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2023 California Rules of Court

Rule 5.770. Conduct of transfer of jurisdiction hearing under section 707

(a) Burden of proof (§ 707)

In a transfer of jurisdiction hearing under section 707, the burden of proving that there should be a transfer of jurisdiction to criminal court jurisdiction is on the petitioner, by a preponderance of the evidence.

(Subd (a) amended effective May 22, 2017; previously amended effective January 1, 1996, January 1, 2001, and July 1, 2002.)

(b) Criteria to consider (§ 707)

Following receipt of the probation officer's report and any other relevant evidence, the court may order that the youth be transferred to the jurisdiction of the criminal court if the court finds:

(1)  The youth was 16 years or older at the time of any alleged felony offense, or the youth was 14 or 15 years of age at the time of an alleged felony offense listed in section 707(b) and was not apprehended prior to the end of juvenile court jurisdiction; and

(2)  The youth should be transferred to the jurisdiction of the criminal court based on an evaluation of all the criteria in section 707(a)(3) as provided in that section. The court must state on the record the basis for its decision, including how it weighed the evidence and identifying the specific factors on which the court relied to reach its decision.

Subd (b) amended effective January 1, 2023; adopted as subd (b); previously amended and relettered as subd (c) effective January 1, 1996; previously amended and relettered effective January 1, 2001; previously amended effective January 1, 2007, and May 22, 2017, and January 1, 2021.)

(c) Basis for order of transfer

If the court orders a transfer of jurisdiction to the criminal court, the court must recite the basis for its decision in an order entered on the minutes.

(Subd (c) amended effective May 22, 2017; 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, and January 1, 2007.)

(d) Procedure following findings

(1)  If the court finds the youth should be retained within the jurisdiction of the juvenile court, the court must proceed to jurisdiction hearing under rule 5.774.

(2)  If the court finds the youth should be transferred to the jurisdiction of the criminal court, the court must make orders under section 707.1 relating to bail and to the appropriate facility for the custody of the youth, or release on own recognizance pending prosecution. The court must set a date for the youth to appear in criminal court and dismiss the petition without prejudice upon the date of that appearance.

(3)  When the court rules on the request to transfer the youth to the jurisdiction of the criminal court, the court must advise all parties present regarding appellate review of the order as provided in subdivision (g) of this rule. The advisement may be given orally or in writing when the court makes the ruling. The advisement must include the time for filing the notice of appeal or the petition for extraordinary writ as set forth in subdivision (g) of this rule. The court must advise the youth of the right to appeal, of the necessary steps and time for taking an appeal, of the right to the appointment of counsel if the youth is unable to retain counsel, and the right to a stay.

(Subd (d) amended effective January 1, 2023; 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, and January 1, 2007; previously relettered and amended effective May 22, 2017.)

(e) Continuance or stay pending review

(1)  If the prosecuting attorney informs the court orally or in writing that a review of the court's decision not to transfer jurisdiction to the criminal court 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.

(2)  If the youth informs the court orally or in writing that a notice of appeal of the court's decision to transfer jurisdiction to the criminal court will be filed and requests a stay, the court must issue a stay of the criminal court proceedings until a final determination of the appeal. The court retains jurisdiction to modify or lift the stay upon request of the youth.

(Subd (e) amended effective January 1, 2023; 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, and January 1, 2007; previously relettered and amended effective May 22, 2017.)

(f) Subsequent role of judicial officer

Unless the youth objects, the judicial officer who has conducted a hearing on a motion to transfer jurisdiction may participate in any subsequent contested jurisdiction hearing relating to the same offense.

(Subd (f) amended effective January 1, 2023; adopted as subd (f); relettered as subd (i) effective January 1, 1996; previously amended and relettered as subd (h) effective January 1, 2001, and as subd (f) effective May 22, 2017.)

(g) Review of determination on a motion to transfer jurisdiction to criminal court

(1)  An order granting a motion to transfer jurisdiction of a youth to the criminal court is an appealable order subject to immediate review. A notice of appeal must be filed within 30 days of the order transferring jurisdiction or 30 days after the referee's order becomes final under rule 5.540(c) or after the denial of an application for rehearing of the referee's decision to transfer jurisdiction of the youth to the criminal court. If a notice of appeal is timely filed, the court must prepare and submit the record to the Court of Appeal within 20 days.

(2)  An order denying a motion to transfer jurisdiction of a youth to the criminal court 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 denying a motion to transfer jurisdiction of the child to the criminal court, or denying an application for rehearing of the referee's determination not to transfer jurisdiction of the child to the criminal court, must be filed no later than 20 days after the judge's order is entered, or the referee's order becomes final under rule 5.540(c).

(Subd (g) amended effective January 2, 2023; adopted as subd (g); previously relettered as subd (j) effective January 1, 1996; amended and relettered effective 1, 2001, and as subd (g) effective May 22, 2017; previously amended as subd (i) effective July 1, 2002.)

(h) Postponement of plea prior to transfer hearing

If a hearing for transfer of jurisdiction has been noticed under section 707, the court must postpone the taking of a plea to the petition until the conclusion of the transfer hearing, and no pleas that may have been entered already may be considered as evidence at the hearing.

(Subd (h) adopted effective May 22, 2017.)

Rule 5.770 amended effective January 1, 2023; adopted as rule 1482 effective January 1, 1991; previously amended effective January 1, 1996, January 1, 2001, July 1, 2002, May 22, 2017, and January 1, 2021; previously amended and renumbered effective January 1, 2007.

Advisory Committee Comment

Subdivision (b). This subdivision reflects changes to section 707 as a result of the passage of Senate Bill 382 (Lara; Stats. 2015, ch. 234) and Proposition 57, the Public Safety and Rehabilitation Act of 2016. SB 382 was intended to clarify the factors for the juvenile court to consider when determining whether a case should be transferred to criminal court by emphasizing the unique developmental characteristics of children and their prior interactions with the juvenile justice system. Proposition 57 provided that its intent was to promote rehabilitation for juveniles and prevent them from reoffending, and to ensure that a judge makes the determination that a youth should be tried in a criminal court. Consistent with this intent, the committee urges juvenile courts-when evaluating the statutory criteria to determine if transfer is appropriate-to look at the totality of the circumstances, taking into account the specific statutory language guiding the court in its consideration of the criteria.

Under subdivision (b)(2), the court must state on the record the basis for its decision. The statement of decision must fully explain the court's reasoning to allow for meaningful appellate review. See, e.g., C.S. v. Superior Court (2018) 29 Cal.App.5th 1009.

Subdivision (c). While this rule and section 707 only require the juvenile court to recite the basis for its decision when the transfer motion is granted, the advisory committee believes that juvenile courts should, as a best practice, state the basis for their decisions on these motions in all cases so that the parties have an adequate record from which to seek subsequent review.

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