Filed 2/16/24 In re T.J. CA4/2
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re T.J., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E081349
Plaintiff and Respondent,
(Super.Ct.No. J268952)
v.
OPINION
T.J.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda,
Judge. Reversed.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Brendon
Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
1
In January 2017, T.J., who was 17 years old, was alleged to come within the
jurisdiction of the juvenile court (Welf. & Inst. Code, § 602, subd. (a)), due to
murdering (Pen. Code, § 187, subd. (a))1 Rocky Holmes (the victim) in January 2016.
In 2017, the juvenile court transferred the case to the criminal court. (Welf. & Inst.
Code, § 707, subd. (a)(1).) In 2023, the criminal court transferred the case back to the
juvenile court, and the juvenile court again transferred it to the criminal court. (Welf. &
Inst. Code, § 707, subd. (a)(1).) T.J. contends the juvenile court erred by returning the
case to the criminal court. We reverse.
FACTS
A. BACKGROUND
T.J. was born in March 1999. T.J. is a member of the Alley Boys street gang. In
2011, when T.J. was 12 years old, he admitted a misdemeanor battery allegation
(§ 242), which was settled outside of court.2 At 14 years old, T.J. admitted an
allegation of fighting (§ 415, subd. (1)), which was again settled out of court.
Approximately three months later, the juvenile court sustained a first-degree residential
burglary (§ 459) allegation against T.J., declared him a ward of the court, and granted
him probation. Less than three months after that, the juvenile court sustained an
allegation that T.J. acted as an accessory after the fact (§ 32) to a robbery. The juvenile
court ordered T.J. to serve 50 days in juvenile hall. In June 2014, when T.J. was 15
1 All subsequent citations will be to the Penal Code unless otherwise indicated.
2 We infer that T.J. participated in an early intervention program, such as youth
court, although it is unclear from the record. (Welf. & Inst. Code, §§ 601.5 & 654.)
2
years old, the juvenile court sustained an allegation that T.J. had possessed a firearm (§
29610) and ordered him to serve 120 days in juvenile hall.
B. MURDER ALLEGATION
The following has been alleged against T.J.: In January 2016, T.J., Michion
Darby (Darby)3, and possibly a third person formed a plan to rob the victim, who sold
marijuana. T.J. or a coparticipant called the victim in order to schedule a meeting.
When the victim arrived, T.J. asked, “ ‘Where’s the weed at?’ The victim responded,
‘Where’s the money at?’ It was then [that T.J.] shot him.” T.J. shot the victim’s right
temple, abdomen, and right hip. The victim died at the hospital.
C. 2017 TRANSFER TO CRIMINAL COURT
In January 2017, the San Bernardino County District Attorney filed a petition
against T.J. in juvenile court, alleging murder, robbery, and other offenses. In February
2017, the juvenile court, with the Honorable Pamela King presiding, ordered the case
transferred to the criminal court. Applying the preponderance of the evidence standard,
the juvenile court concluded, “The choices made by [T.J.] have consistently reflected
his commitment to pursuing a life of crime, such that he is not amenable to the care,
treatment and training programs of the juvenile system.” The juvenile court dismissed
the petition. T.J. was transferred to the county jail.
3 People v. Darby (Sept. 7, 2018, D073858) [nonpub. opn.].
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D. REINSTATEMENT OF THE JUVENILE PETITION
Effective in 2023, the Legislature changed the law regarding transferring juvenile
cases to criminal court. The change in the law requires juvenile courts to apply the clear
and convincing evidence standard when determining whether a minor is amenable to
rehabilitation in a juvenile facility. (Assem. Bill No. 2361 (2021-2022 Reg. Sess.),
ch. 1012, § 1; Welf. & Inst. Code, § 707, subd. (a)(3).)
In January 2023, the criminal court concluded that jeopardy had not yet attached
in T.J.’s case.4 Therefore, the criminal court transferred T.J.’s case back to the juvenile
court, and the juvenile petition from 2017 was reinstated so the clear and convincing
standard of proof could be applied to the transfer determination. At that point, T.J. was
23 years old and had been housed in the county jail for six years.
The probation department wrote a report to the juvenile court concerning
whether T.J. would be amenable to treatment in juvenile hall if his case were to remain
in the juvenile court and the allegations against him were found true. The probation
officer wrote, “Should [T.J.] be convicted of murder, he would only be under the
Juvenile Court’s jurisdiction until the age of 25, which is a little more than one year
from now, as [T.J.] will turn 24 years old in six days.” Further, the probation officer
reported, “[T.J.] has been terrorizing the county jail staff and inmates over the past six
4 A motion to transfer a case between juvenile and criminal court must occur
before jeopardy has attached. (Welf. & Inst. Code, §§ 707, subd. (a)(1) & 707.01,
subd. (a)(3)(A).) It is unclear what, if anything, happened in the criminal case between
2017 and 2023 because we have been provided with only the juvenile court record, not
the criminal court record.
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years. [T.J.] is fully indoctrinated and engaged in the life and politics of the adult
county jail. He has been exposed to various types of adult criminals, participated in
assaults, and initiated a riot.” The probation officer recommended that the court follow
the 2017 recommendation and again transfer the case to criminal court.
The juvenile court, with the Honorable Charles J. Umeda presiding, issued a
written ruling transferring the case back to the criminal court. In the ruling, the juvenile
court wrote, “In light of the seriousness of the charged offenses as committed the court
determines that a commitment to a [secure youth treatment facility], Gateway to Arise[,]
would be a possible option if [T.J.’s] case were to remain in the juvenile justice system.
[T.J.] is currently twenty[-]four (24) years old. The Juvenile Court could retain
jurisdiction over him until he is twenty-five (25) years old. The youth baseline term
would be seven (7) years.
“Because of [T.J.’s] current age, the court believes that [T.J.’s] potential to grow
and mature is limited. Furthermore, [T.J.]’s incarceration for approximately six years,
acts of violence in county jail and lack of treatment while housed at county jail leads the
court to conclude that he would require extensive rehabilitation over a long period of
time for him to realistically be considered rehabilitated sufficiently for safe reentry into
the community. At this time, if [T.J.] remains within the jurisdiction of the juvenile
court, he would be committed to a secured youth treatment facility (SYTF) for less than
a year before reaching his age of commitment. The court finds the evidence is clear and
convincing that [T.J.] cannot be rehabilitated prior to the expiration of the juvenile
court’s jurisdiction.”
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DISCUSSION
T.J. contends the juvenile court incorrectly believed it would have jurisdiction
over T.J. only until he reached the age of 25 years. The People concede the juvenile
court erred, but assert the error was harmless.
T.J. and the People are correct that the juvenile court erred in calculating the
expiration of its jurisdiction. A juvenile court retains jurisdiction over a murderer until
the murderer “attains 25 years of age, or two years from the date of commitment to a
secure youth treatment facility . . . whichever occurs later, . . .” (Welf. & Inst. Code,
§ 607, subd. (c) [eff. through Sept. 12, 2023]5; see also Welf. & Inst. Code, § 1769,
subds. (b) & (d)(2).) Thus, the juvenile court would have had jurisdiction over T.J. until
two years after committing him to a juvenile facility, if the allegations were found true.6
We examine whether the juvenile court’s error was harmless. The People apply
the standard found in People v. Watson (1956) 46 Cal.2d 818: Whether “it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” (Id. at p. 36) T.J. notes that the Watson standard
does not require a finding that it is “ ‘more likely than not’ ” the result would have been
different absent the error; rather, the standard requires “ ‘merely a reasonable chance,
5 We use the version of the statute that was in effect at the time the juvenile
court ruled and the parties briefed the issue in this court, as opposed to the version that
became effective on September 13, 2023.
6 The People contend that T.J. forfeited his contention by failing to raise it in the
juvenile court. T.J. asserts that if he forfeited the issue, then he received ineffective
assistance of counsel. We choose to address the merits of the issue.
6
more than an abstract possibility,’ ” that the result would have been different absent the
error. (People v. Hardy (2021) 65 Cal.App.5th 312, 329-330, italics omitted.)
“In order to find that the minor should be transferred to a court of criminal
jurisdiction, the [juvenile] court shall find by clear and convincing evidence that the
minor is not amenable to rehabilitation while under the jurisdiction of the juvenile
court.” (Welf. & Inst. Code, § 707, subd. (a)(3).) There is a statutorily enumerated list
of factors for the juvenile court to consider in making its decision. (Welf. & Inst. Code,
§ 707, subd. (a)(3)(A)-(E).)
At oral argument in this court, T.J. asserted the law pertaining to fitness hearings
(§ 707) changed in January 2024 and the case should be remanded for a hearing under
the amended statute. The 2024 amendments to section 707 mandated that the juvenile
court consider certain factors at a transfer hearing; previously, the statute was
permissive, i.e., “may give weight to any relevant factor” was changed to “shall give
weight to any relevant factor.” The amendments also expanded the criteria within the
“criminal sophistication” factor: “[T]he minor’s involvement in the child welfare or
foster care system; and the status of the minor as a victim of human trafficking, sexual
abuse, or sexual battery.” (§ 707, subd. (a)(3)(A)(iii); Sen. Bill No. 545 (2023-2024
Reg. Sess.) § 1.)
We focus on the factor of T.J.’s status as a victim of sexual abuse. The probation
report reflects that T.J. “denie[d] being a victim of any type of abuse.” The probation
report was written in 2017 when T.J. was 17 years old. In August 2016, T.J. requested
that his “aunt,” J.N., be added to his visitor list in juvenile hall. Staff witnessed J.N.
7
“intimately kissing [T.J.] It was discovered she was his girlfriend and she was in her
thirties.” J.N. repeatedly visited T.J. and sent him letters, writing, “ ‘I miss you’ and ‘I
love you’ ” on the envelopes. T.J. identified J.N. as his paternal aunt, while T.J.’s sister
identified J.N. as a maternal aunt. When staff discovered the romantic relationship, “a
Child Abuse Report was submitted to CFS.” The victim was killed in January 2016; it
is unclear if T.J. and J.N.’s romantic relationship began before or after the murder.
There is nothing in the juvenile court’s ruling addressing the sexual interaction
between J.N., who was in her thirties, and T.J., who was a minor. Given the juvenile
court’s misunderstanding of how long it could have jurisdiction over T.J. combined with
the new sexual abuse factor that must be considered, there is a reasonable chance the
juvenile court would issue a different ruling.7 Accordingly, we will reverse so the
juvenile court has the opportunity to reconsider the transfer motion under the amended
law and with a clear understanding of its jurisdiction. (See People v. Martinez (2017)
10 Cal.App.5th 686, 718 [an unqualified reversal sets the motion at large in the juvenile
court].)
7 We express no opinion on whether the transfer motion should be granted or
denied.
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DISPOSITION
The order is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
CODRINGTON
J.
MENETREZ
J.
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