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2014 California Rules of Court

Rule 5.770. Conduct of fitness hearing under section 707(a)(1)

(a) Burden of proof (§ 707(a)(1))

In a fitness hearing under section 707(a)(1), the burden of proving that the child is unfit is on the petitioner, by a preponderance of the evidence.

(Subd (a) amended effective July 1, 2002; previously amended effective January 1, 1996, and January 1, 2001.)

(b) Criteria to consider (§ 707(a)(1))

Following receipt of the probation officer's report and any other relevant evidence, the court may find that the child is not a fit and proper subject to be dealt with under juvenile court law if the court finds:

(1)The child was 16 years or older at the time of the alleged offense; and

(2)The child would not be amenable to the care, treatment, and training program available through facilities of the juvenile court, based on an evaluation of all of the following criteria:

(A)The degree of criminal sophistication exhibited by the child;

(B)Whether the child can be rehabilitated before the expiration of jurisdiction;

(C)The child's previous delinquent history;

(D)The results of previous attempts by the court to rehabilitate the child; and

(E)The circumstances and gravity of the alleged offense.

(Subd (b) amended effective January 1, 2007; adopted as subd (b); previously amended and relettered as subd (c) effective January 1, 1996; previously amended and relettered effective January 1, 2001.)

(c) Findings under section 707(a)(1)

The findings must be stated in the order.

(1)em] Finding of fitness

The court may find the child to be fit and state that finding.

(2)em] Finding of unfitness

If the court determines the child is unfit, the court must find that:

(A)The child was 16 years or older at the time of the alleged offense; and

(B)The child would not be amenable to the care, treatment, and training program available through the juvenile court because of one or a combination of more than one of the criteria listed in (b)(2).

(Subd (c) amended effective January 1, 2007; adopted as subd (c); previously amended and relettered as subd (d) effective January 1, 1996; amended and relettered effective January 1, 2001; previously amended effective July 1, 2002.)

(d) Maintenance of juvenile court jurisdiction

If the court determines that one or more of the criteria listed in (b)(2) apply to the child, the court may nevertheless find that the child is amenable to the care, treatment, and training program available through the juvenile court and may find the child to be a fit and proper subject to be dealt with under juvenile court law.

(Subd (d) amended effective January 1, 2007; adopted as subd (e) effective January 1, 1996; previously amended and relettered effective January 1, 2001.)

(e) Extenuating circumstances

The court may consider extenuating or mitigating circumstances in the evaluation of each relevant criterion.

(Subd (e) relettered effective January 1, 2001; adopted as subd (f) effective January 1, 1996.)

(f) Procedure following findings

(1)If the court finds the child to be fit, the court must proceed to jurisdiction hearing under rule 5.774.

(2)If the court finds the child to be unfit, the court must make orders under section 707.1 relating to bail and to the appropriate facility for the custody of the child, or release on own recognizance pending prosecution. The court must dismiss the petition without prejudice.

(Subd (f) amended effective January 1, 2007; adopted as subd (d); previously relettered as subd (g) effective January 1, 1996, and as subd (f) effective January 1, 2001; previously amended effective July 1, 2002.)

(g) Continuance to seek review

If the prosecuting attorney informs the court orally or in writing that a review of a finding of fitness will be sought and requests a continuance of the jurisdiction hearing, the court must grant a continuance for not less than two judicial days to allow time within which to obtain a stay of further proceedings from the reviewing judge or appellate court.

(Subd (g) amended effective January 1, 2007; adopted as subd (e); previously relettered as subd (h) effective January 1, 1996, and as subd (g) effective January 1, 2001; previously amended effective July 1, 2002.)

(h) Subsequent role of judicial officer

Unless the child objects, the judicial officer who has conducted a fitness hearing may participate in any subsequent contested jurisdiction hearing relating to the same offense.

(Subd (h) amended and relettered effective January 1, 2001; adopted as subd (f); relettered as subd (i) effective January 1, 1996.)

(i) Review of fitness determination

An order that a child is or is not a fit and proper subject to be dealt with under the juvenile court law is not an appealable order. Appellate review of the order is by petition for extraordinary writ. Any petition for review of a judge's order determining the child unfit, or denying an application for rehearing of the referee's determination of unfitness, must be filed no later than 20 days after the child's first arraignment on an accusatory pleading based on the allegations that led to the unfitness determination.

(Subd (i) amended effective July 1, 2002; adopted as subd (g); previously relettered as subd (j) effective January 1, 1996; amended and relettered effective 1, 2001.)

Rule 5.770 amended and renumbered effective January 1, 2007; adopted as rule 1482 effective; previously amended effective January 1, 1996, January 1, 2001, and July 1, 2002.

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