Los Angeles Juvenile Defense Attorney

Posts Tagged ‘Fitness Hearing’

Trying Juveniles As Adults In Southern California

Sunday, June 10th, 2012

A recent article indicates that states are reconsidering the practice of trying juveniles in adult court.  The article, published by the highly-regarded Pew Center for the States is entitled, “States Have Second Thoughts About Juveniles in Adult Court.”  Apparently, states such as Colorado and New Jersey are making it more difficult for juveniles to be tried as adults.

That trend is not readily visible in California.  In 2000, 62 percent of voters passed Proposition 21, which increased penalties for juveniles.  Specifically, Proposition 21 increased punishments for gang-related felonies and imposed increased sentences for home-invasion robberies, carjacking, witness intimidation and drive-by-shootings.

In Los Angeles County and Southern California, it is unusual for prosecutors to “direct file” a case in adult court.  In my experience, even cases that are eligible to be filed directly in adult court are generally subject to fitness hearings.  As the name suggests, fitness hearings determine whether the juvenile is fit to be tried as an adult.  Typically, only cases that involve older juveniles and the most serious charges–e.g., a 17- year old charged with first degree murder with multiple victims, serial rape, etc.–are likely to be filed directly in adult court.

As a juvenile defense lawyer in Los Angeles, I don’t have first-hand knowledge as to what happens in other states.  I have no reason to doubt the findings in the Pew Center’s article.  But from where I sit, at least in California, prosecutors are not changing their stripes.  The trend of trying juveniles in adult court is not abating.  Juvenile fit hearings are alive and well in Los Angeles and throughout Southern California.

Will My Child Be In Juvenile Court or Adult Court?

Friday, January 8th, 2010

In certain situations, a case from juvenile court will be transferred to adult court.  Depending on the alleged offense, this case may either be filed directly in adult court (called a “direct filling”) or the juvenile court will determine whether or not the Minor is “fit” for juvenile court (called a “fitness hearing”).

Offenses Which Are Automatically Filed In Adult Court

If your child is at least 14 years old at the time of the offense, the District Attorney must file the following offenses in adult court:

  • Murder if the minor personally committed the murder and one of the special circumstances as listed in Penal code 190.2 exist.
  • Certain sex offenses where the minor personally carried out the offense and where special circumstances exist as listed in Penal code Section 667.61(d)

Juvenile Offenses that Might be Filed Directly in Adult Court

A prosecutor has the discretion, but is not required, to directly file a case in adult court in the following cases:

  • The minor is 16 years of age or older and the offense charged is one listed in Welfare and Insitutions Code 707(b).  This now includes all robbery offenses (first or second degree).
  • Any crime punishable by death or life in prison
  • Any crime in which the minor personally used a firearm.

The minor is 14 years of age or older and the offense charged is one of the following:

  • An offense that would be punishable by life in prison or death if committed by an adult. [Note: Children are NOT eligible for the death penalty]
  • A minor personally used a firearm in the commission of a felony
  • The offense is an offense listed in 707(b) with one or more of the following circumstances:
  • The minor has been previously made a Ward of the Court under Welfare and Institutions Code 602 (NOT a Dependent Ward under Sec. 300)
  • The offense is “gang related” as defined by Penal Code Sec. 186.22(f)
  • The offense is a “hate crime” as defined by Penal Code Sec. 426.6
  • The alleged victim is over 65 or disabled and the minor knew or reasonably should have known this fact.

It is important to remember that the each Los Angeles County Deputy District Attorney maintains a good deal of discretion in deciding whether to file the case in adult or juvenile court.  A qualified juvenile defense attorney who is familiar with the Los Angeles County Juvenile courts may be able to intervene early with the prosecutor in an effort to keep the case in juvenile court.

What is A Juvenile Fitness Hearing?

A juvenile fitness hearing is a hearing before the juvenile court which determines whether a minor will be prosecuted as a juvenile or as an adult.  Fitness hearings fall into one of three categories:

  1. If the minor is accused of committing an offense at the age of 16 or over and has no prior offenses, the District Attorney must prove by a “preponderance of the evidence” that the Minor should be tried as an adult.
  2. If the minor is over 16 at the time of the offense and has sustained two prior felony convictions after the age of 14, the court will presume the minor should be tried as an adult.  At the fitness hearing, the defense (the minor’s lawyer) must prove by a “preponderance of the evidence” that the case should stay in juvenile court.
  3. If the minor is 14 or over and committed an offense listed in Welfare and Institutions Code 707(b), the court will presume the minor should be tried as an adult.  The defense must show by a preponderance of the evidence that the case should stay in juvenile court.

Notice that the prosecution is only required to prove “unfitness” for juvenile court in sceanrio #1.  In situations #2 and #3, it is up to the defense to prove that the case should stay in juvenile court.

Factors Considered By The Court In Determining Fitness

When deciding whether or not a juvenile will be tried as an adult or a minor, the court is required to consider the following factors:

  1. The sophistication of the current alleged crime.
  2. The likelihood that the minor can be rehabilitated before he or she “ages out” of juvenile court jurisdiction.
  3. The minor’s previous criminal/delinquency history.
  4. The success of the minor on previous probations before the juvenile court
  5. The circumstances and the gravity of the current alleged offense.

There are severe risks and consequences to you or your child’s case going to adult court rather than juvenile court.  Contact a qualified Los Angeles County juvenile defense attorney to discuss you or your child’s case.  You may call attorney Jerod Gunsberg at 310-210-0744 for a free consultation.