Filed 3/17/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re E.P., a Person Coming 

Under the Juvenile Court Law.

2d Juv. No. B319738

(Super. Ct. No. 21JV00138)

(Santa Barbara County)

THE PEOPLE,

 Plaintiff and Respondent,

v.

E.P.,

 Defendant and Appellant.

The Greek philosopher Heraclitus observed that “nothing 

endures but change.” The California legislature must have had 

Heraclitus in mind when it changed a variety of laws in the penal 

and juvenile codes.

 Here we consider changes in the law concerning fitness 

hearings to determine whether offenses committed by juveniles 

belong in juvenile or adult court.

A juvenile wardship petition alleged against E.P. alleged 

two counts of murder (Pen. Code, § 187, subd. (a)), two counts of 
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attempted murder (id., §§ 664, 187, subd. (a)) and one count of

street terrorism (id., § 186.22, subd. (a).)

The juvenile court held a fitness hearing pursuant to 

Welfare and Institutions Code1 section 707. The court ordered 

the case transferred to criminal court. Since the hearing, section 

707 has been amended. (Stats. 2022, ch. 330, § 1.) We reverse

and remand for a new fitness hearing pursuant to section 707 as 

amended. The Attorney General agrees.

FACTS

E.P. was 17 years old at the time of the incident. He was a 

member of the Carpas street gang. The gang’s territory is in 

Carpinteria. Two of E.P.’s family members, Angel V., and 

Oscar T., are also members of the Carpas gang. E.P.’s uncle, who 

lives across the street from E.P., is a Carpas gang leader.

Assault of March 6, 2020

On March 6, 2020, members of the Eastside Santa Barbara 

street gang (Eastside gang) assaulted members of the Carpas 

gang at a market in Goleta. The Eastside gang used blunt 

instruments in the assault.

Later that night Eastside gang members, using the same 

blunt instruments, chased some Carpas gang members into a 

market in Carpinteria. Video from the market showed E.P. as 

one of the victims and R.R. as one of the assailants.

Shooting on January 3, 2021

On the evening of January 3, 2021, M.S. was with three 

other Eastside gang members, including R.R., on Liberty Street 

in Eastside territory. M.S. saw a blue jeep go by. The driver was 

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated.
3

wearing a cap with a “C” on it, indicating membership in the 

Carpas gang.

Shortly thereafter, M.S. noticed two men approaching on 

foot from the direction where the jeep had gone. Both men were 

wearing caps with a “C” on them. One of the men produced a gun 

and shot four Eastside members, killing two and wounding M.S.

and R.R.

A woman walking on Liberty Street heard gunshots and 

saw two men run by her. One of the men was holding a gun “that

got bigger toward the bottom.” The description matched a gun 

with an extended magazine.

Investigation

The police determined that Angel V. owned the blue jeep 

used in the shooting. They also recovered the gun used in the 

shooting and traced it back to Angel V. Angel V.’s social media 

showed him holding what appeared to be the gun used in the 

shooting with an extended magazine. A gun with an extended 

magazine would not be easy to conceal.

E.P.’s social media showed him in gang attire. It also 

showed him wearing a bullet proof vest. E.P.’s iCloud account 

contained the following verse: “This, my consequences as a young 

hog, I was right there when the neighborhood call, through the 

gun play and the violent fist for all. Even with a black eye, boy 

had to stand tall.” A Snapchat image saved on E.P.’s cell phone 

said, “Shout out my shooters.”

E.P.’s Interview

Detective Andre Miller interviewed E.P. after he was 

arrested. E.P. initially stated that he was at home on the 

evening of January 3, 2021. He said Angel V. and Oscar T. were 
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also home. E.P. repeatedly denied he was involved in the 

shooting.

Later E.P. admitted that he drove the jeep on January 3, 

2021, and that Angel V. and Oscar T. were with him. They told 

him to drive in circles, but they did not tell him what was about 

to happen. He saw a group of Eastsiders as he drove down 

Liberty Street. He expected fighting but he did not know 

Angel V. and Oscar T. had a gun with them. He admitted that 

he knew Angel V. owned guns. He claimed he learned of the 

shooting when someone told him after he got home.

E.P. said he did things for his family out of loyalty. He said 

if he got into a situation, the first person he would call is 

Angel V., the second would be his uncle.

Ruling

E.P. did not request that the juvenile court find whether 

the prosecution established a prima facie case.

In ruling that E.P. was not fit to be treated under the 

juvenile law, the court considered the five factors listed in former 

section 707, subdivision (a)(3)(A)-(E). 

The juvenile court found: 

First, E.P. exhibited criminal sophistication. The offenses 

involved planning and purpose. E.P. was almost 18 years old at

the time. He is intellectually mature and thinks before he acts. 

He was not under the influence of drugs.

Second, E.P. can be rehabilitated prior to the expiration of 

the juvenile court’s jurisdiction. E.P. is mature and is at the end 

of the intellectual scale. Given the time remaining, he can be 

rehabilitated.

Third, E.P. has no serious delinquent history. His 

delinquent history is limited to some acting out at school.
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 Fourth, E.P. has not needed previous attempts at 

rehabilitation. 

 Fifth, as to the gravity of the offense alleged in the petition, 

every murder is a serious offense. Two young lives were ended, 

and others were injured. The court stated: “I don’t believe [E.P.’s] 

statement that he did not know what was going to happen. What 

do you assume is going to happen if you drive two people to a 

rival gang’s central location[?]” 

 The juvenile court stated that some factors weigh in favor 

of retaining juvenile court jurisdiction and other factors weigh in 

favor of a transfer to criminal court. Given the totality of the 

circumstances, however, the court concluded the matter should 

be transferred to criminal court. 

DISCUSSION 

I. 

Prima Facie Case 

 E.P. contends the prosecution did not establish a prima 

facie case of murder or attempted murder. 

 California Rules of Court, rule 5.766 governs the transfer of 

jurisdiction from juvenile to criminal court. Subdivision (c) of the 

rule states: “On the child’s motion, the court must determine 

whether a prima facie showing has been made that the offense 

alleged is an offense that makes the child subject to transfer 

. . . .” 

 Here E.P. has forfeited the claim because he did not make 

the required motion. E.P. argues that his counsel provided 

ineffective assistance by failing to make the motion. But the 

juvenile court’s comments made it clear that it believed the 

prosecution established a prima facie case. E.P. admitted he 

drove Angel V. and Oscar T. into the Eastside gang’s territory. 
6

The only question was whether he knew that there would be a 

shooting. E.P. claimed he thought there would only be a fight. 

The juvenile court stated it did not believe him. To prevail on a 

claim of ineffective assistance of counsel the defendant must 

show, but for counsel’s error, there is a reasonable probability the 

defendant would have obtained a more favorable result. 

(In re Wilson (1992) 3 Cal.4th 945, 950.) E.P. has failed to make 

that showing.

In any event, there is sufficient evidence of a prima facie 

case for murder. The standard is reasonable and probable cause. 

(Rene C. v. Superior Court (2006) 138 Cal.App.4th 1, 4, fn. 2.) To 

meet the standard, there is no need to prove guilt; a “‘“strong 

suspicion of . . . guilt”’” is all that is required. (Ibid.) That 

standard has been more than met here.

First, E.P. knew he was driving Angel V. and Oscar T. into 

Eastside territory to confront members of the gang. E.P., 

Angel V. and Oscar T. were more than members of the same 

gang, they were members of the same family. E.P. was 

personally humiliated in the assault on March 6, 2020, when 

Eastside gang members chased Carpas gang members into a

market. There is every reason to believe that E.P. knew from the 

beginning that Angel V. and Oscar T. intended to shoot Eastside 

gang members.

Second, E.P. drove by four Eastside gang members 

including R.R., who had been involved in chasing E.P. into a 

market in Carpinteria. When E.P. dropped off Angel V. and 

Oscar T., he would not expect that two Carpas gang members 

were going to take on four Eastside gang members in Eastside 

territory using only their fists. E.P. knew Angel V. owned guns.
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 Third, shortly after the shooting, a woman saw Angel V. 

carrying a handgun with an extended clip. It is reasonable to 

conclude that such a gun would not be easy to conceal and 

that E.P. was aware that Angel V. was armed when they 

departed Carpinteria for Eastside territory. 

 Finally, E.P. bragged in verse about his participation in the 

shooting. He said, “I was right there when the neighborhood call, 

through the gun play and the violent fist for all.” It is reasonable 

to conclude that E.P. was not bragging about being an unwitting 

dupe in the shooting of rival gang members. 

II. 

Transfer to Criminal Court 

Prior Statute 

 At the time of the fitness hearing, section 707 required the 

prosecution to prove by a preponderance of the evidence that the 

case should be transferred to a criminal court. (Cal. Rules of 

Court, rule 5.770(a).) In making that decision the juvenile court 

was required to consider five criteria: 1) the degree of criminal 

sophistication, 2) whether the minor, can be rehabilitated prior to 

the expiration of the juvenile court’s jurisdiction, 3) the minor’s 

previous delinquent history, 4) the success of previous attempts 

by the juvenile court to rehabilitate the minor and 5) the 

circumstances and gravity of the offense alleged in the petition to 

have been committed by the minor. (Former § 707, subd. 

(a)(3)(A)-(E).) If the juvenile court ordered transfer, it was

required to state the basis for its decision in the order (Ibid.) 

Here, in ordering transfer, the juvenile court determined that the 

degree of criminal sophistication and the circumstances and 

gravity of the alleged offenses outweigh positive findings on the 

other factors. 
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Amended Statute

Effective January 1, 2023, section 707, subdivision (a)(3) 

was amended in part as follows: “In order to find that the minor 

should be transferred to a court of criminal jurisdiction, the court 

shall find by clear and convincing evidence that the minor is not 

amenable to rehabilitation while under the jurisdiction of the 

juvenile court. In making its decision, the court shall consider 

the criteria specified in subparagraphs (A) to (E), inclusive. If the 

court orders a transfer of jurisdiction, the court shall recite the 

basis for its decision in an order entered upon the minutes, which 

shall include the reasons supporting the court’s finding that the 

minor is not amenable to rehabilitation while under the 

jurisdiction of the juvenile court.” (Stats. 2022, ch. 330, § 1.) The 

amendment changes section 707 in a number of ways.

First, in the previous version of section 707, the

prosecution’s burden was by a preponderance of the evidence. 

Under the amendment the prosecution’s burden is increased to 

clear and convincing evidence.

Second, under the previous version whether the minor is 

amenable to rehabilitation while under the jurisdiction of the 

juvenile court was one of five factors for the court to consider in 

determining whether the case should be transferred to criminal 

court. The amendment states it as the ultimate question for the 

court to decide. Nevertheless, in deciding that question, the 

amendment requires the court to consider the same five factors 

listed in the previous version.

Finally, the previous version required that if the juvenile

court orders a transfer, it shall recite the basis for its decision in 

the order. The amended statute requires the court to not only 

recite the basis for its decision, but also the reasons supporting 
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the court’s finding that the minor is not amenable to 

rehabilitation while under the jurisdiction of the juvenile court.

The parties agree that because the case is not final, E.P. is 

entitled to the benefit of the amended statute. (In re Estrada 

(1965) 63 Cal.2d 740.) The parties disagree, however, on whether 

the matter should be remanded to the juvenile court with 

instructions to deny the transfer petition, or whether the 

prosecution is entitled to a new hearing on the question of 

transfer.

Under the amended statute the ultimate finding is whether 

the minor is amenable to rehabilitation while under the 

jurisdiction of the juvenile court. E.P. points out that the juvenile

court found he is amenable to rehabilitation while under the 

jurisdiction of the juvenile court. He further points out that at 

the time of the shooting the prosecution’s burden was only to a 

preponderance of the evidence.

But at the time of E.P.’s fitness hearing the amenability of 

the minor to rehabilitation was a factor separate from the other 

four factors, and the juvenile court treated it as such. The court 

cited only E.P.’s maturity and his intellect as favoring its finding 

of amenability.

The amended section 707 requires the juvenile court to 

consider all five factors together in determining whether the 

minor is amenable to rehabilitation. Under the amended statute, 

like the previous version, the court has the discretion to conclude 

that one or more of the five factors predominate so as to 

determine the result, even though some or all of the other factors 

might point to a different result. The prosecution is entitled to a 

new fitness hearing so that the court can determine, considering 

all five factors, whether E.P. is amenable to treatment. Nothing 
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in this opinion shall be construed to indicate how the court 

should rule.2 

DISPOSITION 

 The matter is reversed and remanded for a new fitness 

hearing to be conducted pursuant to section 707 as amended. 

 CERTIFIED FOR PUBLICATION. 

GILBERT, P. J. 

We concur: 

YEGAN, J. 

BALTODANO, J. 

2 E.P.’s request for a prima facie hearing is denied. 
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Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________

Laini Millar Melnick, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Michael C. Keller and John Yang, Deputy 

Attorneys General, for Plaintiff and Respondent.