagawa opined that there was nothing to prove that L.H. had
involvement and he did not mention that L.H. had motivation for the offense.
Here, the juvenile court explained that Dr. Minagawa opined that Bryan
committed the offense as a result of peer pressure by L.H. and Johnson. The
court explained that because Dr. Minagawa had “changed his testimony
depending on whose hearing he was testifying at,” it found “he was not
credible or persuasive when it came to his opinion about peer pressure
[Bryan] may have felt.”
The juvenile court considered evidence regarding peer pressure in
analyzing the first criterion—the degree of criminal sophistication exhibited
by Bryan (§ 707, subd. (a)(3)(A)(i)). Even though the juvenile court did not
consider Dr. Minagawa’s testimony about peer pressure or influence by L.H.
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and Johnson, there is not a reasonable probability that without counsel’s
retention of Dr. Minagawa the outcome of the proceedings would have been
different because the court’s decision demonstrates that it considered
evidence regarding peer pressure or influence distinct from Dr. Minagawa’s
testimony. The court explained the various reasons why it concluded that
“[n]one of the evidence showed that [Bryan] acted because of peer pressure.”
This included evidence of Bryan holding guns before the murder; the fact that
Bryan was the shooter in the underlying offense; information gained from jail
calls regarding the planning and attack on Williams; and Bryan’s other in-
custody assaults. Bryan himself agrees that Dr. Minagawa was not needed to
demonstrate that L.H. and Johnson had the motivation to commit the crime,
acknowledging that Dr. Carmichael, the prosecution’s expert, testified that
Bryan did not have the primary motivation to commit the crime.
In finding that the prosecution met its burden of proving the first
criterion, the juvenile court explained its finding was “based on the
premeditated sophisticated murder carried out as a group by” Bryan, L.H.,
and Johnson, “the attempt to evade responsibility after the murder, and the
lack of credible evidence that [Bryan] acted as a result of peer pressure.” The
court considered the totality of the evidence and concluded there was no
evidence demonstrating that L.H. and Johnson pressured Bryan to shoot into
the victims’ vehicle or that Johnson pressured Bryan in relation to the jail
assaults. The court’s decision, therefore, demonstrates that had defense
counsel not retained Dr. Minagawa, the court still would have determined
that the first criterion weighed in favor of transfer to adult criminal court.
Additionally, Bryan argues that the conflict undermined the credibility
of Dr. Minagawa’s entire testimony, which, he asserts, “likely affected” the
juvenile court’s evaluation of his other opinions. That contention is refuted
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by the court’s decision. The court specifically stated it found Dr. Minagawa
not credible “when it came to his opinion about peer pressure the minor may
have felt.” There is no demonstration the court found Dr. Minagawa lacking
credibility about the entirety of his opinions. In fact, the court stated it found
Dr. Minagawa “to be very experienced in his field.” Bryan focuses on the
court’s conclusion as to the second criterion that two years was insufficient
time to rehabilitate Bryan. (§ 707, subd. (a)(3)(B)(i) [“[w]hether the minor
can be rehabilitated prior to the expiration of the juvenile court’s
jurisdiction”].) The court explained the evidence it relied on: the probation
officer’s testimony and Dr. Carmichael’s opinion that the second criterion did
not weigh in favor of retention of jurisdiction in juvenile court. The court
acknowledged that Dr. Minagawa opined that two years was sufficient to
rehabilitate Bryan. But it explained that he did not discuss the specifics of
what the programming plan would need to be to do so. There is no
demonstration that the court found Dr. Minagawa’s opinion to be not credible
based on his conflicting prior testimony in L.H.’s case.
Moreover, we reject Bryan’s contention regarding the entirety of
Dr. Minagawa’s testimony because it is based on a premise unsupported by
his claim of ineffective assistance of counsel. He asserts that counsel’s
deficient performance was the retention of Dr. Minagawa. In analyzing
prejudice, we must determine whether there is “a reasonable probability that,
but for counsel’s deficient performance, the outcome of the proceeding would
have been different.” (Mickel, supra, 2 Cal.5th at p. 198, italics added.) But
for counsel’s asserted deficient performance, Dr. Minagawa would not have
been retained by the defense and would not have testified. We cannot parse
out which of his opinions the juvenile court may or may not have deemed
credible when Bryan argues he should not have been retained to begin with.
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Second, Bryan did not demonstrate that he was prejudiced by defense
counsel’s failure to object to Dr. Carmichael’s testimony about Dr. Kokubun’s
report regarding Bryan’s malingering. Dr. Carmichael reviewed Dr.
Kokubun’s 2017 report prepared for Bryan’s competency hearing. In his own
report, Dr. Carmichael stated that Dr. Kokubun’s competency report
“suggested that [Bryan] likely feigned mental illness or lack of knowledge for
the court process.” At the transfer hearing, Dr. Carmichael testified that the
“thing that stuck out most was that there may have been an intention to try
and inflate concerns” or appear to be “incompetent.” He explained that Dr.
Kokubun had concluded there was malingering. In reciting its decision
regarding the first criterion, the juvenile court stated there was evidence that
when Bryan was 18 years old, Dr. Kokubun “concluded that [Bryan] was
likely feigning this behavior, that he was trying [to] deceive the [c]ourt in this
regard[,] and that deception shows a level of sophistication by [Bryan] at age
18.”
Bryan focuses on this statement, arguing it impacted the juvenile
court’s finding under the first criterion that Bryan demonstrated criminal
sophistication. But the court’s statement about Dr. Kokubun’s conclusion—
brought into evidence by Dr. Carmichael’s testimony—was just one of many
things on which the court relied in reaching its finding on the first criterion.
The court considered the circumstances of the shooting and the parties’
subsequent flee; Bryan’s attempt to prevent identification; Bryan’s adult
charge for the murder of Williams; and Bryan’s other assaults on inmates
while in jail. The court extensively summarized and quoted Bryan’s jail calls
to his mother regarding the alleged murder of Williams, and it concluded
Bryan’s statements demonstrated that he was the planner and manipulator
of the attack; not that he was pressured by Johnson to do anything.
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Therefore, the juvenile court considered evidence distinct from
Dr. Kokubun’s 2017 opinion regarding malingering in assessing Bryan’s
criminal sophistication. The record demonstrates that had defense counsel
objected to Dr. Carmichael’s testimony regarding Dr. Kokubun’s opinion, and
had the court not considered the challenged testimony, there is not a
reasonable probability that the court would have found differently.
In sum, Bryan did not show a reasonable probability that, but for
counsel’s asserted deficiencies, the outcome of the transfer proceeding would
have been different. (See Mickel, supra, 2 Cal.5th at p. 198.) Accordingly, he
has not met his burden of demonstrating prejudice and his ineffective
assistance of counsel claim fails.
III. DISPOSITION
The February 7, 2025 order transferring the case to adult criminal
court is affirmed.
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_________________________
LANGHORNE WILSON, J.
WE CONCUR:
_________________________
BANKE, Acting P. J.
_________________________
SMILEY, J.
In re Bryan A. / A172440
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