D.C. v. Super. Ct.

Filed 11/9/21
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

D.C.,
Petitioner,
v.
THE SUPERIOR COURT OF A162937
SONOMA COUNTY,
(Sonoma County
Respondent;
Super. Ct. No. 38997J,
THE PEOPLE, J-38997-02, SCR7432051)
Real Party in Interest.

In 2020, a juvenile wardship petition was filed charging D.C.
(Petitioner) with committing a murder in 2016, when he was 16 years old.
The People filed a motion to transfer Petitioner from juvenile court to a court
of criminal jurisdiction (Welf. & Inst. Code, § 707, subd. (a)(1))1 and, following
an evidentiary hearing, the juvenile court ordered Petitioner transferred.
Petitioner filed the instant petition for writ of mandate challenging the
transfer order. We deny the petition.

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
*

opinion is certified for publication with the exception of parts II and IV.
All undesignated section references are to the Welfare and
1

Institutions Code.

1
 LEGAL BACKGROUND
“ ‘[W]hen a minor has been charged in the juvenile court with any
felony allegedly committed when he or she was 16 years of age or older’—as
[Petitioner] was—‘the prosecutor “may make a motion to transfer the minor
from juvenile court to a court of criminal jurisdiction.” ’ [Citation.] Upon
receiving a transfer motion, the juvenile court is required to ‘order the
probation officer to submit a report on the behavioral patterns and social
history of the minor.’ (§ 707, subd. (a)(1).) In addition to the transfer report,
the court may consider ‘any other relevant evidence that the [prosecutor] or
the minor may wish to submit.’ (§ 707, subd. (a)(3).) ‘The prosecution bears
the burden of establishing by a preponderance of the evidence [that] the
minor is not a suitable candidate for treatment under the juvenile court
system.’ [Citation.] ‘Whether the youth committed the act alleged in the
petition is not the issue in such a determination; the sole question is whether
he [or she] would be amenable to treatment in the event that he [or she] is
ultimately adjudged a ward of the court.’ ” (Kevin P. v. Superior Court (2020)
57 Cal.App.5th 173, 185–186, fn. omitted (Kevin P.).)
“In ruling on a transfer motion, the juvenile court must consider five
criteria under section 707: (1) ‘[t]he degree of criminal sophistication
exhibited by the minor’; (2) ‘[w]hether the minor can be rehabilitated prior to
the expiration of the juvenile court’s jurisdiction’; (3) ‘[t]he minor’s previous
delinquent history’; (4) the ‘[s]uccess of previous attempts by the juvenile
court to rehabilitate the minor’; and (5) ‘[t]he circumstances and gravity of
the offense alleged in the petition to have been committed by the minor.’
(§ 707, subd. (a)(3)(A)–(E); see [Cal. Rules of Court,2] rule 5.770(b)(2).) ‘The
weight to be given [to] each of these factors is within the court’s discretion’

2 All undesignated rule references are to the California Rules of Court.

2
[citation], as ‘[n]othing in section 707 indicates that the . . . court [is] required
to give equal weight to each of the five criteria or that it would necessarily be
an abuse of discretion to find that one criterion outweighed the other
criteria.’ ” (Kevin P., supra, 57 Cal.App.5th at p. 186.)
FACTUAL AND PROCEDURAL BACKGROUND
2016: Homicide and Initial Investigation
On October 17, 2016, the victim, K.K., left his home on his bicycle and
never returned. On November 2, his body was found in a shallow grave in a
wooded area. He had died from multiple stab wounds to his head and torso.
A search of K.K.’s social media and phone records revealed that on the
morning of October 17 he received a social media message from someone with
the username “D[.]70707.” On November 30, 2016, police interviewed
Petitioner. Petitioner initially claimed he had not used that social media
application in years and had not spoken to K.K. in some time, but after police
showed him the October 17 message, Petitioner admitted having exchanged
messages with K.K. that day under the username “D[.]70707.” Petitioner
said they had arranged to meet so Petitioner could sell K.K. drugs. Petitioner
denied any involvement in K.K.’s death.
Police also searched Petitioner’s home on November 30. They found
several notebooks in Petitioner’s room. The notebooks contained writings
about violence and Satan: for example, “im a satanic killer;” “your body fall as
you hear satans call;” “your blood up on the wall ill drag your body down the
fucking hall;” “Im gone aim for your neck;” “I just wanna fucking die;” “ill put
yo body in a grave;” “i fantasize about death thats how i unwind;” “I sliced his
neck []looked in his eyes told him i was the devil;” “devil got my soul.”3 Many

3 We quote verbatim from Petitioner’s writings.

3
of the writings rhymed and appeared to be rap lyrics. Some of the pages
included the victim’s first name.
2017–2018: Burglary and DJJ Commitment
Almost a year later, in September 2017, Petitioner was arrested for an
unrelated incident. Petitioner had broken into a home and pointed a knife at
a 17-year-old girl hiding in the bathroom. Petitioner was arrested trying to
flee the house. He admitted breaking into the house and admitted the knife
was his. He told police he was a former “Satanist” and committed the home
invasion because he had “ ‘snapped’ ” and “ ‘turned back to [his] sin.’ ” Police
searched Petitioner’s home again and found more notebooks containing
writings referring to violence and Satanism, including one page with
fingerprints in Petitioner’s blood.
In September 2017, a wardship petition was filed alleging Petitioner
committed burglary (Pen. Code, § 459), assault with a deadly weapon (id.,
§ 245, subd. (a)(1)), and other crimes.4 The juvenile court sustained the
burglary and assault allegations and, in March 2018, committed Petitioner to
the Division of Juvenile Justice (DJJ).5
2018: Continued Homicide Investigation
In July 2018, police learned that K.K.’s DNA was recovered from the
knife used by Petitioner in the 2017 burglary.
In September 2018, police searched Petitioner’s DJJ cell and found
more writings related to violence and Satanism, including: “I am the wicked I

Three psychologists examined Petitioner after a doubt regarding his
4

competency was raised. One found him incompetent; the other two found
him competent. Petitioner submitted these reports in the transfer hearing.
This court affirmed the disposition. (In re D.C. (Feb. 6, 2019,
5

A154357) [nonpub. opn.].)

4
am the goat I am the killa I will slit yo throught” and multiple repetitions of
“666.” The writings included two references to K.K.’s name.
Also in September 2018, police interviewed a friend of Petitioner’s who
told the police he saw Petitioner with what he thought was K.K.’s bicycle
soon after K.K. was reported missing.
In December 2018, Do.C., a former DJJ inmate who had been housed
near Petitioner, contacted the police after committing a robbery. Do.C. told
police Petitioner had confessed to murdering K.K. Do.C. provided details
about K.K.’s death that were not publicly known. According to Do.C.,
Petitioner met with K.K. to sell him marijuana and, when K.K. was
urinating, Petitioner attempted to cut his throat.6 Petitioner then stabbed
K.K. six or seven times, hit him in the head, and buried him in a grave that
Petitioner dug the day before. Do.C. also said Petitioner was scared because
police had the knife he used to stab K.K. Do.C. said Petitioner wanted to kill
again soon. Do.C. gave the police a notebook with Petitioner’s writings. The
writings again included references to Satan, violence, and K.K.’s name,
including: “I dont like worshiping satan but thats what happens when you
dance with the devil on a cold cell block;” “their going to take me to court very
soon and I might just conffess then slit my throught;” “666;” “I had this
reacuring dream were im laughing at a murder scene.”
2020: DJJ Discharge; Murder Petition; Transfer Hearing
In February 2020, over the district attorney’s opposition, DJJ granted
Petitioner discharge.
In March 2020, before Petitioner was discharged, the People filed a
juvenile petition alleging Petitioner, now 20 years old, murdered and robbed

6K.K.’s body was found with his pants partly pulled down and his penis
exposed through the opening in his boxers.

5
K.K. in 2016 (Pen. Code, §§ 187, subd. (a), 211). The petition specially
alleged Petitioner killed K.K. while lying in wait and in the commission of a
robbery (Pen. Code, § 190.2, subds. (a)(15) & (17)); personally used a deadly
and dangerous weapon (id., § 12022, subd. (b)(1)); and personally inflicted
great bodily injury during the robbery (id., § 12022.7, subd. (a)).
The People filed a motion to transfer Petitioner to a court of criminal
jurisdiction. Petitioner opposed transfer and requested a hearing to
determine whether the People established a prima facie case. The juvenile
court received a juvenile transfer of jurisdiction report from the probation
department (§ 707, subd. (a)(1)) and held a combined transfer and prima facie
hearing over multiple days in November and December 2020.7
Probation Report
The probation officer’s report recommended Petitioner be transferred.
It reviewed the five statutory factors relevant to the determination.
The report found Petitioner exhibited criminal sophistication by
successfully hiding the knife used in the crime and later using it in another
crime, attempting to conceal K.K.’s body by burying it in a secluded area, and
apparently planning the crime in advance. Other 16-year-old offenders with
similar histories “will not involve themselves in homicidal conduct.”
With respect to Petitioner’s likelihood of rehabilitation, the report
noted Petitioner was 20 years old and juvenile court jurisdiction could extend
to his 25th birthday. The report stated it was difficult to predict how he may
mature in the next five years.

7 In addition to the evidence set forth below, the investigating officer
testified to the circumstances of K.K.’s murder and the subsequent
investigation as recounted above.

6
 The report found Petitioner’s delinquent history included a 2014
wardship referral for battery involving a physical fight at school. Petitioner
also had “a pattern of delinquency” at school including inappropriate
language and behavior, fighting with students and staff, disrupting class,
threatening students, and theft, and had been suspended from school six
times. Petitioner admitted abusing alcohol, marijuana, and Xanax.
As for prior attempts at rehabilitation, the probation report stated
there had been no formal rehabilitation attempts before the alleged offenses.
Petitioner was referred to mediation after the 2014 battery, but he refused to
participate.
Finally, the report stated the circumstances and gravity of the alleged
offenses were serious compared to other homicides. The multiple stab
wounds demonstrated a degree of viciousness, and the report noted
Petitioner’s ability to hide the knife and dispose of K.K.’s bicycle.
Psychologist Anthony Urquiza
Psychologist Anthony Urquiza testified as an expert in the area of
transfer hearings. Urquiza also prepared a report on Petitioner which was
admitted at the hearing. He did not interview Petitioner, but he reviewed
various records including school records, probation reports, and DJJ records.
He did not review Petitioner’s notebooks, but he read reports describing and
quoting Petitioner’s writings.
Urquiza went through the five criteria and, based on his analysis of
them, opined that Petitioner should be transferred to adult court.8

8We recite Urquiza’s testimony as to the five criteria in greater detail
below (see post, part II.B.1).

7
 DJJ Parole Agent Tiffany Yee
DJJ parole agent Tiffany Yee supervised Petitioner from May 2019
until his discharge in February 2020. Before he was transferred to her unit,
Petitioner had issues including disruptive behavior and violence.
In November 2019, Yee recommended Petitioner’s discharge from DJJ.
Her recommendation report noted Petitioner’s risk assessment for
“Aggression/Violence” was high, he “struggled to refrain from aggressive
acts,” and he “continues to blame and rationalize his behavior in the
moment.” Her report also stated Petitioner was “able to process the situation
before reacting impulsively,” and has shown that he can “identify risky
behavior and develop solutions to help him stay away from engaging in
negative behavior.”
Yee testified she understood a youth to be rehabilitated when they
showed stability in their daily program by, for example, staying out of fights,
interacting appropriately with staff and peers, and completing treatment
groups. She believed Petitioner was rehabilitated.
DJJ Parole Agent Bianca Lopez
Petitioner presented Bianca Lopez, a DJJ parole agent, to testify about
DJJ programs and procedures. A youth committed to DJJ is first evaluated
during an intake process, in which DJJ reviews information from probation,
completes various assessments, and compiles the information into a report.
Based on the information gathered in this intake process, the youth is then
transferred to a programming unit and assigned a treatment team composed
of a parole agent, a youth counselor, education staff, and, if appropriate, a
mental health clinician. DJJ reassesses youths every 30 to 90 days.
A youth’s projected release date is determined by the commitment
offense. This date may be moved earlier if the youth achieves and maintains

8
a high behavior level. DJJ’s rehabilitative goal is to address bad behavior
and have the youth take responsibility for their actions. DJJ does not
determine whether a youth is rehabilitated, but rather whether the youth
has completed the intervention programs and reduced their overall risk.
Juvenile Court’s Ruling
After finding the People established a prima facie case, the juvenile
court considered the five statutory transfer criteria. With respect to the
degree of criminal sophistication, the court noted the attack was preplanned,
carried out in a secluded location, and involved multiple stab wounds.
Petitioner attempted to cover up the crime by burying the body and initially
lied to the police about his contacts with the victim. Petitioner successfully
concealed the knife from law enforcement and later used the same knife to
commit a residential burglary. The court found “most troubling” Petitioner’s
“continued attraction to violence” primarily demonstrated by his writings
before and after the homicide. The court concluded this factor weighed in
favor of transfer.
With respect to the likelihood of rehabilitation, the court found a DJJ
commitment would be available to Petitioner for approximately three and a
half years.9 The court concluded, “Given [Petitioner’s] mixed history at DJJ

9 “Under juvenile justice realignment legislation that went into effect
on September 30, 2020, a process to close DJJ and transfer responsibility for
youth wards to county governments will begin on July 1, 2021. (§ 736.5,
subd. (a), added by Stats. 2020, ch. 337, § 30.)” (Kevin P., supra, 57
Cal.App.5th at p. 179, fn. 2.) Pending this closure, “a court may commit a
ward who is otherwise eligible to be committed under existing law and in
whose case a motion to transfer the minor from juvenile court to a court of
criminal jurisdiction was filed.” (§ 736.5, subd. (c).) At the time of the
transfer order in Petitioner’s case, the date for DJJ’s closure had not been
determined and the juvenile court stated its belief that DJJ would remain

9
and his continued and long-term mental health issues and ongoing attraction
to violence, the Court believes that he could not be rehabilitated prior to
expiration of the juvenile court’s jurisdiction . . . .” This factor therefore
weighed in favor of transfer.
With respect to the previous delinquent history factor, the court noted
the 2014 battery referral. The court also considered Petitioner’s school
records from 2009 through 2017, which demonstrated “a pattern of negative
behaviors such as non-attendance, fighting, threatening and assaulting other
students, class disruption, defiance, harassment, and intimidation.” The
court discussed Petitioner’s “subsequent delinquent conduct” in the 2017
burglary and assault. The court concluded that Petitioner’s “past history of
explosive and aggressive behavior and his violent conduct in the subsequent
home invasion case” weighed in favor of transfer.
As for the prior attempts at rehabilitation factor, the court noted
Petitioner refused to participate in services after the 2014 battery and
received services for the 2017 burglary only after the homicide. The court
concluded that “the lack of services provided prior to the homicide would
favor retention here in juvenile court.”
With respect to the gravity of the offense, the court incorporated its
prior findings on the degree of criminal sophistication. The court found “this
was a pre-planned and vicious attack on the victim, intended to kill and take
the victim’s property, and that this criteri[on] supports a transfer to adult
court.”

open until 2024 or 2025. In May 2021, after the juvenile court’s order issued,
a statute was enacted directing DJJ’s closure in June 2023. (§ 736.5,
subd. (e) [enacted by Stats. 2021, ch. 18, § 10, eff. May 14, 2021].) No party
has suggested our consideration of this writ petition is impacted by the new
legislation.

10
 The court concluded, based on “the totality of the circumstances,” that
Petitioner would not be amenable to juvenile court treatment and ordered
him transferred to a court of criminal jurisdiction.
DISCUSSION
“Appellate review of a juvenile court’s ruling on a motion to transfer a
minor to criminal court is by a petition for an extraordinary writ.[10] (Rule
5.770(g).) We review such rulings for an abuse of discretion. [Citation.] The
court’s factual findings are reviewed for substantial evidence, and its legal
conclusions are reviewed de novo. [Citation.] A decision based on insufficient
evidence or the court’s ‘ “erroneous understanding of applicable law” ’ is
subject to reversal.” (Kevin P., supra, 57 Cal.App.5th at p. 187.)
I. “Previous Delinquent History”
Petitioner argues the “previous delinquent history” criterion is limited
to (1) conduct taking place before the alleged offense and (2) conduct resulting
in a delinquency petition. Therefore, Petitioner contends, the juvenile court’s
consideration of Petitioner’s 2017 burglary and the conduct documented in
his school records was improper. We disagree.
“ ‘As in any case involving statutory interpretation, our fundamental
task here is to determine the Legislature’s intent so as to effectuate the law’s
purpose.’ [Citation.] The well-established rules for performing this task
require us to begin by examining the statutory language, giving it a plain and

10 Petitioner timely filed his writ petition. (Rule 5.770(g) [petition
“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 transfer of
jurisdiction order”].) We exercised our discretion in favor of granting writ
review and issued an order to show cause, in part because the petition raised
an issue of first impression about the proper interpretation of section 707
that is likely to recur. (Hiona v. Superior Court (2020) 48 Cal.App.5th 866,
871.)

11
commonsense meaning. [Citation.] We do not, however, consider the
statutory language in isolation; rather, we look to the statute’s entire
substance in order to determine its scope and purposes. [Citation.] That is,
we construe the words in question in context, keeping in mind the statute’s
nature and obvious purposes. [Citation.] We must harmonize the statute’s
various parts by considering it in the context of the statutory framework as a
whole. [Citation.] If the statutory language is unambiguous, then its plain
meaning controls. If, however, the language supports more than one
reasonable construction, then we may look to extrinsic aids, including the
ostensible objects to be achieved and the legislative history.” (Los Angeles
County Metropolitan Transportation Authority v. Alameda Produce Market,
LLC (2011) 52 Cal.4th 1100, 1106–1107 (Los Angeles).)
With respect to this criterion, the statute provides as follows: “(i) The
minor’s previous delinquent history. [¶] (ii) When evaluating the criterion
specified in clause (i), the juvenile court may 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).)
The statutory language is ambiguous as to whether “previous” refers to
the time before the alleged offense or before the transfer decision. Petitioner
argues the meaning becomes clear when we consider the entire statute
because other criteria focus on the time of the offense; specifically, one
criterion includes consideration of “the minor’s age, maturity, intellectual
capacity, and physical, mental, and emotional health at the time of the alleged
offense” (§ 707, subd. (c)(3)(A)(ii), italics added), and another criterion is the
“circumstances and gravity of the offense alleged” (id., subd. (c)(3)(E)(i), italics

12
added). But the five criteria focus on different areas; that two refer to factors
existing at the time of the alleged offense does not mean the rest should also.
To the contrary, the statute’s express reference to the time of the alleged
offense in two instances suggests that where such a reference is omitted—
such as in the previous delinquent history criterion—there should be no such
limitation. (Los Angeles, supra, 52 Cal.4th at p. 1108 [“ ‘ “It is a settled rule
of statutory construction that where a statute, with reference to one subject
contains a given provision, the omission of such provision from a similar
statute concerning a related subject is significant to show that a different
legislative intent existed with reference to the different statutes.” ’ ”].)
Petitioner also points to People v. Balderas (1985) 41 Cal.3d 144, which
construed a statute providing for consideration of a capital defendant’s “prior
felony conviction[s]” for purposes of determining whether punishment should
be the death penalty or life imprisonment. (Id. at pp. 200–201.) The court
held the provision was “limited to those [convictions] entered before
commission of the capital crime” because it, like other statutes calling for
harsher penalties in such circumstances, had a “presumed rationale . . . that
an offender undeterred by his prior brushes with the law deserves more
severe criminal treatment.” (Id. at p. 201.) But transfer is not a punishment,
even if it has been so characterized. (See Ramona R. v. Superior Court (1985)
37 Cal.3d 802, 810 [transfer has been “characterized as ‘the worst
punishment the juvenile system is empowered to inflict’ ”].) Instead, “ ‘the
sole purpose of the transfer hearing . . . is to determine “whether [the] best
interest of the child and of society would be served by the retention of the
juvenile court authority over him or whether the juvenile, under all the
circumstances, should be transferred to be tried as an adult.” ’ ” (People v.
Chi Ko Wong (1976) 18 Cal.3d 698, 718 (Chi Ko Wong).) Whether a youth

13
was undeterred by “prior brushes with the law” is certainly relevant to this
determination, but equally relevant may be conduct occurring after the
alleged offense. (See Balderas, at p. 202 [holding a different provision of the
statute providing for consideration of violent criminal activity was not limited
to conduct before the capital offense and had the purpose of showing
“defendant’s propensity for violence,” italics omitted].)
The statutory language is also ambiguous as to whether “delinquent
history” and “delinquent behavior” refer to conduct resulting in a delinquency
petition or to any delinquent conduct. As Petitioner points out, section 601
and 602 petitions are referred to as delinquency petitions, to distinguish
them from section 300 dependency petitions. (In re W.B. (2012) 55 Cal.4th
30, 43 [“In the broadest sense, adjudications under section 300 are
‘dependency’ proceedings, and adjudications under sections 601 and 602 are
‘delinquency’ proceedings.”].) But we are not persuaded that this compels the
conclusion that “delinquent history” and “delinquent behavior,” for purposes
of section 707, refers only to conduct that led to a delinquency petition. (See
In re W.B., at p. 42 [“The term[] ‘delinquency’ . . . ha[s] been employed
somewhat loosely in various contexts.”].) We note that section 707 directs the
transfer report prepared by the probation officer to include the youth’s
“behavioral patterns” (§ 707, subd. (a)), a phrase which on its face is not
limited to behaviors resulting in delinquency petitions.
Because the statutory language is ambiguous, we turn to the legislative
history. The five criteria were added in 1975 and were materially identical to
the current criteria. (Stats. 1975, ch. 1266, §§ 3–4; Chi Ko Wong, supra,
18 Cal.3d at pp. 706–707, fn. 3.) In 2015, the criteria were amended to add
factors that may be considered by the juvenile court in evaluating each
criterion; these factors also have not materially changed. (Stats. 2015,

14
ch. 234, § 2.) The legislative history for both of these enactments is silent as
to the Legislature’s intent with respect to the meaning of “previous” or
“delinquent.” However, the legislative history indicates a general intent that
juvenile courts have broad discretion to consider all relevant evidence in
making the transfer decision.
We begin with Supreme Court cases on section 707 issued before the
1975 enactment of the five criteria. At that time, the statute authorized
transfer upon a finding that “ ‘the minor is not a fit and proper subject to be
dealt with under this chapter.’ ” (Jimmy H. v. Superior Court (1970) 3 Cal.3d
709, 714, quoting § 707 (Jimmy H.).) The Supreme Court acknowledged the
standard “lack[s] explicit definition,” but identified various relevant factors.
(Id. at pp. 714–716.) A subsequent case, in rejecting a challenge to the
statute as unconstitutionally vague, noted the factors previously identified by
the court and held, “Since proper operation of the Juvenile Court Law is
predicated on treating each minor as an individual [citation] any attempt to
explicate the standards with greater particularity appears not merely
unnecessary but undesirable as likely to set up mechanical categories which
the spirit of the law forbids.” (Donald L. v. Superior Court (1972) 7 Cal.3d
592, 601.)
It appears that the 1975 amendment was influenced by these then-
recent cases. First, the enacted criteria were quite similar to those identified
by the Supreme Court. (Compare Jimmy H., supra, 3 Cal.3d at pp. 714–716
[“[minor’s] degree of sophistication especially as the same may relate to
criminal activities,” “testimony of experts that the minor can be treated by
[juvenile] facilities . . . [or] that rehabilitation might require treatment
beyond the date of his mandatory discharge,” “the minor’s behavior pattern
including his past record, if any, of delinquency,” “the nature of the crime

15
allegedly committed [and] the circumstances and details surrounding its
commission”]; with § 707, subd. (a)(3) [“degree of criminal sophistication
exhibited by the minor,” “[w]hether the minor can be rehabilitated prior to
the expiration of the juvenile court’s jurisdiction,” “minor’s previous
delinquent history,” “[s]uccess of previous attempts by the juvenile court to
rehabilitate the minor,” “circumstances and gravity of the offense alleged”].)
In addition, as relevant here, “the legislature appears to have considered the
warning in Donald L. [, supra, 7 Cal.3d 592] that particularized standards
may create mechanical categories which the spirit of the law forbids and
appears to have avoided such mechanized treatment by requiring the judge to
consider all relevant evidence in the individual case before ordering a minor
unfit for juvenile treatment.” (Review of Selected 1975 California Legislation
(1976) 7 Pacific L.J. 237, 487–488.)
The legislative history of the 2015 amendment similarly indicates an
intent to maintain judicial discretion to consider all relevant evidence. Most
significantly, the factors for the five criteria added by the amendment were
expressly made nonexclusive: for each criterion, the statute provides that
“the juvenile court may give weight to any relevant factor, including, but not
limited to,” the identified factors. (§ 707, subd. (a)(3)(A)–(E), italics added.)
Committee reports underscore this intent, stating: “This bill adds
discretionary, non-exclusive considerations for the court to weigh in each of
the five existing fitness criteria.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, analysis of Sen. Bill No. 382 (2015–2016 Reg. Sess.) as amended
Jul. 8, 2015, p. 5, italics added.) The bill’s author stated: “ ‘It is critical that
judges have the most relevant information and full picture of an individual,
before they make the critical decision of which jurisdiction a juvenile offender
should be charged in.’ ” (Assem. Com. on Public Safety, 3d reading analysis

16
of Sen. Bill No. 382 (2015–2016 Reg. Sess.) as amended Jul. 8, 2015, pp. 4–5,
italics added.) Similarly, the Judicial Council supported the bill, stating it
“enhances judicial discretion . . . . Judges are free to use their discretion to
determine which factors are relevant to each of the five listed criteria and to
consider additional factors similar to those listed by SB 382.” (Assem. Com.
on Public Safety, analysis of Sen. Bill No. 382 (2015–2016 Reg. Sess.) as
amended June 15, 2015, p. 8, italics added.)
In sum, 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. Narrowly construing
the statutory language to prohibit the juvenile court from considering
relevant information would be contrary to this legislative intent.11
Petitioner’s remaining arguments do not alter our conclusion.
Petitioner contends “previous” would be superfluous unless it meant previous
to the alleged offense, because otherwise the Legislature could have simply
said “delinquent history.” (See In re J.W. (2002) 29 Cal.4th 200, 209
[principle of statutory construction “that every part of a statute serves a
purpose and that nothing is superfluous”].) To be sure, adding “previous” to
“history” is somewhat redundant. However, “the rule against interpretations
that make some parts of a statute surplusage is only a guide and will not be
applied if it would defeat legislative intent” (ibid.), as it would here.
Petitioner also points to the rule of lenity. “ ‘ “[The rule of lenity] applies
‘only if two reasonable interpretations of the statute stand in relative
equipoise.’ [Citation.]” [Citations.]’ [Citations.] The rule ‘has no application
where, “as here, a court ‘can fairly discern a contrary legislative intent.’ ” ’ ”

11Petitioner does not dispute that the challenged evidence was
relevant.

17
(People v. Cornett (2012) 53 Cal.4th 1261, 1271.) The legislative intent
here—to allow juvenile courts to consider all relevant evidence in making the
transfer decision—is clear and therefore neither the rule against surplusage
nor the rule of lenity apply.
Accordingly, the juvenile court did not err in considering Petitioner’s
2017 burglary or the behavior documented in his school records.
II. Substantial Evidence
Petitioner argues the trial court’s finding that Petitioner was not likely
to be rehabilitated before the expiration of juvenile court jurisdiction is not
supported by substantial evidence. We disagree.
A. Legal Standard
“The rehabilitation criterion addresses ‘[w]hether the minor can be
rehabilitated prior to the expiration of the juvenile court’s jurisdiction,’ and
section 707 identifies ‘the minor’s potential to grow and mature’ as a ‘relevant
factor’ to the evaluation. (§ 707, subd. (a)(3)(B)(i)–(ii).) A juvenile court can
retain jurisdiction over a minor committed to DJJ for the offense of murder
until the minor reaches age 25. (§§ 607, subd. (b), 707, subd. (b)(1), 1769,
subd. (b); [citation].)” (Kevin P., supra, 57 Cal.App.5th at p. 198.)
Three cases discussed by the parties are instructive on this criterion.
In J.N. v. Superior Court (2018) 23 Cal.App.5th 706 (J.N.), the minor was
vandalizing a rival gang’s territory with two other minors when they were
approached by an adult rival gang member and one of the other minors shot
the rival. (Id. at p. 712.) The juvenile court found the criminal
sophistication, previous delinquent history, and previous attempts at
rehabilitation criteria all weighed against transfer. (Id. at pp. 715–720.)
With respect to the rehabilitation factor, the probation report found the
rehabilitation factor weighed in favor of transfer without any analysis or

18
support, and “the prosecution did not present any expert testimony
concerning the programs available, the duration of any of the programs, or
whether attendance would rehabilitate J.N. before termination of the juvenile
court’s jurisdiction. There 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 pp. 721–722.) The Court
of Appeal held the finding that the rehabilitation criterion weighed in favor of
transfer was not supported by substantial evidence. (Id. at p. 722.)
In Kevin P., supra, 57 Cal.App.5th 173, “[t]he [trial] court determined
that the standard seven-year parole consideration period applicable to
juveniles committed to DJJ for murder established a minimum rehabilitation
period for Kevin, and it found that he was therefore unlikely to be
rehabilitated while it retained jurisdiction.” (Id. at p. 195.) The prosecution’s
only witness testifying to issues other than the underlying crime was the
probation officer who authored the transfer report, and the probation officer
testified her opinion that rehabilitation weighed in favor of transfer “was not
based on an assessment of Kevin’s particular rehabilitative needs,” but
rather “ ‘was based solely on the fact that this is a serious offense.’ ” (Id. at
pp. 184, 196.) The defense presented expert testimony that “Kevin had good
prospects of being rehabilitated in the juvenile system, based on evidence of
Kevin’s positive characteristics, lack of serious psychological issues,
performance in juvenile hall, and low risk of reoffense. The prosecution
offered no contrary expert testimony.” (Id. at p. 200.) The Court of Appeal
concluded the rehabilitation finding was not supported by substantial
evidence. (Ibid.)

19
 In C.S. v. Superior Court (2018) 29 Cal.App.5th 1009 (C.S.), the Court
of Appeal found substantial evidence supported the juvenile court’s finding
that the rehabilitation factor weighed in favor of transfer: “The record shows
that C.S. needed substantial programming to ensure he would not return to
the gang after being released from DJF, particularly in light of his failure to
admit gang membership and his failure to acknowledge responsibility for the
offense. The probation report expressed a specific concern about C.S.’s need
for gang programming and about C.S.’s need to process his childhood trauma.
The probation report also specified that . . . by the time of the transfer
hearing, C.S. had just under a year in which to actually participate in DJF
programs.” (Id. at p. 1032.)12
B. Urquiza’s Testimony
Because many of Petitioner’s arguments challenging the sufficiency of
the evidence relate to Urquiza’s testimony, we begin with a recitation of his
opinions followed by a discussion of expert testimony in transfer hearings.
1. Additional Background
Urquiza testified to his opinion on each of the five transfer criteria.
With respect to the degree of criminal sophistication, Urquiza opined that
Petitioner’s planning, digging the grave, possessing the knife, and arranging
to meet K.K. were signs of sophistication. Petitioner’s attempts to avoid
detection also indicated sophistication: burying K.K.’s body in a secluded
location, hiding the knife, and initially lying to the police about his use of the
social media account and association with K.K.
With respect to whether Petitioner could be rehabilitated prior to the
expiration of the juvenile court’s jurisdiction, Urquiza categorized delinquent

12 The Court of Appeal reversed the transfer order on other grounds.
(C.S., supra, 29 Cal.App.5th at p. 1035.)

20
youth as either “life-course-persistent or adolescent-limited.” He clarified
that the “life-course-persistent” category is “not a diagnosis . . . . It is a way
of describing youth who are both chronically involved in criminal activity
and, equally as important, relatively difficult to treat. The problems that
they have are fairly intractable.”13 Urquiza opined that “a lot of the qualities
of a [‘]life-course-persistent[’] youth were the qualities that [Petitioner] had in
his history,” such as “this long history of being aggressive and defiant,” and
then engaging in violent behavior. Urquiza testified that treatment for “life-
course-persistent” youth is “really difficult. They are highly resistant to
treatment. Because you’re not just changing a health problem, you’re not
just changing an issue with regard to substance abuse, or just bad decision
making. You’re really changing the way the person views the world, the
attitudes, the feelings that they have.”
Urquiza considered Petitioner’s performance at DJJ. Initially,
Petitioner was “consistently violent and aggressive and defiant.” Petitioner’s
behavior improved around May 2019, which was “a good prognostic sign.”
But his behavioral improvements in an environment “where there’s lots of
guards and lots of rules and people watching” did not necessarily mean he
was likely to be rehabilitated in the approximately four years remaining of
juvenile court jurisdiction. While DJJ had services to address certain
problems presented by Petitioner, including some mental health and
substance abuse problems, Urquiza opined DJJ was unlikely to successfully
treat Petitioner because he appeared to have an “entrenched” delinquency.
Urquiza concluded, “is it possible for him to be rehabilitated prior to the end

13 Urquiza also referred to this as a “characterological” problem. For
clarity, we will use the term “life-course-persistent” throughout.

21
of his 25th year? Certainly. But I think that is a difficult and unlikely
proposition.”
With respect to Petitioner’s previous delinquent history, Urquiza noted
that, although Petitioner had a limited number of arrests, his school records
revealed a long history of defiance, aggression, theft, and substance abuse.
This demonstrated “a chronic pattern of problem behavior”: “for well more
than a decade, he has consistently engaged in . . . aggressive, delinquent,
defiant behavior. Suddenly making a transition away from that is a really
difficult thing to do.”
As for previous attempts at juvenile court rehabilitation, Urquiza noted
that Petitioner refused to participate in mediation after his 2014 referral.
Finally, Urquiza opined the gravity of Petitioner’s alleged offense was
significant: a planned, unprovoked killing in which Petitioner acted alone.
2. Expert Testimony in Transfer Hearings
As an initial matter, we question the utility of substantial portions of
Urquiza’s testimony about criteria other than the rehabilitation criterion.
Evidence Code section 801, subdivision (a) limits expert testimony to matters
“sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.”14 “ ‘ “ ‘Where the [trier of fact] is just as competent as
the expert to consider and weigh the evidence and draw the necessary

14We acknowledge the Supreme Court has stated, “It is clear that the
very nature of the fitness hearing precludes imposition of strict evidentiary
standards. . . . Thus it has been said that ‘[t]here appear to be no limitations
upon the evidence that the court may consider at the remand or referral
hearing, other than the basic tests of relevancy and materiality to the issue
presented.’ ” (Chi Ko Wong, supra, 18 Cal.3d at pp. 717–718.) We need not
decide whether Evidence Code section 801 applies in transfer hearings
because even if it does not, its provisions are consistent with the
requirements of relevance and materiality.

22
conclusions, then the need for expert testimony evaporates.’ ” ’ ” (Nevarrez v.
San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th
102, 122; see also People v. Alcala (1992) 4 Cal.4th 742, 781 [expert testimony
unnecessary to evaluate witness’s claimed loss of memory where the trial
court could make availability determination “based on its own close
observation of [the witness’s] demeanor and responses”].) Urquiza’s opinions
regarding Petitioner’s criminal sophistication and the circumstances and
gravity of the offense were not beyond the common experience of the juvenile
court. (See Kevin P., supra, 57 Cal.App.5th at pp. 187–188, 190 [minor
presented expert opinion testimony about whether the gravity and
circumstances of the alleged offense criterion weighed for or against transfer
but did “not offer any authority for the proposition that expert testimony—or
any other evidence beyond that bearing on what happened during the
crime—is required to evaluate this criterion”].)
With respect to the rehabilitation criterion, courts have consistently
approved expert testimony in transfer hearings “on the issue of the
availability of treatment programs in the juvenile court system and the
amenability of the minor to those programs,” including whether
“ ‘rehabilitation might require treatment beyond the date of his mandatory
discharge.’ ” (J.N., supra, 23 Cal.App.5th at pp. 721–722; see also Chi Ko
Wong, supra, 18 Cal.3d at p. 717 [appropriate evidence at transfer hearing
includes “expert testimony on the minor’s amenability to treatment and
whether rehabilitation might require treatment beyond the time during
which he may be under the control of the court”]; Jimmy H., supra, 3 Cal.3d
at pp. 714–715 [appropriate evidence includes “testimony of experts that the
minor can be treated by [juvenile] facilities” and “expert[] testi[mony] that
rehabilitation might require treatment beyond the date of his mandatory

23
discharge”].) For example, in C.S., a psychologist testified about the minor’s
childhood history, mental health diagnoses, and conduct during a previous
DJJ commitment; relevant programs at DJJ; and his opinion as to whether
the minor could be rehabilitated within the time remaining under juvenile
court jurisdiction. (C.S., supra, 29 Cal.App.5th at pp. 1019–1020.)
Urquiza’s testimony regarding the categories “life-course-persistent”
and “adolescent limited” was not the type of testimony envisioned in J.N. and
Jimmy H. As Petitioner argues, Urquiza failed to establish the categories are
generally accepted among adolescent psychologists.15 (See Evid. Code, § 801,
subd. (b) [expert opinion must be “[b]ased on matter . . . that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the
subject to which his testimony relates”]; People v. Ruiz (1990) 222 Cal.App.3d
1241, 1243, 1246 [“there must be some showing that the material on which
the expert bases his or her opinion—here the profiles of the primary types of
pedophile—is reliable,” but “[t]here was no evidence that the scientific
community had developed any standard profile of a pedophile”].) Moreover,
Urquiza appeared to use the term “life-course-persistent” simply as a
shorthand for what he identified as the characteristics of a youth in that
category: a long history of aggressive, defiant behavior (with possibly other
problems like substance abuse or mental health issues) that becomes
“entrenched” and eventually turns to violent behavior. Placing a dubious
label on a set of identifiable characteristics easily understood by a lay person
is of little assistance to the juvenile court.

15Other than a reference to a 2018 article by Terrie E. Moffitt—which
was neither explained nor submitted into evidence—the record is silent as to
how the adolescent psychology community views the categories.

24
 In sum, while some of Urquiza’s testimony was relevant and material,
a substantial portion of it was not. “ ‘The expert witness is the only kind of
witness who is permitted to reflect, opine, and pontificate, in language as
conclusory as he [or she] may wish . . . . [¶] Once we recognize the expert
witness for what he [or she] is, an unusually privileged interloper, it becomes
apparent why we must limit just how far the interloping may go.’ ” (People v.
Johnson (1993) 19 Cal.App.4th 778, 789–790.)
C. Analysis
Despite our rejection of Urquiza’s “life-course-persistent” testimony,
Petitioner’s substantial evidence challenge to the juvenile court’s
rehabilitation finding fails.
First, Petitioner did not object to the testimony below. (See SCI
California Funeral Services, Inc. v. Five Bridges Foundation (2012) 203
Cal.App.4th 549, 564 [appellant forfeited objection that respondent’s expert
“employed a legally impermissible methodology” by failing to object at trial
and therefore depriving respondent of “the opportunity to meet that objection
by attempting to correct the alleged infirmity”].) Second, as noted above,
Urquiza’s use of the term “life-course-persistent” was effectively a way of
noting a group of characteristics that Petitioner demonstrably had: a history
of aggressive behavior that evolved into violent conduct. Third, and most
significantly, even if we ignore Petitioner’s forfeiture, Urquiza’s testimony
that Petitioner was a “life-course-persistent” delinquent was not the only
evidence in the record relevant to the rehabilitation criterion. “We consider
the entire record to determine whether substantial evidence supports the
juvenile court’s findings.” (In re Hailey T. (2012) 212 Cal.App.4th 139, 146.)
Indeed, the juvenile court itself identified the evidence underlying its
rehabilitation finding as Petitioner’s “mixed history at DJJ and his continued

25
and long-term mental health issues and ongoing attraction to violence.”
Substantial evidence supports each of these subsidiary findings.
Petitioner’s “mixed history at DJJ” is undisputed. Petitioner
emphasizes the evidence that his behavior improved after an initial period
and argues this demonstrates he was likely to be rehabilitated. The juvenile
court was entitled to discount Yee’s testimony that Petitioner was
rehabilitated, in light of Lopez’s testimony that DJJ did not determine
whether youths were rehabilitated. The juvenile court could also reasonably
credit Urquiza’s testimony that, particularly in light of Petitioner’s years of
aggressive and defiant conduct, his recent turnaround only demonstrated he
could perform well in a highly structured environment.
Petitioner does not dispute the juvenile court’s finding that he had
“long-term mental health issues.”
Finally, the juvenile court’s finding that Petitioner had an “ongoing
attraction to violence” was supported both by evidence of his years-long
aggressive conduct and by his violent writings.16 Petitioner challenges this
finding, arguing most of his writings were undated and written before
January 2019. The writings were recovered by police in 2016, 2017, and
2018. This—in addition to the evidence of Petitioner’s long history of
aggressive conduct—is sufficient to support the finding of an ongoing

16Petitioner challenges Urquiza’s testimony about Petitioner’s writings
because he reviewed only quotes and excerpts of the writings, not the original
writings themselves. Petitioner identifies no quotes or excerpts in the reports
reviewed by Urquiza that were erroneous or misleading, and therefore has
not established that Urquiza’s reliance on the reports rendered his testimony
unreliable. Moreover, the original writings were admitted into evidence and
reviewed by the juvenile court. In part III, post, we consider and reject
Petitioner’s challenge to the admissibility of his writings.

26
attraction to violence, even absent evidence of additional writings in 2019
and 2020.
Petitioner also argues there was insufficient evidence of the precise
services needed to rehabilitate Petitioner, the programming offered at DJJ,
and why Petitioner would not benefit from DJJ programming. A similar
argument was raised in C.S. (See C.S., supra, 29 Cal.App.5th at p. 1031
[youth challenged rehabilitation finding on the ground that “the district
attorney failed to ‘provide any details about available programs’ at [DJJ] and
whether those programs would rehabilitate him”].) Here, as in C.S., there
was ample evidence of Petitioner’s need for substantial programming in light
of his years-long record of aggressive behavior and his attraction to violence.
There was evidence of the programming available to Petitioner at DJJ:
Parole Agent Yee testified he would receive the same programming as he had
during his commitment for the 2017 burglary. The juvenile court could
reasonably find that, despite Petitioner’s behavioral improvements during his
time at DJJ, the likelihood of rehabilitation factor weighed in favor of
transfer. This case is easily distinguished from J.N. and Kevin P., where
little to no supporting evidence was presented.
In sum, there was sufficient evidence to support the juvenile court’s
finding that Petitioner was not likely to be rehabilitated before the expiration
of juvenile court jurisdiction.

27
III. Admission of Petitioner’s Writings
Petitioner argues the juvenile court erred in admitting his writings.
We reject the challenge.17
Many of the admitted writings rhyme and appear to be lyrics. We
accept, for purposes of this appeal, that the writings were rap lyrics, poetry,
or a similar expressive writing. Petitioner points to authority holding such
writings lack probative value: “Absent some meaningful method to determine
which lyrics represent real versus made up events, or some persuasive basis
to construe specific lyrics literally, the probative value of lyrics as evidence of
their literal truth is minimal.” (People v. Coneal (2019) 41 Cal.App.5th 951,
968 (Coneal); see also People v. Melendez (2016) 2 Cal.5th 1, 24 (Melendez)
[writing properly excluded where “it appears the words were merely rap
lyrics” and “[n]o reason appears to assume they relate actual events”].)
The probative value of evidence depends on the fact in dispute. (Evid.
Code, § 210 [“ ‘Relevant evidence’ means evidence . . . having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.”].) In a criminal trial or juvenile jurisdictional
hearing, the ultimate disputed fact is whether the defendant or minor
committed the alleged act. Such was the case in the authority relied on by
Petitioner, and the writings were therefore being offered as evidence of their
literal truth; in other words, that the things written about had in fact

17An evidentiary ruling “is not ordinarily subject to review by writ
[citation] and typically is reviewed for abuse of discretion on appeal.” (Aas v.
Superior Court (2000) 24 Cal.4th 627, 634.) However, because transfer
decisions are neither directly appealable nor reviewable on appeal from a
criminal judgment of conviction (rule 5.770(g); Chi Ko Wong, supra, 18 Cal.3d
at pp. 710–712), writ review of the challenged evidentiary ruling rendered in
the context of the transfer ruling appears appropriate. The People do not
contend otherwise.

28
happened. (Coneal, supra, 41 Cal.App.5th at p. 968 [in murder trial, “lyrics
describing or advocating violence [admitted] as evidence that the rapper in
fact committed and/or advocated such acts”]; Melendez, supra, 2 Cal.5th at
pp. 22–24 [in murder trial, lyrics by codefendant purportedly confessing to
the murder offered as evidence that codefendant in fact committed the
murder]; In re George T. (2004) 33 Cal.4th 620, 624 [in § 602 proceeding,
minor’s poem offered as evidence that minor made a criminal threat].)
In contrast, in a transfer hearing, “ ‘the sole question is whether [the
youth] would be amenable to treatment in the event that he [or she] is
ultimately adjudged a ward of the court.’ ” (Kevin P., supra, 57 Cal.App.5th
at p. 186.) Evidence of the youth’s conduct is relevant to this determination,
but so is evidence of the youth’s mental and emotional state and related
characteristics. (See § 707, subd. (a)(3) [criteria and factors include minor’s
“intellectual capacity,” “mental[] and emotional health at the time of the
alleged offense,” “impetuosity,” “potential to grow and mature,” “mental and
emotional development”].) Expressive writings, while generally not evidence
of their literal truth, may well be evidence of the writer’s mental and
emotional state. (See In re George T., supra, 33 Cal.4th at p. 638
[“ ‘Literature illuminates who “we” are: the repertory of selves we harbor
within, the countless feelings we experience but never express or perhaps
even acknowledge . . . .’ ”].)
The juvenile court so concluded here. The court did not admit the
writings as evidence of their literal truth, but rather as evidence of
Petitioner’s “mental state.”18 In its decision, the court relied on the writings

18Although trial counsel did not formally object to the writings, he did
express concern about them and the juvenile court construed the concern as
an objection and overruled it. The People do not argue Petitioner forfeited
the claim below by failing to object. Accordingly, we consider it on its merits.

29
as evidence of Petitioner’s “continued attraction to violence”: “Prior to the
homicide charge in front of the Court, the minor’s own writings show many
conversations about violence and killing people with knives and putting
bodies into graves;” “It also appears that these writings and thoughts of
violence continued on even after he was incarcerated at DJJ. A search of his
cell was conducted at DJJ, and writings, drawings, and journals were
confiscated by investigators which showed continued thoughts of violence,
gang involvement, and specific references to the victim.” While violent lyrics
written over multiple years may be inadmissible to prove the writer
committed the acts described in the lyrics, the writings may properly be
admitted in a transfer hearing as evidence that the writer has an ongoing
interest in and attraction to violence. The admission of the writings for this
purpose was not an abuse of discretion.
IV. Ineffective Assistance of Counsel
Petitioner argues his trial counsel provided ineffective assistance by
failing to object to the delay in filing the underlying petition and to seek
dismissal of either the petition or the transfer motion. We conclude that, on
this record, Petitioner has failed to establish the claim.19

19We assume, without deciding, that ineffective assistance of counsel
claims are available on mandamus review.

30
 A. Additional Background
As set forth in the factual background, ante, as of December 2018,
police had found K.K.’s DNA on Petitioner’s knife, learned that Petitioner’s
friend saw Petitioner on what he thought was K.K.’s bicycle shortly after
K.K. went missing, and heard Do.C.’s statement that Petitioner confessed to
the murder. The delinquency petition was not filed until more than a year
later, in March 2020.
During argument on the transfer petition, Petitioner’s counsel argued:
“It doesn’t seem quite right, Your Honor, that in a situation in which a very
important consideration should be amenability to treatment, that the
prosecution is arguing that there isn’t enough time now when we learned in
the evidence yesterday that by August and September 2018 there was no
reason to doubt that [Petitioner] had committed murder on [K.K.], and when,
by December 24th and 25th of 2018, [Do.C.] had added his information . . . .
[¶] So what happens to that now two years? It’s been two years since the
conclusion was that [Petitioner] was responsible for the murder. The
indications are, He’s in DJJ. He’s staying until 2022. We’re in no rush.
Well, that kind of flies in the face of then saying delaying charging
[Petitioner] with this offense until he’s on the eve of his release from DJJ
shouldn’t play into this in some way and in some fashion. [¶] [Petitioner] has,
and we will address that issue in — whether it’s here in the juvenile court or
the adult court at a later time with regard to that pre-charge delay. But for
these purposes it just seems somehow twisted that this wasn’t brought at a
time that was more germane with regard to what efforts there were in terms
of amenability for treatment.”

31
 B. Analysis
“The due process right to effective assistance of counsel extends to
minors in juvenile delinquency proceedings.” (In re M.V. (2014) 225
Cal.App.4th 1495, 1528.) “ ‘In assessing claims of ineffective assistance of
trial counsel, we consider whether counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms and
whether the defendant suffered prejudice to a reasonable probability, that is,
a probability sufficient to undermine confidence in the outcome. [Citations.]
A reviewing court will indulge in a presumption that counsel’s performance
fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy.
Defendant thus bears the burden of establishing constitutionally inadequate
assistance of counsel. [Citations.] If the record on appeal sheds no light on
why counsel acted or failed to act in the manner challenged, an appellate
claim of ineffective assistance of counsel must be rejected unless counsel was
asked for an explanation and failed to provide one, or there simply could be
no satisfactory explanation. [Citation.] Otherwise, the claim is more
appropriately raised in a petition for writ of habeas corpus.’ ” (People v.
Carter (2005) 36 Cal.4th 1114, 1189 (Carter).)
“ ‘[D]elay in prosecution that occurs before the accused is arrested or
the complaint is filed may constitute a denial of the right to a fair trial and to
due process of law under the state and federal Constitutions. A defendant
seeking to dismiss a charge on this ground must demonstrate prejudice
arising from the delay. The prosecution may offer justification for the delay,
and the court considering a motion to dismiss balances the harm to the
defendant against the justification for the delay.’ ” (People v. Nelson (2008)
43 Cal.4th 1242, 1250.) “Purposeful delay to gain an advantage is totally

32
unjustified, and a relatively weak showing of prejudice would suffice to tip
the scales towards finding a due process violation. If the delay was merely
negligent, a greater showing of prejudice would be required to establish a due
process violation.” (Id. at p. 1256.) “A court may not find negligence by
second-guessing how the state allocates its resources or how law enforcement
agencies could have investigated a given case. “ . . . [T]he difficulty in
allocating scarce prosecutorial resources (as opposed to clearly intentional or
negligent conduct) [is] a valid justification for delay.’ ” (Id. at pp. 1256–1257.)
We are troubled by the implication arising from the record that,
although the People had ample evidence by late 2018, they waited to file a
petition until Petitioner was scheduled for release from DJJ in early 2020.
As Petitioner argues, the amount of time a youth will be subject to DJJ
jurisdiction can be a significant factor in a transfer decision. Thus,
prosecutors should make efforts to promptly file petitions alleging a minor
has committed a transferrable offense.
However, the current record is insufficient to establish an ineffective
assistance of counsel claim. Trial counsel may have made a tactical decision
not to raise the claim at the transfer hearing. For example, counsel may
have concluded that the court would not find dismissing the transfer motion
an appropriate remedy for unreasonable delay, and that counsel could seek
dismissal of the underlying petition or criminal charges at a subsequent time.
Counsel may also have believed the juvenile court would have found the
delay until December 2018 justified by the ongoing investigation, and would
have further found no significant prejudice with respect to the transfer
motion because a little over a year more of juvenile court jurisdiction would
not have changed the court’s decision, especially because the favorable
evidence about Petitioner’s improved behavior at DJJ was only available

33
because of the delay. Where, as here, the record is insufficient to establish an
ineffective assistance of counsel claim, the appropriate avenue to develop the
record is to file a habeas petition with sufficient allegations to state a prima
facie case. (See Carter, supra, 36 Cal.4th at p. 1189; see also In re Steele
(2004) 32 Cal.4th 682, 692 [habeas petition should be initiated in superior
court]; In re Hillery (1962) 202 Cal.App.2d 293, 294 [same].)
DISPOSITION
The petition for writ of mandate is denied.

34
 _________________________
Simons, J.

WE CONCUR:

_________________________
Jackson, P. J.

_________________________
Needham, J.

A162937

35
D.C. v. Superior Court (A162937)

Trial Judge: Hon. Ken J. Gnoss

Trial Court: Sonoma County

Attorneys:

Sarah Javaheri for Petitioner.

Rob Bonta, Attorney General, Jeffrey M. Laurence, Senior
Assistant Attorney General, Amit Kurlekar, Deputy Attorney General,
Jalem Z. Peguero, Deputy Attorney General for Real Party in Interest.

36