1

Filed 3/1/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re MIGUEL R., a Person Coming 

Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

MIGUEL R.,

Defendant and Appellant.

E082250

(Super.Ct.No. J279577)

OPINION

APPEAL from the Superior Court of San Bernardino County. Tony Raphael, 

Judge. Affirmed.

Gerald J. Miller, 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, Collette C. Cavalier and 

Maxine Hart, Deputy Attorneys General, for Plaintiff and Respondent.
2

This is Miguel R.’s second appeal from an order transferring him from the juvenile 

court to criminal court under Welfare and Institutions Code section 707 (unlabeled 

statutory references are to this code). In 2019, a juvenile wardship petition alleged that 

Miguel committed murder and other offenses when he was 17 years old. In 2022, the 

juvenile court granted the People’s motion under section 707 to transfer Miguel to 

criminal court. Miguel appealed from the order, and we affirmed in an unpublished 

opinion. (In re Miguel R. (Sept. 22, 2022, E078528) [nonpub. opn.].) The juvenile court 

accordingly transferred the matter to criminal court in January 2023, after the remittitur 

issued.

Effective January 1, 2023, Assembly Bill No. 2361 (2021-2022 Reg. Sess.) 

(Assembly Bill 2361) amended section 707 in several ways, including by raising the

standard of proof to clear and convincing evidence on the issue of whether a juvenile 

should be transferred. (In re E.P. (2023) 89 Cal.App.5th 409, 416 (E.P.).) The criminal 

court transferred the matter back to the juvenile court to address the statutory changes. 

The juvenile court found by clear and convincing evidence that Miguel is “not amenable 

to the care, treatment and training programs available through the juvenile court system” 

and again ordered him transferred to criminal court. Miguel appeals from that order, 

arguing that the juvenile court misapplied the statutory changes and that the prosecution 

did not carry its burden under the clear and convincing evidence standard. (§ 801, 

subd. (a).) While the appeal was pending, Senate Bill No. 545 (2023-2024 Reg. Sess.) 

(Senate Bill 545) further amended section 707.
3

We affirm. We publish this opinion to clarify certain points about application of 

the recent amendments to section 707, including that (1) the statute does not require that 

any one factor be given greater weight than others in determining whether the minor is 

amenable to rehabilitation while under the jurisdiction of the juvenile court, and 

(2) although the current version of section 707 expressly requires consideration of the 

minor’s history of involvement in the child welfare or foster care system, human 

trafficking, sexual abuse, or sexual battery, and prior versions of the statute did not 

contain that express requirement, evidence of any such history was nonetheless relevant 

under prior versions of the statute.

BACKGROUND

A. The Alleged Offenses1

One night in January 2019, Steve N. and his wife, Keren N., were walking near 

their home when they saw three male teenagers dressed in black pants and hoodies 

approaching. Steve told Keren to get behind him and placed himself between her and the 

teenagers. The teens stopped in front of Steve and Keren and blocked their path. One 

teenager, later identified as Miguel, pointed a gun at Steve’s head. Keren heard the 

gunman and one of the other two say, “‘Hey, motherfucker, what you got?’” Steve 

lunged toward the gunman, and a struggle ensued. Keren saw a flash, heard Steve yell, 

1

 We take the facts concerning the offenses from our prior opinion, which 

summarized the description of the offenses contained in the probation report. (In re 

M.R., supra, E078528.)
4

and realized that Steve had been shot. Steve was taken to the hospital, where he died 

during surgery.

An officer searching the area shortly after the shooting stopped three teenagers 

matching the suspects’ description, two of whom were detained, while the third fled on 

foot. Other officers searching in the area where the third suspect had fled found a black 

backpack that contained a loaded .38-caliber revolver with one spent casing under the 

hammer, a black T-shirt, a black sweatshirt, a cell phone, and other items. In a nearby 

parking lot, officers found a wallet containing Miguel’s California identification card, 

and a few feet away they found six additional bullets matching the rounds in the revolver.

After initially providing officers with false information, both of the two detained 

coparticipants made statements incriminating Miguel, identified the backpack containing 

the gun as Miguel’s, and identified Miguel as the shooter in photo lineups. Miguel was 

arrested at school the following morning. A search of Miguel’s home revealed shoes and 

other clothing matching those worn by the shooter, as well as a box of .38-caliber 

ammunition matching that found in the revolver.

Text messages found on Miguel’s cell phone and statements by his mother 

revealed that Miguel had texted his mother shortly after the shooting, saying he was 

hiding from the police. He could see police nearby and a helicopter overhead. Miguel’s 

mother told him to stay hidden. She drove to find him and saw police and blocked 

streets. The text messages included four maps showing locations where Miguel was 

hiding, and their communications continued over the course of almost four hours before 

Miguel’s mother was able to pick him up. Miguel’s mother identified the backpack, 
5

wallet, and identification found by police as belonging to Miguel, but she denied having 

seen the gun or ammunition before.

Surveillance video obtained by police showed Miguel, wearing a backpack 

matching that found by police, boarding a bus heading towards Ontario with his two 

coparticipants a few hours before the shooting. All three were wearing black hooded 

sweatshirts, dark jeans, and black shoes. They can be seen sitting together and talking 

before exiting the bus together. Other surveillance videos show the three youths at 

various locations in the vicinity before and after the shooting.

B. The Petition and the Initial Transfer Proceeding

In January 2019, a juvenile wardship petition (§ 602, subd. (a)) was filed, alleging 

that when Miguel was 17 years old he committed one count of murder (Pen. Code, § 187, 

subd. (a)), one count of second degree robbery (Pen. Code, § 211), and one count of 

attempted second degree robbery (Pen. Code, §§ 211 & 664).

The prosecution immediately moved to transfer Miguel to criminal court. In 

April 2019, the probation department submitted a report pursuant to subdivision (a)(1) of 

section 707, recommending transfer.

The transfer hearing began in April 2021. The sole prosecution witness was 

Cynthia Diaz, the probation officer who prepared the report. Diaz explained her 

methodology, the interviews that she conducted, and the records that she reviewed in 

preparing the report. The report described Miguel’s personal history and included 

statements from Miguel and his mother. Miguel’s parents had been together for 30 years 

and had six children. Miguel lived with his parents and two younger siblings, aged 10 
6

and 11. Miguel said that he got along well with everyone, including his parents and 

siblings, and his mother agreed. Before he was arrested, Miguel was a senior in high 

school with grades ranging from several A’s to one D. Miguel was not involved in a 

gang. Miguel denied using drugs and said that he did not like alcohol, which he tried 

when he was 14 years old. Miguel had not been a victim of sexual or physical abuse.

The report recommended transfer to criminal court on the basis of four of the five 

statutory criteria: the degree of criminal sophistication exhibited by the minor, whether 

the minor can be rehabilitated before expiration of the juvenile court’s jurisdiction, the 

success of previous attempts by the juvenile court to rehabilitate the minor, and the 

circumstances and gravity of the offense. The report determined that the fifth criterion—

the minor’s delinquency history—weighed in favor of finding that Miguel was suitable 

for rehabilitation under the juvenile court’s jurisdiction.

Diaz reviewed a number of the detention behavior summaries documenting 

Miguel’s conduct in juvenile hall over the two years since she had prepared her report. 

Miguel was involved in eight incidents described as “code reds,” all but one of which 

involved assaultive behavior on other minors. Although Miguel had obtained his high 

school diploma and enrolled in online community college courses, Diaz testified that 

Miguel was currently “suspended until further notice” from participating in the college 

program for having accessed unauthorized websites, and he had previously been 

suspended for a semester because of a plagiarism incident. On the basis of her review of 

Miguel’s detention behavior summaries, Diaz continued to believe that Miguel was not 

amenable to treatment by juvenile services and should be transferred to adult court.
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In December 2021, Shannon Johnson, Psy.D., a staff psychologist at Patton State 

Hospital, testified on Miguel’s behalf. Johnson met with Miguel in July and August for a 

total of about three and one-half hours and submitted a psychological evaluation report 

and a risk assessment report.

Johnson testified that Miguel had demonstrated insight and expressed regret and 

remorse for the impact of his behavior on his family and on the victim’s family, and 

Johnson believed that Miguel’s contrition was honest and genuine. She testified that 

Miguel had made progress in his rehabilitation, as evidenced by his ability to view his 

detention as an opportunity to recreate himself and to consider how he would like his life 

to be in the future. Regarding her risk assessment evaluation, Johnson opined that 

Miguel was unlikely to seek out violence and that his strong family support mitigated his 

risk of reoffending, although if Miguel were subjected to violent conduct by someone, he 

was likely to defend himself. She believed that transferring Miguel to an adult 

incarceration setting would be destabilizing and have a negative impact on his 

functioning and eventual reintegration into the community. When asked if Miguel would 

present a low risk of reoffending or engaging in violence if he were treated in a juvenile 

facility, Johnson assessed Miguel’s risk as “moderate” rather than “low.”

On cross-examination, Johnson acknowledged that Miguel had continued to 

engage in violent behavior during his detention, but she described that behavior as largely 

“situational” and related to his incarceration. Johnson conceded that Miguel’s ongoing 

use of aggression to manage conflict did increase his risk of reoffending and that he is 

likely to respond with violence if he is challenged or approached in an aggressive way.
8

Johnson was also asked during cross-examination about an incident that occurred 

in October 2021. A staff member had redirected Miguel to take it easy on the other team 

during a soccer tournament, and Miguel responded: “‘You are telling me to chill out[?] 

You know I’m a murderer on the set.’” When questioned about his response, Miguel 

said, “‘I’m a murderer. I kill people. So what?’” Johnson acknowledged that the 

statement was not something that Miguel would have said during their meetings, and she 

stated that if he had said that to her, it would have changed her opinion.2 When asked if 

the statement demonstrated that Miguel lacked remorse and empathy, Johnson said that 

she could not tell without knowing more about the “situational factors” and 

circumstances in which the incident occurred. She described ways in which the remark 

may have been mere “posturing” or an expression of “hopelessness.”

After Johnson’s testimony, the prosecution offered to recall Diaz as a rebuttal 

witness to testify regarding the detention behavior summary that reported Miguel’s 

October 2021 statements and also to establish that Miguel was again not enrolled in 

college classes that semester. Both counsel agreed to submit on the document containing 

the October 2021 statements and stipulated to the fact that Miguel was not attending 

online college classes that semester, so Diaz was not recalled. Miguel submitted 10 

character reference letters, including one written in Spanish and not translated. Some of 

2

 The court overruled defense counsel’s objections to the line of questioning, 

explaining that it would not consider Miguel’s statement for its truth but would allow the 

question as a hypothetical regarding Johnson’s opinion: If Miguel had made such 

statements, how would that impact her evaluation, recommendation, and diagnosis?
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the letters’ authors had known Miguel since he was a young child. The letters described 

Miguel as smart, good, respectful, well-behaved, and polite.

C. The First Ruling and Appeal

In 2022, the juvenile court granted the People’s motion to transfer Miguel to 

criminal court. Miguel appealed from the order, arguing that it should be reversed 

because the juvenile court improperly relied on the evidence concerning the 

October 2021 incident. (In re Miguel R., supra, E078528.) He argued that “absent any 

evidence as to the ‘tone’ or ‘context’ of the remarks, they are ‘worthless as an indication 

of [Miguel’s] purported state of mind.’” (In re Miguel R., supra, E078528.) We rejected 

the arguments and affirmed in an unpublished opinion. (In re Miguel R., supra, 

E078528.)

After the remittitur issued, the juvenile court transferred the matter to criminal 

court in January 2023. The criminal court transferred the matter back to the juvenile 

court to address recent amendments to section 707 under Assembly Bill 2361.

D. The Second Transfer Proceeding

The second transfer hearing was held in August 2023, when Miguel was 21 years 

old. The parties stipulated that the court could take judicial notice of all of the evidence 

from the initial proceeding. The prosecution introduced two documents prepared by the 

probation department in April 2023: (1) a court memo prepared by probation officer 

Miguel Ramirez-Gamboa addressing Miguel’s conduct while housed in county jail, and 

(2) an Assembly Bill 2361 transfer memo prepared by probation officer Paul Vargas. 
10

Three probation officers testified for the prosecution: Diaz, Vargas, and Shannon Kim. 

No witnesses testified on behalf of Miguel.

In preparation for the hearing, Diaz reviewed the 2019 probation report that she 

had authored and the 2023 transfer memo prepared by Vargas. Diaz understood the new 

standard for transferring minors to criminal court. Diaz’s opinion about whether Miguel 

could be rehabilitated by the juvenile justice system remained unchanged: She did not 

“believe he’d be appropriate to remain in juvenile hall.” Diaz based her opinion on the 

fact that Miguel was almost 22 years old and juvenile jurisdiction would end when he 

turned 25. She explained that given the severity of the offenses and the sophistication 

involved, Miguel “would not have enough time remaining to be rehabilitated in the 

juvenile system.”

Vargas testified that he never directly supervised Miguel. In preparing the 

April 2023 transfer memo, Vargas reviewed Diaz’s 2019 probation report, the police 

report concerning the alleged offenses, and Miguel’s juvenile delinquency history. 

Vargas also spoke with Kim about the ARISE program, which is the secure youth

treatment facility in San Bernardino County.

Vargas opined that Miguel could not be rehabilitated by the juvenile justice 

system. Vargas based his opinion on the “severity of the crime, [Miguel’s] active role in 

it, the sophistication, as well as the limited time that he has under the juvenile 

jurisdiction.” Vargas explained that Miguel would age out of the juvenile system at 25 

and thus would have about three and one-half years remaining in juvenile jurisdiction, 
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which was not sufficient time to rehabilitate. Vargas’s supervisor agreed with Vargas’s 

analysis.

Kim worked in the field supervision unit of the ARISE program. She reviewed 

the reports prepared by Diaz and Vargas and likewise opined that Miguel could not be 

rehabilitated under juvenile court jurisdiction. Kim considered the factors relevant to 

qualification for the ARISE program, including the severity of the crime, Miguel’s 

criminal history, whether treatment or rehabilitative programs previously had been 

offered and the status of any prior programs, and whether the treatment offered in the 

ARISE program would benefit Miguel.

E. The Ruling

In August 2023, the juvenile court issued a detailed ruling and found “by clear and 

convincing evidence that the youth is not amenable to the care, treatment and training 

programs available through the juvenile court system under the statutory criteria,” and the 

court accordingly ordered Miguel transferred to criminal court. The court adopted its 

description of the offenses and various findings from its initial ruling in January 2022, as 

modified by the new clear and convincing evidence standard of proof, and it addressed 

each of the five statutory criteria in section 707, subdivision (a)(3) (§ 707, subd. (a)(3)).

The court found that the following factors weighed in favor of transferring Miguel 

to criminal court: the degree of criminal sophistication, the success of previous attempts 

by the juvenile court to rehabilitate the minor, and the circumstances and gravity of the 

offenses. The court found that the prosecution had not carried its burden of proving that 
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Miguel’s delinquency history weighed in favor of transferring him or that he could not 

“be rehabilitated prior to the expiration of the juvenile court’s jurisdiction.”

With respect to the degree of criminal sophistication, the court adopted its initial 

ruling, as modified by the clear and convincing evidence standard, and found that Miguel 

“possesse[d] a higher level of criminal sophistication” because Miguel armed himself, 

participated in a preplanned armed robbery that was inherently dangerous and showed 

indifference to human life, and “willfully [shot] the victim for his failure to comply.” 

The court also found that Miguel’s conduct after the shooting exhibited “a higher level of 

criminal sophistication” in that he fled, attempted to conceal his involvement by changing 

his clothing and appearance, and then lied to police about his involvement.

As for whether Miguel “can be rehabilitated prior to the expiration of the juvenile 

court’s jurisdiction” (§ 707, subd. (a)(3)(B)(i) (§ 707(a)(3)(B)(i)), the court found that the 

evidence was “simply insufficient for the Court to draw a conclusion as to whether or not 

the youth can be rehabilitated.” The court noted that for this criterion it was evaluating 

whether Miguel could be rehabilitated “within the time available.” The court described 

evidence showing that Miguel could be rehabilitated within the time remaining, such as 

Miguel’s behavior in county jail, to which he was moved after the initial transfer hearing. 

But the court also noted that Miguel’s detention period in juvenile hall, including the 

statements Miguel made in October 2021 about being a murderer, showed that “despite 

having received rehabilitative services, [Miguel would] still be engaging in negative and 

callous behaviors.” The court also expressed concern that the remaining available 
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juvenile jurisdiction was not a sufficient period for Miguel to be rehabilitated in the 

ARISE program.

With respect to Miguel’s “previous delinquent history” (§ 707, subd. (a)(3)(C)(i)),

the court found that Miguel had a single petition in 2016 alleging two nonviolent felony 

counts. Because that history was minimal and “not aggravated,” it weighed in favor of 

denying the transfer motion.

Regarding the “[s]uccess of previous attempts by the juvenile court to rehabilitate” 

Miguel (§ 707, subd. (a)(3)(D)(i)), the court found that Miguel had been provided with 

the entire spectrum of services, including probation, community service, wraparound 

services, gang intervention classes, house arrest, and a six-month out-of-home placement 

that included counseling. Miguel did not take probation or “the services received 

seriously and made no effort to modify his behavior.”

With respect to “[t]he circumstances and gravity of the offense alleged” (§ 707, 

subd. (a)(3)(E)(i)), the court found: Miguel “engaged in a highly dangerous activity that 

he had to have known would result in harm to another person. Yet he not only willingly 

engaged in the dangerous activity, but he was seemingly committed to completing it at all 

costs. This conduct resulted in the death of [Steve]. [Miguel] inflicted the greatest injury 

on a person that can be inflicted. He stole a person’s life. The consequences are 

irreparable. [Steve] is dead and he shouldn’t be. There is no amount of restitution or 

good will that can change that or adequately compensate [Steve’s] family. [¶] There are 

no mitigating factors related to the circumstances and gravity of the offense. As such, the 
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factors related to this criteria weigh heavily in favor of a finding that the minor should be 

transferred to adult court.”

DISCUSSION

Miguel argues that we should reverse the most recent transfer order because 

(1) the juvenile court misapplied recent amendments to section 707, and (2) the evidence 

was insufficient to support the juvenile court’s finding that he “was not amenable to 

rehabilitation in the juvenile court.” We are not persuaded.

A. Legal Framework

Section 707 sets forth the procedures for transferring a minor from juvenile court 

to criminal court. It provides that whenever a minor aged 16 years or older is alleged to 

have committed a felony, the prosecutor may move “to transfer the minor from juvenile 

court to a court of criminal jurisdiction.” (§ 707, subd. (a)(1).) The prosecution bears the 

burden of proving that the minor should be transferred. (Cal. Rules of Court, 

rule 5.770(a).)

The Legislature amended section 707 in 2023 and 2024. Effective 

January 1, 2023, Assembly Bill 2361 amended section 707(a)(3) by adding the following 

italicized language: “Following submission and consideration of the report, and of any 

other relevant evidence that the petitioner or the minor may wish to submit, the juvenile 

court shall decide whether the minor should be transferred to a court of criminal 

jurisdiction. 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 
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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.” (§ 707(a)(3), italics added.)

The five statutory criteria listed in subparagraphs (A) through (E) of 

section 707(a)(3) were not amended by Assembly Bill 2361. Those criteria are (1) “the 

degree of criminal sophistication exhibited by the minor” (§ 707, subd. (a)(3)(A)(i)), 

(2) “[w]hether the minor can be rehabilitated prior to the expiration of the juvenile court’s 

jurisdiction” (§ 707(a)(3)(B)(i)), (3) “[t]he minor’s previous delinquent history” (§ 707, 

subd. (a)(3)(C)(i)), (4) “[s]uccess of previous attempts by the juvenile court to rehabilitate 

the minor” (§ 707, subd. (a)(3)(D)(i)), 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)(E)(i)). The statute sets forth a nonexhaustive list of relevant factors for the 

court to consider with respect to each of the five criteria. (§ 707, subd. (a)(3)(A)(ii), 

(B)(ii), (C)(ii), (D)(ii), (E)(ii).)

Effective January 1, 2024, Senate Bill 545 amended section 707 to require that 

with respect to each of those five criteria the juvenile court “shall give weight to any 

relevant factor,” including the specific factors listed as relevant to each criterion. (§ 707, 

subd. (a)(3)(A)(ii), (B)(ii), (C)(ii), (D)(ii), (E)(ii).) The previous version of the statute 

made consideration of those factors discretionary, not mandatory. (Former § 707, 

subd. (a)(3)(A)(ii), (B)(ii), (C)(ii), (D)(ii), (E)(ii).) With respect to the degree of criminal 
16

sophistication, Senate Bill 545 also added new mandatory factors for the court to 

consider: whether the minor has had any involvement in the child welfare or foster care 

system and whether the minor has been “a victim of human trafficking, sexual abuse, or 

sexual battery.” (§ 707, subd. (a)(3)(A)(ii).)

We review the juvenile court’s ruling on a transfer motion for abuse

of discretion. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 680.) “The 

abuse of discretion standard is not a unified standard; the deference it calls for varies 

according to the aspect of a trial court’s ruling under review. The trial court’s findings of 

fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, 

and its application of the law to the facts is reversible only if arbitrary and capricious.” 

(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.) The juvenile court’s 

findings with respect to each of section 707’s five criteria are findings of fact reviewed 

for substantial evidence. (Jones, at pp. 682-683.) In conducting substantial evidence 

review, we draw all reasonable inferences in support of the court’s findings. (People v. 

Cardenas (2020) 53 Cal.App.5th 102, 119, fn. 11 (Cardenas).)

Likewise, we review for substantial evidence the juvenile court’s ultimate finding 

“that the minor is not amenable to rehabilitation while under the jurisdiction of the 

juvenile court.” (§ 707(a)(3).) Because the juvenile court must make that finding by 

clear and convincing evidence, we “determine whether the record, viewed as a whole, 

contains substantial evidence from which a reasonable trier of fact could have made the 

finding of high probability demanded by” the clear and convincing evidence standard. 

(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)
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B. Assembly Bill 2361

Miguel argues that the juvenile court’s ultimate determination that Miguel is “not 

amenable to rehabilitation while under the jurisdiction of the juvenile court” (§ 707(a)(3)) 

is incompatible with the court’s finding under the second criterion that the People failed 

to produce sufficient evidence that Miguel could not “be rehabilitated prior to the 

expiration of the juvenile court’s jurisdiction” (§ 707(a)(3)(B)(i)). He argues that 

Assembly Bill 2361’s amendments to section 707 “make clear that the youth’s 

amenability to rehabilitation constitutes the focus of and the single most important factor 

in determining whether to grant the requested transfer.” (Italics added.) The People 

counter that Miguel “incorrectly conflates the ultimate amenability finding with the 

second factor, which is primarily concerned with time.” We agree with the People’s 

interpretation.

“In interpreting a statute, our primary goal ‘“is to determine the Legislature’s 

intent so as to effectuate the law’s purpose.”’ [Citation.] ‘“Because the statutory 

language is generally the most reliable indicator of that intent, we look first at the words 

themselves, giving them their usual and ordinary meaning.”’” (People v. Mendoza

(2023) 88 Cal.App.5th 287, 294.) “‘“If the statutory language is unambiguous, then its 

plain meaning controls.”’ [Citation.] We ‘avoid “interpretations that render any

language surplusage.”’” (Ibid.)

Section 707(a)(3) (as amended by Assembly Bill 2361) mandates that the juvenile 

court “shall consider the criteria specified in subparagraphs (A) to (E), inclusive” in 

determining whether “the minor is not amenable to rehabilitation while under the 
18

jurisdiction of the juvenile court.” Thus, according to the statute’s plain language, the 

court is required to consider each of the five listed criteria in determining whether the 

prosecution has carried its burden of proof to transfer a juvenile to criminal court. 

(§ 707(a)(3).) “Whether the minor can be rehabilitated prior to the expiration of the 

juvenile court’s jurisdiction” is the second of the five listed criteria. (§ 707(a)(3)(B)(i).) 

The statute does not direct the juvenile court to afford any greater weight to that criterion. 

(§ 707(a)(3).) Rather, the statute expressly requires the court to consider all five criteria 

in making its determination, but the statute says nothing about the relative weight to be 

given to any of the criteria. (§ 707(a)(3).) The statutory language accordingly does not 

support Miguel’s interpretation that the statute elevates the second criterion to be “the 

single most important factor in determining whether to grant the requested transfer.” 

(Italics omitted.)

Moreover, the ultimate determination of whether “the minor is not amenable to 

rehabilitation while under the jurisdiction of the juvenile court” (§ 707(a)(3)) is not the 

same as the second criterion, which calls for consideration of “[w]hether the minor can be 

rehabilitated prior to the expiration of the juvenile court’s jurisdiction” 

(§ 707(a)(3)(B)(i)). Assembly Bill 2361 did not make any amendments to the five 

criteria. “‘[W]hen the Legislature amends a statute without altering portions of the 

provision that have previously been judicially construed, the Legislature is presumed to 

have been aware of and to have acquiesced in the previous judicial construction.’” (City 

and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1915.) As

courts have explained, the focus of the second criterion is whether there is enough time to 
19

rehabilitate the minor while the minor is still eligible to remain under juvenile court

jurisdiction. (J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 721; see also Kevin P. v. 

Superior (2020) 57 Cal.App.5th 173, 200, fn. 13 [in “evaluating the amount of time that 

rehabilitation in the juvenile system will ultimately require” for § 707(a)(3)(B)(i), the 

court should consider predisposition progress made toward rehabilitation].) Under the 

second criterion, the prosecution accordingly “bears the burden of producing evidence of 

insufficient time to rehabilitate the minor.” (J.N., at p. 721.)

In contrast, the ultimate finding that the juvenile court must make under 

section 707(a)(3) concerns a global assessment of the minor’s suitability to rehabilitation 

within the juvenile court system, and not just a comparison of the time needed with the 

time remaining. (§ 707(a)(3).) The prosecution bears the burden of proving by clear and 

convincing evidence that the minor is “not amenable to rehabilitation while under the 

jurisdiction of the juvenile court.” (§ 707(a)(3).) As explained by In re S.S. (2023) 89 

Cal.App.5th 1277 (S.S.), “[t]his language resembles earlier versions of section 707, 

which, from the enactment of the Juvenile Court Law in 1961 until the approval of 

Proposition 57, the Public Safety and Rehabilitation Act of 2016, required juvenile courts 

to analyze whether minors are ‘amenable to the care, treatment, and training program 

available through the facilities of the juvenile court.’” (Id. at p. 1286.) 

Section 707(a)(3)’s focus on the minor’s amenability to rehabilitation under the juvenile 

court’s jurisdiction thus requires the court to consider not only time but also other reasons 

why the minor might or might not be responsive to the available rehabilitative services. 
20

Time is only one of the five statutory criteria that the court must consider in making the 

determination. (§ 703(a)(3)(B)(i).)

We accordingly conclude that the express terms of section 707(a)(3) require the 

court to evaluate five criteria in determining whether “the minor is not amenable to 

rehabilitation while under the jurisdiction of the juvenile court” and that the statute does 

not require that any of those criteria be afforded any greater weight than any other. 

(§ 707(a)(3).) We further conclude that the second criterion–“[w]hether the minor can be 

rehabilitated prior to the expiration of the juvenile court’s jurisdiction” 

(§ 707(a)(3)(B)(i))—is distinct from the ultimate determination “that the minor is not 

amenable to rehabilitation while under the jurisdiction of the juvenile court” 

(§ 707(a)(3)).

In support of his contrary interpretation, Miguel relies on E.P. He claims that E.P. 

reversed the juvenile court’s transfer order because the juvenile court’s “‘totality of the 

circumstances’ approach, and its reliance on the other factors under [section 707(a)(3)], 

failed to properly consider the effect of” Assembly Bill 2361’s amendments. 

(Underlining omitted.) Miguel’s reliance on E.P. is misplaced. In E.P., the transfer 

hearing was held before Assembly Bill 2361 took effect. (E.P., supra, 89 Cal.App.5th at 

p. 411.) Because the court concluded, and the parties agreed, that Assembly Bill 2361 

applied retroactively to the case because there was not yet a final judgment, E.P. reversed 

for the juvenile court to hold a new transfer hearing applying the new law. (E.P., at 

pp. 416-417.) E.P. explained: “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 
21

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 [the minor] is amenable to treatment.” 

(Id. at p. 417.)

E.P. does not support Miguel’s interpretation of section 707. E.P.’s description of 

the effect of Assembly Bill 2361 on section 707 does not imply that the amendment gives 

greater weight to the second criterion, nor does E.P. suggest that the second criterion and 

the ultimate determination are the same. On the contrary, E.P. clarifies that 

section 707(a)(3), as amended by Assembly Bill 2361, requires the juvenile court to 

consider all five of the listed criteria in making the ultimate determination about the 

minor’s amenability to rehabilitation while under the juvenile court’s jurisdiction. (E.P., 

supra, 89 Cal.App.5th at p. 417.)

Because the juvenile court is not required to give greater weight to the second 

criterion or to deny the transfer motion if that criterion does not weigh in favor of 

transfer, we conclude that the juvenile court did not err by not according the second 

criterion greater weight than the other criteria. We further conclude that the juvenile 

court’s finding that Miguel was not amenable to rehabilitation while under the juvenile 

court’s jurisdiction (§ 707(a)(3)) was consistent with its finding that the prosecution had 

not established that the second factor (§ 707(a)(3)(B)(i)) weighed in favor of transfer.

C. Sufficiency of the Evidence

Miguel concedes that the record contains sufficient evidence to support the court’s 

findings under the previous preponderance of the evidence standard of proof. But he 
22

argues that the evidence is insufficient under the new clear and convincing evidence 

standard of proof because (1) the juvenile court relied on Miguel’s statements in 

October 2021 about being a murderer, and (2) there was new evidence of his progress 

toward rehabilitation. We disagree.

Miguel argues that the court “excessive[ly]” relied on the statements Miguel made 

in October 2021, “despite the continued lack of evidence of the tone and context of the 

alleged comments” and “despite [purported] criticism of the relevance of those comments 

by not only the defense but also this Court.” The argument lacks merit for two reasons. 

First, Miguel mischaracterizes our prior opinion. We did not question the relevance of 

the October 2021 statements. In fact, we expressly rejected “Miguel’s argument that the 

absence of evidence as to the tone or context of the statements renders them ‘worthless as 

an indication of’ Miguel’s state of mind reflecting a lack of remorse.” (In re Miguel R., 

supra, E078528.)

Second, Miguel’s argument that the juvenile court unduly emphasized the 

October 2021 statements is not supported by the record, just as it was not supported by 

the record in the prior appeal. (In re Miguel R., supra, E078528.) The court’s 

consideration of the October 2021 statements was limited to its analysis of the second 

criterion, namely, whether Miguel could “be rehabilitated prior to the expiration of the 

juvenile court’s jurisdiction.” (§ 707(a)(3)(B)(i).) But the court determined that the 

second criterion did not weigh in favor of transfer. Miguel’s argument that the court 

unduly relied on the October 2021 statements as a basis to grant the transfer motion 

therefore fails.
23

Miguel’s only other argument concerning the sufficiency of the evidence is that 

the record contains evidence that Miguel did not have any recent disciplinary issues,

completed a substance abuse program, and obtained his GED, all of which tends to show 

his “progress toward rehabilitation.” The argument fails because the existence of 

contrary evidence does not show that the trial court’s findings were not supported by 

substantial evidence. In conducting substantial evidence review, we draw all reasonable 

inferences in support of the court’s findings, not against them. (Cardenas, supra, 53 

Cal.App.5th at p. 119, fn. 11.) We consequently are concerned only with whether “‘“the 

circumstances reasonably justify the trier of fact’s findings.”’” (People v. Kraft (2000) 

23 Cal.4th 978, 1054.) When evidence reasonably justifies the trier of fact’s findings, 

“‘the opinion of the reviewing court that the circumstances might also reasonably be 

reconciled with a contrary finding does not warrant a reversal of the judgment.’” (People 

v. Thomas (1992) 2 Cal.4th 489, 514.)

For these reasons, we conclude that Miguel has failed to demonstrate that the 

juvenile court’s finding is not supported by substantial evidence.

D. Senate Bill 545

Senate Bill 545 became effective while this appeal was pending, so we asked the 

parties to file supplemental briefs addressing the effect of the new legislation on this 

appeal. The parties assume and we agree that the amendments are ameliorative and 

accordingly apply retroactively to Miguel’s case because there is not yet a final judgment. 

(See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304; S.S., supra, 89 

Cal.App.5th at pp. 1288-1289 [applying Assembly Bill 2361 retroactively].)
24

With respect to the new factors that must be considered in connection with the first 

criterion (i.e., the degree of criminal sophistication), Miguel acknowledges that the record 

“does not disclose any indication that [he] was involved in the child welfare or foster care 

system, or was a victim of violence, trafficking, or abuse[], and [he] specifically denied 

being sexually abused.” (§ 707, subd. (a)(3)(A)(i)-(ii).) But Miguel argues that because 

there previously “was no reason to determine or consider whether [those factors] in fact 

existed in this case,” we should reverse and remand so that the parties can develop the 

record accordingly and the juvenile court can reconsider the motion in light of the new 

factors. The contention lacks merit.

Before Senate Bill 545, “the effect of the minor’s family and community 

environment” and “childhood trauma” were among the listed factors for the court to 

consider in analyzing the minor’s “degree of criminal sophistication.” (Former § 707, 

subd. (a)(3)(A)(i)-(ii).) Likewise, before Senate Bill 545, “the effect of the minor’s 

family and community environment and childhood trauma on the minor’s previous 

delinquent behavior” were listed as relevant to the court’s analysis of “[t]he minor’s 

previous delinquent history.” (Former § 707, subd. (a)(3)(C)(i)-(ii).) Any evidence of 

Miguel’s involvement in the child welfare system or any history of sexual abuse, sexual 

battery, or human trafficking would be relevant to his family and community 

environment and childhood trauma, so such evidence would have been relevant even 

before Senate Bill 545. The parties therefore had an incentive to develop and present 

such evidence at Miguel’s transfer hearing.
25

Accordingly, the 2019 probation report includes sections about Miguel’s family 

background, personal history, and statements from both Miguel and his mother about his 

family life. No one reported that Miguel was ever involved in the child welfare or foster 

care system. The report affirmatively states that Miguel was not a victim of sexual or 

physical abuse. Likewise, none of the reference letters submitted on Miguel’s behalf 

states that Miguel had any child welfare history, had been sexually abused, or was a 

human trafficking victim. Thus, even though Miguel had an incentive before 

Senate Bill 545 to introduce evidence concerning child welfare history and any history of 

sexual abuse or human trafficking, the record contains none and actually contains 

contrary evidence.

For all of these reasons, we conclude that it is not reasonably probable that the 

juvenile court would have reached a result more favorable to Miguel if it had applied the 

current version of section 707. (S.S., supra, 89 Cal.App.5th at p. 1289 [failure to apply 

amendments to section 707 is reviewed for harmlessness under People v. Watson (1956) 

46 Cal.2d 818, 836].)

DISPOSITION

The order transferring Miguel to criminal court is affirmed.

CERTIFIED FOR PUBLICATION

MENETREZ

J.

We concur:

MILLER

Acting P. J.

FIELDS

J.