Filed 11/13/26 In re D.H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re D.H., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, E088336
Plaintiff and Respondent, (Super.Ct.No. DLRI2300165)
v. OPINION
D.H.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark E. Petersen, Judge.
Reversed and remanded.
Stephanie A. Lickel, under appointment by the Court of Appeal, for Defendant
and Appellant.
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Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Daniel B. Rodgers and Joseph C.
Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant D.H., a juvenile, was charged with murder. The People
sought to transfer him from juvenile court to criminal court, and the juvenile court
granted the motion. D.H. appeals, contending there was insufficient evidence to support
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a required finding. We agree and reverse.
I. BACKGROUND
In June 2024, the People filed a juvenile wardship petition under section 602
charging D.H. with one count of murder (Pen. Code, § 187, subd. (a)) and one count of
attempted murder (Pen. Code, §§ 187, subd. (a), 664). Each count specially alleged that
D.H., born in 2006, personally and intentionally discharged a firearm proximately
causing great bodily injury or death (Pen. Code, § 12022.53, subd. (d)).
According to the probation officer’s summary of the underlying factual
allegations, the two victims had met an individual named Jose to purchase a cell phone.
Jose walked into his house while the victims waited outside. D.H. then approached the
victims, asked them for their names, then began shooting at them with a rifle. One of the
victims died at the scene. The other suffered a gunshot wound to his leg. The surviving
victim told police that he did not have any prior issues with D.H. but that his brother (the
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Undesignated statutory references are to the Welfare and Institutions Code.
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deceased victim) had “beef” with D.H. because he was from a rival street gang. D.H.
was arrested a mile away from the scene shortly after officers arrived.
The People moved under section 707 to transfer D.H. from juvenile court to
criminal court. After several continuances, the juvenile court heard the motion in June
2025 and issued its ruling the following month. The juvenile court considered the
parties’ briefs, the probation officer’s report, a report filed by Dr. Tonneka Caddell, a
psychologist who evaluated D.H., a letter that D.H. submitted to the court, and the
testimony of an officer who stated that D.H.’s tattoos are consistent with ones associated
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with the Eastside Banning Sapos gang.
A. Probation Officer’s Report
The probation officer’s report described D.H.’s history. D.H.’s mother was
previously convicted for public intoxication, shoplifting, and buying or receiving a stolen
vehicle. His father was previously convicted for defrauding property of another,
vandalism, shoplifting, and driving under the influence. His father lives in Oregon, and
his mother is “likely homeless.”
In 2022, D.H. attempted to run across a freeway and was struck by a vehicle
traveling approximately 60 miles per hour. At the hospital, D.H. had marijuana in his
system and a blood alcohol content of 0.219 percent. He “indicated it was [a] one-time
mistake caused by a friendship with someone who was a bad influence whom he no
2
We summarize the reports, D.H.’s letter, and the juvenile court’s ruling only
briefly. After discussing the applicable law, we then describe additional portions of the
reports and ruling where relevant.
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longer associates with.” The incident led to a juvenile dependency matter against his
mother for general neglect, and D.H. was placed with an uncle. The report states that
“[o]nce in placement, [D.H.] was assessed for services” and “declined participating in
therapy, stating he did not feel he needed it.” D.H. “denie[d] ever being offered services
as a dependent, but stated that if he was, he would decline them because he is not
interested in speaking to anyone.”
Recovery from the accident and placement in foster homes “distracted [D.H.] from
returning to school,” so he dropped out in May 2023. He failed all 19 classes he had
taken at the school.
Between October and November 2023, the People filed three juvenile wardship
petitions, each alleging D.H. committed one count of receiving a stolen vehicle (Pen.
Code, § 496d, subd., (a).) The three vehicles were stolen over a period of 11 days. One
incident involved a pursuit reaching speeds of approximately 100 miles per hour while
D.H.’s girlfriend was in the front passenger seat. When arrested for one of the other
incidents, D.H. displayed signs of intoxication and had a bottle of tequila in his bag.
After one of his arrests, D.H.’s uncle refused to regain custody over D.H., so his social
worker housed him at a Department of Public Social Services (DPSS) Welcome Center,
where he repeatedly ran away. He was eventually placed with another uncle but ran
away during an incident where D.H. left his daughter, born in February 2023, unattended
on the doorstep of her mother’s home.
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Since being in detention for his current arrest, D.H. has passed all seven of his
enrolled classes and has accumulated 23 credits toward a high school diploma. D.H. “is
respectful to staff and participates in programming without issues.” D.H. stated that “he
would comply with any programs ordered should he remain in juvenile court.” However,
the probation officer did not believe D.H. was truly interested because he “demonstrated
no interest in addressing any of his issues” during dependency. The report notes one
disciplinary incident: “On August 21, 2024, the minor was involved in a multi-youth
fight where chemical agents and physical restraints were utilized.”
B. Psychologist’s Report
The psychologist’s report stated that D.H. “appeared to have a chaotic upbringing
and an unstable home environment that impacted him negatively, especially in recent
years.” It recounted D.H.’s dependency matter, adding that family reunification services
had been terminated for both parents in August 2023. It stated that D.H. appeared to run
away from his placements “likely in an attempt to reunite with his mother, as he did
report . . . that he resided with and was in contact with his mother while AWOL.”
D.H. “reported a history of distressing events . . . and significant exposure to crime
and violence in his neighborhood.” “Specifically, he reported observing or being told
that his mother had been robbed multiple times. [D.H.] expressed having anger,
persistent worry, and fear about his mother’s safety. [D.H.] described that at age 14, his
mother was robbed at gunpoint and came home with bruises and a black eye. He then
reported a second robbery that took place when [D.H.] was 16. He reported that these
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robberies, seeing men make attempts and succeed in physically assaulting his mother, and
being taken from his mother’s custody, caused him to view the world and others
negatively. . . . Once he perceives that another person is attempting to disrespect/harm
him or his mother, [D.H.] is quick to react by responding with anger and aggression.”
As to D.H.’s educational history, the psychologist’s report added that D.H.
reported being “distracted after finding out his girlfriend was pregnant and wanted to
focus on caring for her and his daughter.” While in juvenile detention, D.H. “reported
being ‘student of the month’ at least once at Indio Juvenile Hall.” When asked about his
mental health, D.H. “report[ed] a history of anxiety and acknowledged that he is currently
taking medication.” D.H. “reported being able to see a difference in his behaviors since
taking psychotropic medication.” “When asked about his symptoms of anxiety, [D.H.]
reported racing and negative thoughts, overthinking, excessive worry, heart racing, and
fears about the future and what may happen. . . . He then reported a history of paranoia
and hypervigilance that he attributed [to] his experience of community violence and his
mother’s negative experiences.” D.H. “denied a history of counseling or treatment but
acknowledged that while detained, he sees a mental health counselor twice a month. He
also sees a psychiatrist monthly for his medication management.”
C. D.H.’s Letter
D.H. submitted a letter to the court. In full, it reads: “I just want to say some
things I noticed about myself the last 9 months of being incarcerated. First and foremost,
I know I’m not the same person I was when I came into Juvenile Hall. I had a lot of time
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to myself and a lot of time to think. No one is perfect but I strive for perfection through
the Lord. Sundays at Church Pastor James has a big impact on my life and well-being. I
matured a lot mentally and physically. I pray to God daily for a second chance [to] prove
myself and be able to make it back home to my daughter. Other then that I’m trying to
fix the way people may think of me. I stay in contact with family. I don’t let the position
I’m in effect the relationship I got with them. At this moment one of my main focuses is
to get my diploma and make the best out of the time I have. I’m going to continue to
have hope and a positive mindset and do what’s best for me, stay out of negative
situations and be a positive person no matter what my circumstances. I may not be the
family of the victim, but I understand the pain I have inflicted on the family. It’s not
something I wish on anybody. Knowing I have matured and had to realize it.”
D. Juvenile Court Ruling
Finding that “the weight of the evidence fully support[ed] a transfer to a court of
criminal jurisdiction,” the juvenile court granted the transfer motion. It stated that D.H.’s
actions were “intentional and pre-planned” and that he “has shown an inability to be law
abiding,” adding that D.H. “engaged in a horrendous act and has shown no remorse for
his actions.” It stated that D.H.’s actions “reveal his desire to membership in a criminal
street gang” and that his “tattoos and involvement in the murder show his intent and
desires.” It “d[id] not believe [D.H.] can be rehabilitated” prior to the expiration of its
jurisdiction, which it stated would be in either 2029 or 2031. It added that “[D.H.] has
demonstrated no interest in addressing any of his issues as confirmed in the probation
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officer’s report.” It noted the pending juvenile wardship petitions and that “there was no
success as to the prior services offered by DPSS.”
II. DISCUSSION
A. Applicable Law
“Section 707 sets forth the procedures for transferring a minor from juvenile court
to criminal court. It provides that whenever a minor aged 16 years or older is alleged to
have committed a felony, the prosecutor may move ‘to transfer the minor from juvenile
court to a court of criminal jurisdiction.’ (§ 707, subd. (a)(1).) The prosecution bears the
burden of proving that the minor should be transferred.” (In re Miguel R. (2024) 100
Cal.App.5th 152, 164 (Miguel R.).)
“In order to find that the minor should be transferred to a court of criminal
jurisdiction, the court shall find by clear and convincing evidence that the minor is not
amenable to rehabilitation while under the jurisdiction of the juvenile court.” (§ 707,
subd. (a)(3).) “The standard of proof known as clear and convincing evidence demands a
degree of certainty greater than that involved with the preponderance standard” and
“‘requires a finding of high probability.’” (Conservatorship of O.B. (2020) 9 Cal.5th
989, 998.) “Courts have also described the [clear and convincing] standard ‘as requiring
that the evidence be “‘so clear as to leave no substantial doubt’; ‘sufficiently strong to
command the unhesitating assent of every reasonable mind.’”’” (In re S.S. (2023) 89
Cal.App.5th 1277, 1286 (S.S.), citing In re Angelia P. (1981) 28 Cal.3d 908, 919.)
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The court must consider five statutory criteria in making the finding. First is
“[t]he degree of criminal sophistication exhibited by the minor.” (§ 707, subd.
(a)(3)(A)(i).) Second is “[w]hether the minor can be rehabilitated prior to the expiration
of the juvenile court’s jurisdiction.” (§ 707, subd. (a)(3)(B)(i).) Third is “[t]he minor’s
previous delinquent history.” (§ 707, subd. (a)(3)(C)(i).) Fourth is the “[s]uccess of
previous attempts by the juvenile court to rehabilitate the minor.” (§ 707, subd.
(a)(3)(D)(i).) Fifth, the court must consider “[t]he circumstances and gravity of the
offense alleged in the petition to have been committed by the minor.” (§ 707, subd.
(a)(3)(E)(i).) The second factor (whether the minor can be rehabilitated prior to the
expiration of juvenile court jurisdiction) and the finding required for transfer (that the
minor is not amenable to rehabilitation while under juvenile court jurisdiction) sound
somewhat similar. In Miguel R., we concluded the two were distinct and the statute does
not require the juvenile court to “give greater weight to the second” factor than to any
other. (Miguel R., supra, 100 Cal.App.5th at pp. 167-168.)
Overall, “a minor’s amenability to rehabilitation is the central and ‘dispositive’
question in proceedings under section 707 [citation], and the juvenile court’s analysis of
the section 707 criteria must be ‘focused through the lens of amenability to
rehabilitation.’” (In re O.F. (2026) 119 Cal.App.5th 133, 162 (O.F.).) Because
amenability means “‘having or showing willingness to agree or to accept something that
is wanted or asked for’” and rehabilitation means “‘the process of restoring someone
(such as a criminal) to a useful and constructive place in society,’” the “ultimate question
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presented . . . is whether clear and convincing evidence supports the juvenile court’s
conclusion that [the minor], while under the court’s jurisdiction, is not willing to accept
treatment that would restore him to a constructive place in society.” (Ibid.) Given the
focus of section 707 “on a minor’s amenability to rehabilitation, expert testimony ‘will
likely be necessary,’ and the testimony of experts that the minor can be treated ‘“is
entitled to great weight in the court’s ultimate determination.”’” (O.F., at p. 164.)
“If the court orders a transfer of jurisdiction, the court shall recite the basis for its
decision in an order entered upon the minutes, which shall include the reasons supporting
the court’s finding that the minor is not amenable to rehabilitation while under the
jurisdiction of the juvenile court.” (§ 707, subd. (a)(3).) For purposes of the transfer
motion, it is assumed the minor committed the alleged offense. (People v. Superior
Court (Jones) (1998) 18 Cal.4th 667, 682; see People v. Chi Ko Wong (1976) 18 Cal.3d
698, 718 [transfer hearing “‘does not result in a determination of guilt as may a criminal
trial’”], overruled on another ground as stated in People v. Green (1980) 27 Cal.3d 1, 28.)
“The court’s explanation, like its analysis, should focus on [a] minor’s amenability to
rehabilitation.” (S.S., supra, 89 Cal.App.5th at p. 1294.)
“We review the juvenile court’s ruling on a transfer motion for abuse of discretion.
[Citation.] ‘The abuse of discretion standard is not a unified standard; the deference it
calls for varies according to the aspect of a trial court’s ruling under review. The trial
court’s findings of fact are reviewed for substantial evidence, its conclusions of law are
reviewed de novo, and its application of the law to the facts is reversible only if arbitrary
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and capricious.’” (Miguel R., supra, 100 Cal.App.5th at p. 165.) “[W]e review for
substantial evidence the juvenile court’s ultimate finding ‘that the minor is not amenable
to rehabilitation while under the jurisdiction of the juvenile court.’ [Citation.] Because
the juvenile court must make that finding by clear and convincing evidence, we
‘determine whether the record, viewed as a whole, contains substantial evidence from
which a reasonable trier of fact could have made the finding of high probability
demanded by’ the clear and convincing evidence standard.” (Ibid.)
B. Analysis
The juvenile court concluded that all five section 707 criteria weighed in favor of
transfer. We first explain why the juvenile court’s “‘application of the law to the facts
[is] arbitrary and capricious’” in part, which taints our ability to defer to the court’s
exercise of discretion in applying the criteria. (Miguel R., supra, 100 Cal.App.5th at p.
165.) We then examine the five criteria in turn.
1. Application of the Law to the Facts
Portions of the juvenile court’s application of the law to the facts are articulated in
such an arbitrary way as to be reversible if standing alone. These are significant enough
to render the court’s overall conclusions an unreliable exercise of discretion.
In its statement of decision addressing each of the five criteria, each of its
headings and analysis cite to the first statutory prong identifying each criterion, but not to
the second statutory prong mandating consideration of factors for each criterion. (See,
e.g., § 707, subds. (a)(3)(C)(i) [previous delinquent history identified], (a)(3)(C)(ii)
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[“shall consider” effect of family and community environment and childhood trauma].)
In its sole reference to a second prong, in discussing one of the criteria, the court stated
that it is to “give weight” to factors “as the court deems appropriate,” rather than
recognizing that the statute requires consideration of the factors. Although a perfect
summary and recital of the statute is not required, the court’s approach evinces nearly a
complete absence of the five “shall consider” prongs in section 707, subdivision (a)(3)
and their application.
As such, not only does the court not mention the factors that the statute says the
court shall consider, but the court’s five pages of analysis of the five criteria do not even
mention the report of the psychologist Caddell that was D.H.’s primary evidence. The
analysis also does not mention psychological or background factors. (See § 707, subds.
(a)(3)(A)(ii) [shall consider effect of family environment], (a)(3)(B)(ii) [shall consider
potential to grow and mature], (a)(3)(C)(ii) [shall consider effect of family environment],
(a)(3)(E)(ii) [shall consider mental and emotional development].) The cumulative effect
is to create an arbitrary exercise of discretion, rather than one grounded in the statute.
As well, the court articulated two significant factual findings that cannot be
justified. In addressing D.H.’s amenability to rehabilitation in its statement of decision,
the court stated that D.H. had shown “no interest in addressing any of his issues as
confirmed by the probation officer’s report.” That report was based on an August 27,
2024, interview with D.H. Yet the court did not even mention that the psychologist
Caddell’s report about six months later asserted that when D.H. spoke to the officer, he
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did not understand his issues and how treatment would help, that D.H. had since been
seeing a mental health counselor and psychiatrist, and that he “participates in
programming without issue.”
The court stated that D.H. “has shown no remorse for his actions.” But the
probation report stated that, as ordered by the court, the officer did not ask D.H. “about
his attitude toward the offenses nor the victims.” The court did not discuss the letter D.H.
wrote the court, in which he stated that he “understand[s] the pain I have inflicted on the
family. It’s not something I wish on anybody.” There is no basis for the court’s “no
remorse” finding.
Additionally, in an introductory summary of Caddell’s psychological report, the
court stated that Caddell indicated that D.H.’s “characteristics can be difficult to
rehabilitate.” Caddell’s full statement was that D.H.’s “characteristics can be difficult to
rehabilitate, but not impossible with intensive support and intervention.” Leaving out the
affirmative portion of Caddell’s statement obscured that she presented a viewpoint with
an articulated basis, even though the court recognized that Caddell’s “overall” conclusion
was that D.H. was “suitable” for juvenile court. As a single statement, this, as the others
mentioned here, would not establish an arbitrary application of the facts to the law. The
cumulative impact of the way the court used the statute and the facts here establishes that,
however, eliminating our ability to defer to the court’s application of the statutory
criteria, which we discuss next.
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2. Rehabilitation Prior to Expiration of Juvenile Court Jurisdiction
Section 707, subdivision (a)(3)(B)(i) directs the juvenile court to consider
“[w]hether the minor can be rehabilitated prior to the expiration of the juvenile court’s
jurisdiction.”
We begin with when the juvenile court’s jurisdiction would expire. The juvenile
court stated that its jurisdiction would expire when D.H., then 18 years old, turned “23 or
25, based upon the maximum confinement time set at the time of the dispositional
hearing.” It thus concluded it would lose jurisdiction in “either” 2029 or 2031.
The People stated in its trial court brief, however, that the juvenile court “would
have jurisdiction for a maximum of just over six years”—in other words, until D.H.
turned 25. The People’s characterization was correct. The juvenile court generally has
jurisdiction over a minor until the minor turns 23 years old if the minor committed certain
offenses. (§ 607, subd. (b).) However, “if the person, at the time of adjudication of a
crime or crimes, would, in criminal court, have faced an aggregate sentence of seven
years or more,” then the juvenile court may retain jurisdiction until the minor turns 25
years old. (§ 607, subd. (c); see also O.G. v. Superior Court (2021) 11 Cal.5th 82, 93
[under § 1800, prosecutor may petition for extension of juvenile court jurisdiction past
age of 25 under certain circumstances].) Because D.H. faces charges of murder and
attempted murder, the juvenile court could retain jurisdiction over him until he turned 25
years old. (Pen. Code, §§ 190, subd. (a), 664, subd. (a).) The juvenile court thus had a
window of six years to consider, not four as it suggested might be the case.
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Turning then to whether D.H. can be rehabilitated during this time, the evidence
“generally requires ‘expert testimony concerning the programs available, the duration of
any of the programs, or whether attendance would rehabilitate’” the minor. (S.S., supra,
89 Cal.App.5th at p. 1291.) Here, the juvenile court relied heavily on the probation
officer’s report, which concluded that this criterion weighed in favor of transfer. There
were multiple reasons, however, why such reliance was unwarranted.
The probation officer’s report conflated the time D.H. would be under the court’s
jurisdiction with the time he would likely be committed to a secure youth treatment
facility, the latter of which it stated would be three and a half years. As noted, the
juvenile court can retain jurisdiction over D.H. until he turns 25, which, at the time the
transfer motion was decided, equated to over six years. The probation officer’s report
stated that D.H. could be released from a secure youth treatment facility in three and a
half years after credits were taken into account, and it based its assessment on a three and
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a half year timeframe. But the two are not the same. After being discharged from a
secure youth treatment facility, a juvenile court orders conditions of probation and
regularly reviews the minor’s progress on probation, which it would not be able to do if it
did not have continuing jurisdiction over the minor. (Cal. Rules of Court, rule
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The probation officer’s report did not state how it arrived at the three and a half
year figure. It noted that if D.H. were to be committed to a secure youth treatment
facility, “his baseline term, under Category A, would be four to seven years less any
credit reductions.” (See Cal. Rules of Court, rule 5.806(d).) However, at the time of the
report, D.H. had just under four months of credit, and precommitment credits “must be
applied against the maximum term of confinement” (§ 875, subd. (c)(1)(C)), which in
D.H.’s case would be until he turned 25.
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5.808(c)(1).) There was accordingly no basis for it to equate the length of the court’s
jurisdiction with time spent in a secure youth treatment facility.
Moreover, the probation officer’s report only briefly cited D.H.’s family history
before making a rather startling conclusion. In a single sentence, it stated: “The several
unaddressed traumas of living in poverty, having parents with extensive criminal
backgrounds, the unexplored possible reason for why the minor’s accident occurred in
May of 2022, as well as the impact of becoming a dependent could not possibly be
undone or even somewhat addressed within the minimum three-and-a-half years of
services that would be available to him should he remain under juvenile jurisdiction.”
(Italics added.) The report did not elaborate on why. There was no evidence or
discussion as to why available programs would have had no effect in three and a half
years, let alone six years, or why such circumstances might make someone particularly
resistant to rehabilitation.
The probation officer’s report in J.N. v. Superior Court (2018) 23 Cal.App.5th 706
(J.N.) had similar flaws. As the Court of Appeal described, “the probation officer stated
that if J.N. were committed to the Department of Corrections and Rehabilitation, Division
of Juvenile Justice, he ‘would undergo a 45-day orientation process during which he
would be assessed for mental and behavioral health treatment needs.’” (Id. at p. 721.) It
continued: “‘Based upon assessment findings, the youth would be offered various
evidence-based interventions which could include Gang Intervention program,
Aggression Interruption Training (AIT), Cognitive Behavioral Interventions for
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Substance Abuse (CBI-SA), and/or CounterPoint, a cognitive behavioral program
designed for males at high risk for recidivism.’ Then, without any analysis, the report
concludes: ‘Therefore, under this criterion, the minor appears to be unsuitable to be dealt
with under the Juvenile Court law.’” (Ibid.) J.N. noted that “[t]here was no evidence that
demonstrated existing programs were unlikely to result in J.N.’s rehabilitation, why they
were unlikely to work in this case, or that they would take more than three years to
accomplish the task of rehabilitating J.N.” (Id. at p. 722.) It thus concluded that, even
assuming for the sake of argument that the probation officer’s report generally constituted
an expert opinion—which the court stated it did not—the report would still not have
shown that the minor could not be rehabilitated in time because “the opinion lacked
support by substantial evidence.” (Ibid.)
The same is true of the probation officer’s report here. It did not say what about
growing up in poverty with parents who have criminal backgrounds makes a child
incorrigible—it simply concluded that such a child was beyond rehabilitation. Thus, as
in J.N., we find that the probation officer’s opinion in the report lacks support by
substantial evidence, so it fails to demonstrate that D.H. could not be rehabilitated in
time.
The probation officer’s report made additional statements that would not have
supported transfer under this criterion. It stated that during his time in custody, D.H. has
been “involved in one multi-youth fight that required the use of chemical agents and
mechanical restraints.” There is nothing else, however, that sheds additional light on
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what happened. There is nothing indicating, for instance, whether D.H. was an
aggressor, a victim, or how significant his involvement was.
Similarly, the probation officer’s report stated that even though D.H. “expressed a
willingness to participate in any programs ordered including therapy,” the probation
officer did not believe D.H. was being truthful given his refusal to participate in services
while in dependency. Dependency focuses on safeguarding a child’s welfare by
preserving family relationships, and it does so by offering services to parents. (In re
Nolan W. (2009) 45 Cal.4th 1217, 1228; see ibid. [“Reunification services are typically
understood as a benefit provided to parents, because services enable them to demonstrate
parental fitness and so regain custody of their dependent children”].) The “major purpose
of juvenile commitment,” on the other hand, “is rehabilitation.” (In re Ismael A. (1989)
207 Cal.App.3d 911, 915; see also In re W.B. (2012) 55 Cal.4th 30, 46 [“Whereas the
dependency system is geared toward protection of a child victimized by parental abuse or
neglect, the delinquency system enforces accountability for the child’s own wrongdoing,
both to rehabilitate the child and to protect the public”].) The report does not elaborate
on what specific services D.H. was offered while in dependency or how they related to
his rehabilitative needs in delinquency. D.H. stated that no services were offered to him
in dependency, but even if they had been offered and refused, such a refusal would not
have automatically demonstrated a refusal of rehabilitation services in delinquency given
its different objectives. Without more, there was no basis for the probation officer to
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infer D.H. was uninterested in rehabilitation based on previously declining dependency
services, especially given his stated willingness to participate in rehabilitative programs.
In concluding that this criterion weighed in favor of transfer, the juvenile court
cited D.H.’s lack of interest in rehabilitation, his involvement in the fight, and the
probation officer’s conclusion that D.H.’s issues were impossible to address in time. As
discussed, none of these are adequately supported by the record. It also relied on “the
nature and severity of the minor’s most recent offense, namely the murder of another
human being.” However, as O.F. noted, “it is the ‘potential’ for minors to grow and
mature, notwithstanding their prior delinquent conduct, that is relevant to the juvenile
court’s evaluation of the second criterion.” (O.F., supra, 119 Cal.App.5th at pp. 164-
165; see also § 707, subd. (a)(3)(B)(ii) [“the juvenile court shall give weight to any
relevant factor, including, but not limited to, the minor’s potential to grow and mature”].)
The juvenile court cited no evidence pointing against transfer in discussing this
criterion. This included D.H.’s letter to the court, in which he expressed hope “for a
second chance [to] prove myself and be able to make it back home to my daughter.” It
also included the psychologist’s report, where the psychologist opined that D.H. “met the
criteria for at least two diagnoses that can also be addressed with treatment at the juvenile
jurisdictional level.” (See O.F., supra, 119 Cal.App.5th at p. 164 [“the testimony of
experts that the minor can be treated ‘“is entitled to great weight in the court’s ultimate
determination”’”].) The psychologist stated that D.H. “is capable of making positive
changes when he is in a safe environment that is highly structured, with adequate
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4
supervision and a focus on rehabilitation (with multiple treatment programs).” The
probation officer’s report also noted the progress D.H. had made: “[D.H.] reported he
has been focused on his academics since his detention as he is focused on graduating and
entering the workforce upon his release. Records provided indicate he has earned 23
credits since his detention, which is a notable improvement from three school years of
earning zero credits.” Additionally, it noted that D.H. “is respectful to staff,”
“participates in programming without issues,” and “is regularly praised for his positive
attitude and help with unit clean up duties.” The juvenile court did not lay out its reasons
for why it declined to give these items significant weight.
3. Previous Delinquent History
In deciding on a transfer motion, the juvenile court must consider the “minor’s
previous delinquent history,” and in doing so, “the juvenile court shall give weight to any
relevant factor, including, but not limited to, the seriousness of the minor’s previous
delinquent history and the effect of the minor’s family and community environment and
childhood trauma on the minor’s previous delinquent behavior.” (§ 707, subd.
(a)(3)(C)(i)-(ii).)
The juvenile court pointed to four items in D.H.’s record in finding that this
criterion weighed toward transfer: the incident where D.H. ran across the freeway while
4
The psychologist’s report also states that D.H. has been seeing a mental health
counselor twice a month and a psychiatrist monthly, and that he has noticed changes in
his behavior since beginning to take medication. These further cut against the idea, stated
in the probation officer’s report and cited in the juvenile court’s ruling, that D.H. was
uninterested in rehabilitation.
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intoxicated and was struck by a vehicle, which led to the dependency matter; a referral to
probation for public intoxication; the three pending delinquency petitions, each alleging
D.H. stole a vehicle; and an incident where D.H. left his daughter on the daughter’s
mother’s doorstep.
Viewing these incidents “‘through the lens of amenability to rehabilitation’” (O.F.,
supra, 119 Cal.App.5th at p. 162), these items do not support a transfer finding. None of
these incidents involved formal findings that D.H. committed offenses, so strictly
speaking they do not implicate D.H.’s previous delinquent history at all. Even
considering the criterion more broadly, however, this history does not support transfer.
(See D.C. v. Superior Court (2021) 71 Cal.App.5th 441, 455 [“the legislative history of
the section 707 criteria indicates an overarching intent to grant judges broad discretion to
consider all evidence relevant to this inherently case-by-case determination”].) D.H.
running across the freeway while intoxicated placed his safety at serious risk, but it led to
a dependency matter primarily focused on his parents’ parental fitness, not on
accountability for his wrongdoing. Additionally, no juvenile court had ruled on the
pending petitions, but even assuming the allegations in them were found true, they
involved property crimes over a brief period of less than two weeks, with no indication
that they involved firearms or violence.
When “family and community environment and childhood trauma” is taken into
account (§ 707, subd. (a)(3)(C)(ii)), D.H.’s previous delinquent history shows even
weaker support for transfer. As noted, the psychologist’s report stated that D.H.
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“expressed having anger, persistent worry, and fear about his mother’s safety.” He
“described that at age 14, his mother was robbed at gunpoint and came home with bruises
and a black eye. He then reported a second robbery that took place when [he] was 16.
He reported that these robberies, seeing men make attempts and succeed in physically
assaulting his mother, and being taken from his mother’s custody, caused him to view the
world and others negatively.” He “acknowledged that he was engaging in delinquency
because he was immature, not thinking about the consequences of his actions, and due to
anger at how his mother was being treated in his community. [D.H.] stated that he did
not care about or appreciate how he was impacting others by his actions because he felt
that no one cared about the harm that was being done to his mother.” He also “reported a
history of paranoia and hypervigilance that he attributed [to] his experience of
community violence and his mother’s negative experiences.” The juvenile court did not
cite D.H.’s “family and community environment and childhood trauma” (§ 707, subd.
(a)(3)(C)(ii)) in discussing this criterion.
Viewing a minor’s previous delinquent history through the lens of amenability to
rehabilitation requires consideration of whether rehabilitation can address any underlying
causes of prior delinquent behavior. In O.F., the Court of Appeal stated that that meant
considering whether rehabilitation could help the minor sever his ties to gangs. It stated:
“It is likely no coincidence that the timeline of O.F.’s delinquency aligns so closely with
his time in the HOGGs gang. To the extent O.F.’s gang ties entrapped him in a cycle of
reoffending after engaging in services, the pertinent questions regarding his amenability
22
to rehabilitation are whether he can sever those ties, and whether he has been given
adequate services to learn to do so.” (O.F., supra, 119 Cal.App.5th at p. 166.)
Here, one thread running through D.H.’s history is his substance abuse. After
attempting to run across a freeway and being struck by a vehicle, D.H. had a blood
alcohol content of 0.219 percent at the hospital, more than two and a half times the legal
limit for an adult, as well as marijuana in his system. He also had a referral to probation
for public intoxication for a separate incident, and when arrested for one of the vehicle
thefts, D.H. had a bottle of tequila in his bag, and the arresting officer noted that his
breath smelled like alcohol. Thus, in considering this criterion, “the pertinent questions
regarding his amenability to rehabilitation” are whether he can overcome his substance
abuse and “whether he has been given adequate services to learn to do so.” (O.F., supra,
119 Cal.App.5th at p. 166.) The same applies to D.H.’s gang affiliations, which may
have been another underlying cause of his delinquent behavior. The juvenile court failed
to address any of these questions.
4. Success of Previous Rehabilitation Attempts
A juvenile court must consider the “[s]uccess of previous attempts by the juvenile
court to rehabilitate the minor” when considering transfer. (§ 707, subd. (a)(3)(D)(i).)
Although the juvenile court acknowledged that “services have not been offered,” it
nevertheless concluded that “[a]s to this specific criteria, . . . transfer is appropriate.”
Specifically, it stated: “The simple fact that services have not been offered should be
considered along with the numerous petitions filed, the time available to provide any
23
services, and the minor’s failure to accept services offered by DPSS. Certainly there was
no success as to the prior services offered by DPSS. Nothing has changed to indicate that
the minor will all of a sudden decide to accept services offered in the future.”
This was error. Although here, as with every other criterion, the juvenile court
“shall give weight to any relevant factor” (§ 707, subd. (a)(3)(D)(ii)), what it may not do
is simply repeat factors more directly germane to other criteria and blame D.H. for
refusing to accept services the record fails to show were aimed at rehabilitation. In no
way could the lack of previous attempts by the juvenile court to rehabilitate D.H. have
reasonably weighed this criterion in favor of transfer.
5. Criminal Sophistication; Circumstances and Gravity of Alleged Offense
The final two criteria are the “degree of criminal sophistication exhibited by the
minor” and the “circumstances and gravity of the offense alleged in the petition to have
been committed by the minor.” (§ 707, subd. (a)(3)(A)(i), (E)(i).) When considering
criminal sophistication, the juvenile court “shall give weight to any relevant factor,
including, but not limited to, the minor’s age, maturity, intellectual capacity, and
physical, mental, and emotional health at the time of the alleged offense; the minor’s
impetuosity or failure to appreciate risks and consequences of criminal behavior; the
effect of familial, adult, or peer pressure on the minor’s actions; the effect of the minor’s
family and community environment; the existence of childhood trauma; the minor’s
involvement in the child welfare or foster care system; and the status of the minor as a
victim of human trafficking, sexual abuse, or sexual battery on the minor’s criminal
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sophistication.” (§ 707, subd. (a)(3)(A)(ii).) When considering the circumstances and
gravity of the offense, the juvenile court “shall give weight to any relevant factor,
including, but not limited to, the actual behavior of the person, the mental state of the
person, the person’s degree of involvement in the crime, the level of harm actually caused
by the person, and the person’s mental and emotional development.” (§ 707, subd.
(a)(3)(E)(ii).)
For criminal sophistication, the juvenile court cited D.H.’s association with a gang
(specifically his “association with older more sophisticated gang members”), his ability to
obtain a rifle, the plan of getting the victims to the location under a false pretense, and
D.H.’s flight after the shooting. It accordingly found “the evidence does support a
finding that [D.H.] knew what he was doing, participated willingly, [and] had knowledge
of the plan and implementation of the plan.”
The juvenile court did not cite “the effect of [D.H.’s] family and community
environment,” “the existence of childhood trauma,” or D.H.’s “involvement in the child
welfare or foster care system” in discussing this factor. (§ 707, subd. (a)(3)(A)(ii); see
S.S., supra, 89 Cal.App.5th at p. 1294 [“The court’s explanation, like its analysis, should
focus on [a] minor’s amenability to rehabilitation”].) Specifically as to the juvenile
court’s reliance on D.H.’s gang affiliation, the juvenile court did not cite the effect of
adult or peer pressure on D.H. (See O.F., supra, 119 Cal.App.5th at p. 167 [“The court
must consider O.F.’s amenability to rehabilitation if those negative adult influences can
be excised from his life and replaced by prosocial ones”].) Additionally, a minor’s
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“knowledge that his actions were wrong and his ability ‘to appreciate risks and
consequences of criminal behavior’ . . . do not in and of themselves demonstrate criminal
sophistication.” (Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 193.) Thus, the
juvenile court’s finding that D.H. knew the plan and participated willingly did not show
criminal sophistication.
In considering the circumstances and gravity of the alleged offense, the juvenile
court discussed the allegations of the three pending petitions for vehicle theft, which
showed “an inability [for D.H.] to be law abiding.” As noted, these are alleged property
offenses not involving violence, but more importantly, they do not directly relate to the
murder and attempted murder allegations. (See Kevin P. v. Superior Court, supra, 57
Cal.App.5th at p. 189 [“The gravity criterion focuses on the offense ‘“alleged in the
petition”’”].) Moreover, the juvenile court cited D.H.’s tattoos, which “reveal his desire
to membership in a criminal street gang.” In viewing the statutory criteria through the
lens of amenability to rehabilitation, however, a juvenile court must consider not only
whether a minor desires membership in a gang, but also whether gang intervention
treatment can help “address the ostensible root cause of his delinquency.” (O.F., supra,
119 Cal.App.5th at p. 166.)
The alleged offenses here are serious. As the juvenile court noted, in addition to
being shot himself, “[t]he surviving victim in the present case observed his brother being
shot and killed.” However, “the gravity of the offense is not dispositive” (O.F., supra,
119 Cal.App.5th at p. 168), and section 707 “does not exclude juveniles charged with
26
murder from consideration for treatment in juvenile court” (J.N., supra, 23 Cal.App.5th at
p. 724).
6. Conclusion
“[A] minor’s amenability to rehabilitation is the central and ‘dispositive’ question
in proceedings under section 707 [citation], and the juvenile court’s analysis of the
section 707 criteria must be ‘focused through the lens of amenability to rehabilitation.’”
(O.F., supra, 119 Cal.App.5th at p. 162.) As we have stated, the proof must be by a clear
and convincing evidence, which means a “‘high probability’” that the minor is not
amenable. (Conservatorship of O.B., supra, 9 Cal.5th at p. 998; Miguel R., supra, 100
Cal.App.5th at p. 165.) Viewing the criteria through such lens, we find the evidence
insufficient to support a clear and convincing finding that D.H. is not amenable to
rehabilitation. Most importantly, D.H. has stated that he is willing to participate in
rehabilitation services, and there is no showing as to why those services could not
rehabilitate him in time. (See O.F., supra, 119 Cal.App.5th at p. 162 [“the ultimate
question presented . . . is whether clear and convincing evidence supports the juvenile
court’s conclusion that [the minor], while under the court’s jurisdiction, is not willing to
accept treatment that would restore him to a constructive place in society”].) The
juvenile court’s order granting the transfer motion was accordingly an abuse of
discretion.
We have discretion to remand for a new hearing or to order the transfer motion
denied. (See generally Pen. Code §§ 1260, 1262.) Where, as here, the People have had a
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full and fair opportunity to meet their burden under the correct law, ordering denial may
be the presumptive disposition, particularly where insufficient proof is the predominate
reason for reversal. The transfer determination should be resolved rapidly. (Cal. Rules
of Court, rule 8.417(i).) Nevertheless, for this case, we conclude that, after reversal,
credibility and predictability determinations remain central in determining the ultimate
amenability questions, such that we should not reweigh them on a cold record. D.H. has
stated he is interested in rehabilitation services, but the probation officer was skeptical
about D.H.’s sincerity. The juvenile court simply failed to address whether D.H. can
overcome his substance abuse and gang ties, a central issue about amenability. It is now
well over two years after the probation report that we have. We think it is appropriate for
the amenability question to be resolved at a new hearing by the juvenile court, rather than
by us.
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III. DISPOSITION
The order transferring D.H. to criminal court is reversed, and the matter is
remanded to the juvenile court to conduct a new amenability hearing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
______________________________________________________________________________________________________________________________________________________________________
J.
We concur:
MILLER
______________________________________________________________________________________________________________________________________________________________________
Acting P. J.
CODRINGTON
______________________________________________________________________________________________________________________________________________________________________
J.
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