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2014 California Rules of Court

Rule 5.772. Conduct of fitness hearings under sections 707(a)(2) and 707(c)

(a) Presumption (§§ 707(a)(2), 707(c))

In a fitness hearing under section 707(a)(2) or 707(c), the child is presumed to be unfit, and the burden of rebutting the presumption is on the child, by a preponderance of the evidence.

(Subd (a) amended effective January 1, 2007; previously amended effective January 1, 1996, and January 1, 2001.)

(b) Prima facie showing

On the child's motion, the court must determine whether a prima facie showing has been made that the offense alleged is a felony or is specified in section 707(b).

(Subd (b) amended effective January 1, 2007; previously amended effective January 1, 1996, and January 1, 2001.)

(c) Criteria to consider (§ 707(a)(2))

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

(1)The child was under 16 years of age at the time of the alleged felony offense;

(2)The child had not been declared a ward at the time of the alleged offense or any time previously;

(3)The child has not previously been found to have committed two or more felony offenses;

(4)The prior felony offenses were committed before the child had reached the age of 14 years; or

(5)The child would be amenable to the care, treatment, and training program available through the juvenile court, based on evaluation of each 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 (c) amended effective January 1, 2007; previously amended effective January 1, 1996, and January 1, 2001.)

(d) Findings under section 707(c)

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

(1)The child was under 14 years of age at the time of the offense specified in section 707(b);

(2)The offense alleged is not listed in section 707(b); or

(3)The child would be amenable to the care, treatment, and training program available through the juvenile court, based on evaluation of each of the criteria described in (c)(5).

(Subd (d) amended effective January 1, 2007.)

(e) Extenuating circumstances

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

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

(f) Findings (§§ 707(a)(2), 707(c))

The findings must be stated in the order.

(1)em] Finding of unfitness (§ 707 (a)(2))

If the child has failed to rebut the presumption of unfitness, the court must find that:

(A)The child has previously been found to have committed two or more offenses listed in section 707(b) and was 14 years of age or older at the time of the felony offenses; 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 in (c)(5).

(2)em] Finding of unfitness (§ 707(c))

If the child has failed to rebut the presumption of unfitness, the court must find that:

(A)The child was 14 years or older at the time of the alleged offense and the offense is listed in section 707(b); 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 in (c)(5).

(3)em] Finding of fitness (§§ 707(a)(2), 707(c))

In order to find the child fit, the court must find that the child would be amenable to the care, treatment, and training program through the juvenile court on each and every criterion in (c)(5), and the court must state that finding of amenability under each and every criterion.

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

(g) Procedure following findings

(1)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.

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

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

(h) 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 2 judicial days to allow time within which to obtain a stay of further proceedings from the reviewing judge or appellate court.

(Subd (h) amended effective January 1, 2009; adopted as subd (f); previously relettered as subd (g) effective January 1, 1996; previously amended and relettered effective January 1, 2001; previously amended effective January 1, 2007.)

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

(j) 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 extraordinary writ. Any petition for review of a judge's order determining the child to be 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 (j) amended effective January 1, 2007; adopted as subd (h); previously relettered as subd (i) effective January 1, 1996, and as subd (j) effective January 1, 2001.)

Rule 5.772 amended effective January 1, 2009; adopted as rule 1483 effective January 1, 1991; previously amended effective January 1, 1996, and January 1, 2001; previously amended and renumbered effective January 1, 2007.

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