1

Filed 11/6/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

KEVIN P.,

Petitioner,

v.

THE SUPERIOR COURT OF 

CONTRA COSTA COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

 A159680

 (Contra Costa County

 Super. Ct. Nos. J18-00823, 

 02-331373-1)

Kevin P. was charged in juvenile court with a murder he allegedly 

committed at age 17, and the prosecution moved to transfer him to criminal 

court under Welfare and Institutions Code1 section 707, subdivision (a)(1). 

During a contested hearing lasting several days, the juvenile court was 

presented with a wealth of evidence demonstrating both the heinousness of 

the crime and the absence of anything in Kevin’s history that would suggest 

he was capable of it. He was raised by a loving family, had no prior criminal 

history, suffered little past trauma, and had no significant psychological or 

behavioral issues. And after his arrest, his behavior was exemplary while he 

was housed at juvenile hall.

1 All further statutory references are to the Welfare and Institutions 

Code unless otherwise noted.
2

Nevertheless, the juvenile court concluded that Kevin was unfit for the 

juvenile system and granted the prosecution’s motion to transfer him to 

criminal court. Although the court acknowledged there was “a certain 

tragedy” in its ruling given Kevin’s generally positive history outside the 

context of the charged crime, it determined that the decision was warranted 

based on three of the section 707 criteria—the circumstances and the gravity 

of the offense, the degree of criminal sophistication shown, and the 

improbability of Kevin’s rehabilitation before the expiration of juvenile court 

jurisdiction.

Kevin filed a petition for an extraordinary writ in this court to overturn 

the juvenile court’s transfer ruling. He claims that the juvenile court abused 

its discretion because there was insufficient evidence to support its findings 

and it misapplied the law in determining that he could not be rehabilitated 

before juvenile jurisdiction expired. We conclude the court’s findings 

regarding section 707’s gravity and criminal-sophistication criteria are 

supported by substantial evidence. But we also conclude that the court 

improperly evaluated section 707’s rehabilitation criterion, which it deemed 

its “most significant” consideration. In doing so, we hold that a court cannot 

determine a juvenile’s rehabilitative needs based solely on the gravity of the 

offense, and the standard seven-year parole consideration period that applies 

to juveniles committed to the Department of Juvenile Justice (DJJ)2 for 

murder does not establish a presumptive rehabilitation period. Accordingly,

2 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.) Under the new law, a ward 

cannot be committed to DJJ after that date unless a transfer motion was filed 

in his or her case, in which case a DJJ commitment may be made “pending 

[DJJ’s] final closure.” (§ 736.5, subds. (b)–(c).) 
3

we grant the writ petition and remand the matter to the juvenile court to 

reconsider its transfer ruling.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

A. The Killing and the Police Investigation

On the morning of July 19, 2018, 38-year-old Kishana Harley was 

found dead in her Richmond apartment’s living room. She had been stabbed 

38 times, mostly in her neck, shoulder, and upper back, as well as in the side 

of her face and the back of her head. She also had what appeared to be 

defensive wounds on both hands. 

Harley was facedown with a knife handle resting on her back, and a 

bloody knife blade was on the floor nearby. The handle and blade appeared 

to go together to form “a common steak knife.” A butcher knife with a broken 

tip and blood on it was in the kitchen sink, and there was blood on the 

counter next to the sink. Blood was also found in other places throughout the 

apartment, including in a bathroom. In addition, a “napkin or paper towel 

wrapped in blue tape” in a “long” shape, like a “handle of some sort,” was in 

the hallway. 

When a police officer arrived at the apartment, she observed blood 

smeared around the front door, and a glass sliding door to the apartment’s 

patio was slightly open. The gas burners on the stove were on, and there was 

a “black charred substance” around Harley’s head. Additional evidence in the 

apartment also demonstrated attempts to start a fire, including burned

napkins on a couch. Harley’s shirt had bleach stains on it, and there was a 

trail of blue toilet-bowl cleaner from the living room to the master bedroom. 

Several items were on the dining table—including a laptop, a purse, and the 

end of a marijuana joint—and “the whole table and its contents on top were 
4

all doused in an unknown substance.” Harley’s primary cell phone was 

missing, and her Mercedes was not in the complex’s parking lot.

Surveillance footage from the apartment complex showed Harley enter 

her apartment at around 8:35 p.m. on July 16, 2018, three nights before her 

body was found. About five minutes later, a male suspect later determined to 

be Kevin entered the apartment, after initially turning away from it when 

two other people appeared. Over an hour later, around 10:00 p.m., Kevin left 

the apartment, and around 11:35 p.m., Harley’s Mercedes was driven out of 

the complex’s parking lot. Kevin re-entered Harley’s apartment carrying 

white bags at around 12:05 a.m., left with the bags a few minutes later, and 

then returned to the apartment and exited it within a few more minutes. 

Harley’s cell phone records showed that the last call Harley received 

was at 8:33 p.m. on July 16, a few minutes before Kevin initially entered her 

apartment. The same number was used to call her 10 times between July 1 

and July 16, with no conversation lasting more than three minutes. The 

number belonged to Kevin’s mother, whose cell phone records listed a San 

Francisco address that was three blocks from where Harley’s car was later 

located, about two weeks after Harley’s death. As it turned out, Kevin’s 

family originally lived in San Francisco before moving to Richmond when 

Kevin was 12 years old, and he continued to attend high school in San 

Francisco and spent most of his time there. 

Based on the cell phone records and a recording of a 2016 encounter 

with police at his mother’s house that showed Kevin wearing black-rimmed 

glasses similar to those worn by the suspect in the surveillance footage, a 

warrant issued to obtain his DNA. Forensic testing tended to suggest that a 

mixture of Kevin’s and Harley’s DNA was on both the blade and the handle of

the butcher knife found in the kitchen sink, with Kevin as the major 
5

contributor of the DNA on the blade and Harley as the major contributor of 

the DNA on the handle. Kevin’s DNA was on the kitchen counter and in the 

bathroom, but it was not on either the handle or blade of the steak knife 

located by Harley’s body, the latter of which had female DNA on it. The 

evidence also tended to suggest that the blood in the bathroom was Harley’s.

During a subsequent search of Kevin’s home, the police discovered a 

butcher block that contained other knives with handles matching the knife 

handle found on Harley’s body, as well as paper towels and painter’s tape 

matching the materials used to make the tape-wrapped object found in 

Harley’s hallway. The police also found a pair of white Nike sneakers, which 

appeared similar to “bright white shoes” worn by the suspect in the

surveillance footage. Both the sole of one of the shoes and the box in which 

they were found had bloodstains on them. 

During his interrogation by police, Kevin initially denied knowing 

Harley or ever being inside her apartment, but he eventually admitted that 

he killed her. He reported that he originally met her at a gas station a few 

weeks before her death and asked her to buy tobacco for him. There was also 

evidence that the two smoked marijuana together, and some of Kevin’s family 

members thought they had seen Harley’s car around their house earlier in 

July. According to Kevin, on the night in question, he went to Harley’s 

apartment to smoke marijuana with her. 

Although Kevin changed his story in several respects throughout the 

interrogation, he maintained that he stabbed Harley in self-defense after she 

attacked him with a knife. He also claimed that at one point she stabbed 

herself when he swung a door open, hitting her. He eventually admitted that 

he brought a knife with him that night, although he stated that it was for 

protection because Harley lived in a dangerous neighborhood. He also stated
6

that the tape-wrapped paper towel was a type of scabbard to cover the blade 

so he would not cut himself. 

As to his actions after the killing, Kevin admitted that he tried to burn 

Harley’s body because Harley “was starting to stink” and “[s]he was a fake.” 

He also acknowledged turning on the stove burners and bringing bags into 

the apartment, but he claimed he could not remember his reason for either 

action. 

B. Kevin’s Background and Performance in Custody

Kevin is the son of Central American immigrants and grew up in San 

Francisco’s Mission District until moving to Richmond. He has two older 

half-brothers and a younger sister. Family members described Kevin as 

affectionate, loving, calm, and respectful. He was especially good with his 

brother’s and his cousin’s very young children, “treat[ing] them with care and 

tenderness.”

Kevin and his family members uniformly described his home as “a 

happy place” without any physical or sexual abuse, domestic violence, or 

substance abuse. Aside from his parents’ separation when he was in 

elementary school, Kevin did not describe any significant traumatic events

from childhood, and his father was still involved in his life. Kevin’s family 

was supportive after his arrest, and his parents regularly visited him in 

juvenile hall. 

For about a year before the offense, Kevin had a paid position working 

four hours a day at an afterschool program for middle school students run by 

the Boys & Girls Club of San Francisco. His job responsibilities included 

facilitating activities and helping with homework, and he connected well with 

the children and was concerned about them. Indeed, he would routinely stay 

late at the program even though he was not compensated for those hours. 
7

His co-workers were “very impressed” with his work ethic, responsibility, and 

respectfulness to other staff, and he won “Youth of the Month” during his 

employment. 

Kevin had no criminal history or arrests before this case. He engaged 

in some misbehavior, including setting off firecrackers at school and forcing 

open a bedroom door to retrieve his cell phone after his mother confiscated it, 

but he had no record of mental illness or any “aggressive or predatory 

behavior” toward others. Both the forensic social worker and forensic 

psychologist who evaluated Kevin for the transfer hearing found it significant 

that he had no gang involvement, despite growing up as a Latino in the 

Mission District.3 Kevin admitted to smoking marijuana regularly, but there 

were no indications of any other type of substance abuse. 

Kevin’s school records suggested both that he was “highly intelligent” 

and that he might have “a processing problem” for which a recommended 

special-education evaluation never took place. Before his arrest, his high 

school grades were generally poor, primarily due to truancy. After Kevin 

entered juvenile hall, however, his grades showed “[v]ast improvement in 

most areas.” Indeed, he won several certificates for his scholastic 

performance, which was described as “pretty exemplary.” He eventually

graduated from high school and then continued to take classes. 

Kevin also received awards for good citizenship while in juvenile hall. 

He was engaged in therapy and group activities, and he had positive 

interactions with juvenile hall staff. Although he fought with two other boys 

3 Evidence in the record indicates that one of Kevin’s brothers was 

involved in a gang and had several arrests, although these occurred after the 

brother moved out of the family home. 
8

early in his stay, he ultimately befriended both, and overall he was doing 

extremely well in custody. 

The forensic psychologist’s evaluation showed Kevin had average 

intellectual ability with a possible learning disability related to mathematics,

good executive functioning, and no neurocognitive impairments. He did not 

have conduct disorder, the youth corollary of antisocial personality disorder.

It was possible that Kevin had a delusional disorder, which “is a condition 

where one develops beliefs that have no basis in reality,” but the forensic 

psychologist could not definitively diagnose it because he was directed not to 

question Kevin about the offense. The psychologist opined, and Kevin’s 

family members and acquaintances agreed, that the “offense conduct, as 

charged, is completely out of character.” 

C. Procedural History

In September 2018, the Contra Costa County District Attorney filed a 

petition under section 602 alleging that Kevin murdered Harley. The 

petition also alleged that Kevin used a deadly and dangerous weapon, a 

knife, during the murder, as well as the special circumstance that the murder 

was committed during a burglary or attempted burglary.

4 The prosecution 

contemporaneously moved to transfer the matter to criminal court under 

section 707, subdivision (a)(1), and Kevin requested a hearing on whether the 

prosecution could make a prima facie showing that he committed the alleged 

offense. 

4 The allegations were made under Penal Code sections 187, 

subdivision (a) (murder), 12022, subdivision (b)(1) (weapon use), and 190.2, 

subdivision (a)(17) (burglary special circumstance). 
9

A combined prima facie/transfer hearing was held over several sessions 

during the summer and fall of 2019.5 Although the prosecution presented 

testimony from several witnesses about the underlying crime, it presented no 

testimony about other transfer-related issues from any witness except for the 

probation officer who prepared a transfer report recommending Kevin be 

transferred to criminal court. Kevin presented testimony from four

witnesses: the forensic social worker and forensic psychologist who evaluated 

him, his supervisor at the Boys & Girls Club afterschool program, and a DJJ 

parole agent. Except for the probation officer’s testimony and report, the 

prosecution did not present any evidence to rebut Kevin’s showing of his 

likelihood of being rehabilitated, and the prosecution did not dispute his

generally positive history. We discuss the evidence both sides presented in 

more detail below, in connection with the relevant section 707 criteria.

The juvenile court found that the prosecution established a prima facie 

case to support the murder charge and that Kevin was not suitable for 

treatment under the juvenile court system. The court concluded that while

two criteria under section 707 supported Kevin’s retention in juvenile court—

his lack of a delinquent history and the consequent lack of previous attempts 

to rehabilitate him under the juvenile system—the remaining three criteria

supported a finding of unfitness. First, the court found that Kevin exhibited 

some degree of criminal sophistication, because in addition to trying to cover 

up the crime, he was not influenced by anyone else to kill Harley and he 

appreciated the wrongfulness of his behavior. Second, the court found that 

the crime presented “about as grave of circumstances that could exist,” since

5 The parties stipulated that the evidence presented for purposes of the 

prima facie hearing could also be considered for purposes of the transfer 

hearing. 
10

it was a “gri[s]ly, gri[s]ly violent murder” that appeared to be premeditated 

and Kevin’s attempts to set a fire endangered the lives of others at the 

apartment complex. Finally, as to the criterion “most significant” to its 

decision, the court found that even though Kevin had “done well in [a] 

structured setting” in juvenile hall, it was unclear that he could be 

rehabilitated in DJJ before he turned 25. 

Accordingly, in November 2019, the juvenile court ordered the matter 

transferred to criminal court. Two months later, a criminal complaint was 

filed charging Kevin with same count and allegations brought in the juvenile 

petition, with the addition of a special circumstance of lying in wait.6

In February 2020, Kevin filed a petition for a writ of mandate in this 

court to compel the juvenile court to vacate its order and enter an order 

denying the transfer motion. The following month, we summarily denied the 

petition, and Kevin petitioned for review in the California Supreme Court. 

On June 10, 2020, the Supreme Court granted review and transferred the 

matter to this court with directions to vacate our decision denying the writ 

petition and to issue an order to show cause, and on June 22 we did as 

directed. The district attorney filed a return, Kevin filed a reply, and the 

Pacific Juvenile Defender Center and Independent Juvenile Defender 

Program, Los Angeles County Bar Association, filed an amicus curiae brief on 

Kevin’s behalf. With this additional briefing in mind, we turn to discuss the 

petition’s merits.

6 The lying-in-wait special circumstance was alleged under Penal Code 

section 190.2, subdivision (a)(15). In addition, the burglary special 

circumstance alleged more specifically that Kevin committed murder while 

“engaged in immediate flight” after committing or attempting to commit 

burglary. 
11

II.

DISCUSSION

A. General Legal Standards

“Historically, California required a judicial determination of unfitness 

for juvenile court before a minor could be prosecuted in adult court,” and 

“[s]ince 1975, the procedural requirements for fitness hearings (also called 

transfer hearings) have been established by section 707.” (D.W. v. Superior 

Court (2019) 43 Cal.App.5th 109, 115 (D.W.).) In March 2000, the electorate 

passed Proposition 21, under which “the People were authorized in specified 

circumstances to file a criminal action against a juvenile directly in adult 

court.” (D.W., at p. 116.) Sixteen years later, however, the electorate passed 

Proposition 57, which had a stated purpose of “ ‘[s]topping the revolving door 

of crime by emphasizing rehabilitation, especially for juveniles.’ ” (People v. 

Superior Court (Alexander C.) (2019) 34 Cal.App.5th 994, 1000, quoting Voter 

Information Guide, Gen. Elec. (Nov. 8, 2016), text of Prop. 57, § 2, p. 141.) 

“To increase the number of minors in the juvenile system, Proposition 57 

eliminated Proposition 21’s system of direct filing in criminal court” and 

“amended section 707 to require a transfer hearing before a juvenile can be 

prosecuted in adult court to determine whether the minor can be

rehabilitated in juvenile court,” effectively “return[ing] California to the 

historical rule.” (Alexander C., at p. 1000; D.W., at p. 116; J.N. v. Superior 

Court (2018) 23 Cal.App.5th 706, 711 (J.N.).) 

Specifically, the law now provides that “[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 Kevin was—“the prosecutor ‘may make 

a motion to transfer the minor from juvenile court to a court of criminal 

jurisdiction.’ ” (J.N., supra, 23 Cal.App.5th at p. 711, quoting § 707, 
12

subd. (a)(1); Cal. Rules of Court, rule 5.766(a)(2).)7 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.” (J.N., at

p. 715; rule 5.770(a).) “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.”8 (People v. Chi Ko Wong (1976) 

18 Cal.3d 698, 716 (Chi Ko Wong).)

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 

7 All further rule references are to the California Rules of Court.

8 In response to a transfer motion, the minor may “ ‘challenge[] the 

sufficiency of the evidence establishing that he [or she] committed the alleged 

offense[],’ ” in which case “the People must ‘make a prima facie showing that 

the minor committed the crime[].’ ” (D.W., supra, 43 Cal.App.5th at p. 116; 

Edsel P. v. Superior Court (1985) 165 Cal.App.3d 763, 784; rule 5.766(c).) 

The juvenile court must find the prosecution has made the required prima 

facie showing, which is “generally equivalent to ‘reasonable and probable 

cause,’ ” before it rules on whether the minor is fit for juvenile treatment. 

(D.W., at pp. 116, 118–119.) In practice, a so-called “Edsel P. hearing” may be 

held jointly with the transfer hearing (see D.W., at p. 116), as occurred in this 

case. 
13

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 rule 5.770(b)(2).) “The weight to be given [to]

each of these factors is within the court’s discretion” (D.W., supra,

43 Cal.App.5th at p. 116), 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.”9 (C.S. v. Superior Court (2018) 

29 Cal.App.5th 1009, 1035 (C.S.).) 

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. 

(Rule 5.770(g).) We review such rulings for an abuse of discretion. (J.N., 

supra, 23 Cal.App.5th at p. 714.) The court’s factual findings are reviewed 

for substantial evidence, and its legal conclusions are reviewed de novo. 

(Ibid.) A decision based on insufficient evidence or the court’s “ ‘erroneous 

understanding of applicable law’ ” is subject to reversal. (Id. at pp. 710, 714–

715.) 

B. There Was Substantial Evidence that the Crime’s Gravity and 

Circumstances Supported Kevin’s Transfer to Criminal Court.

Kevin argues that insufficient evidence supported the juvenile court’s 

findings involving “[t]he circumstances and gravity of the offense alleged in 

9 Before Proposition 57, section 707 provided that the decision to 

transfer a minor to criminal court could “be based on any one or a 

combination of the [five] factors.” (Former § 707, subd. (a)(1); see Chi Ko 

Wong, supra, 18 Cal.3d at p. 717, fn. 15 [“any one” of five factors “is sufficient 

to support a finding of unfitness”].) The current statute directs that a 

juvenile court “shall consider” all five criteria but does not specify how many 

must support transfer. (§ 707, subd. (a)(3).) Our decision here does not 

require us to decide whether it remains true that a court can transfer a minor

even if only one criterion supports doing so.
14

the petition to have been committed by the minor.” (§ 707, subd. (a)(3)(E)(i).) 

We disagree.

1. Additional facts

The probation officer believed that the gravity criterion weighed in 

favor of Kevin’s transfer to criminal court. She focused on the facts that 

Kevin was the only perpetrator of the crime, stabbed Harley 38 times, and 

took measures to cover up his involvement that could have seriously 

endangered other residents of Harley’s apartment complex. Although 

acknowledging that Kevin claimed he acted in self-defense, the probation 

officer observed that “the thought and execution of dousing the entire 

apartment with a chemical and strategically placing tissue and pillows 

around the victim’s body to set her on fire goes beyond self-defense.” 

The forensic psychologist, Dr. John Shields, Ph.D., conceptualized this 

criterion as addressing not just the seriousness of the crime—which he 

agreed was “a very violent, egregious, horrific crime” committed by Kevin 

alone—but whether the behavior was “so grave as to impede or preclude” 

Kevin’s rehabilitation. Noting that Kevin had made significant progress 

toward rehabilitation while in juvenile hall, Dr. Shields determined that the 

crime was not “so indicative of [his] character, so grave in nature to suggest 

that rehabilitation isn’t possible, or [that] it would be so hampered that it 

would take an indefinite period of time.”

In explaining his inability to conclude that the criterion favored 

transfer despite the admitted seriousness of Kevin’s criminal behavior, 

Dr. Shields highlighted the lack of context for understanding Kevin’s actions. 

In particular, he indicated that there were “a number of important, yet 

unanswered, . . . questions about precisely what occurred,” including the 
15

nature of Kevin and Harley’s relationship and the extent to which Kevin 

acted because he was in fear of Harley. 

Indeed, other evidence presented at the hearing suggested the killing 

was not necessarily a straightforward premeditated murder. In addition to 

the physical evidence suggesting Harley also had a knife during the 

encounter, evidence of her aggressive character was presented. Harley’s 

boyfriend described her as having “mood swings kind of going from . . . zero to

[a] hundred, and getting mad over small things or nothing,” and another 

friend indicated she had “significant anger issues” involving a custody 

dispute with the father of her two young children. On at least one occasion, 

both Harley and the father of those children were arrested as a result of a 

domestic violence incident in New York. Finally, and most significantly, less 

than two years before her death Harley assaulted her older daughter outside 

the daughter’s middle school, punching the child with a belt wrapped around 

her knuckles. After the daughter reported that Harley often beat her without 

provocation, she was removed from Harley’s custody, and she remained in 

foster care at the time of Harley’s death. 

The juvenile court concluded that the gravity criterion favored transfer, 

specifically rejecting Dr. Shields’s position that “the very nature of the 

circumstances and gravity do not impede [Kevin’s] rehabilitation.” Observing 

that “[t]here is no question that this was a gri[s]ly, gri[s]ly violent murder” 

during which Kevin acted alone, the court found it “pretty clear . . . that this 

is about as grave of circumstances that could exist.” The court also found it 

“worthy of mentioning under this [criterion]” that Kevin tried to set a fire 

after the killing, “because his further actions created a further risk to all of 

the residents of [Harley’s] apartment complex.” 
16

As to Kevin’s mind state, the juvenile court determined that Kevin 

acted with “some type of premeditation or some type of intent to inflict some 

type of serious harm to [Harley],” based on the fact he “brought a knife from 

his own home to [her] home,” initially backed away from entering her 

apartment when other people were nearby, and made other efforts to avoid 

detection after committing the crime. The court specifically rejected Kevin’s 

claim of self-defense, stating, “His assertion that this [was] self-defense is not 

credible. The amount of force that was inflicted upon [Harley] is well beyond 

any type of reasonable force that would be necessary to protect yourself and 

get yourself to a situation of some type of safety. At one point there was a 

reference to a door opening and therefore she stabbed herself. These types of 

comments are honestly, they are ludicrous. That’s not how this occurred.” 

2. Discussion

The gravity criterion focuses on the offense “ ‘alleged in the petition’ ”

(D.W., supra, 43 Cal.App.5th at p. 119), and like the other statutory criteria, 

it is “based on the premise that the minor did, in fact, commit the offense.” 

(People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 682 (Jones).) But the 

allegation that a minor committed a serious offense, including murder, does 

not “automatically require a finding of unfitness.” (Ibid.; J.N., supra, 

23 Cal.App.5th at p. 724.) Rather, in evaluating this criterion, a juvenile 

court may rely on evidence that, “while not justifying or excusing the crime, 

tends to lessen its magnitude” (Jones, at p. 685), “including, but not limited 

to, the actual behavior of the person, the mental state of the person, the 

person’s degree of involvement in the crime, the level of harm actually caused 

by the person, and the person’s mental and emotional development.” (§ 707, 

subd. (a)(3)(E)(ii).)
17

Kevin acknowledges that “the nature of the offense alleged is grave and 

serious,” but he argues that there was nevertheless insufficient evidence of 

his “actual behavior” and “mental state” during the crime. He points out that 

“there were significant unresolved questions as to what occurred, and no 

third-party percipient witnesses to the crime,” leaving Dr. Shields unable to 

“opine that this criterion weighed in favor of transfer” without “additional 

information.” But while a minor’s “actual behavior” and “mental state” 

during the crime are among the factors deemed relevant under section 707, 

subdivision (a)(3)(E)(ii), there need not be substantial evidence that all of the 

factors the statute lists weigh in favor of transfer to uphold a juvenile court’s 

evaluation of the gravity criterion. To the contrary, a court’s consideration of 

the listed factors or “any [other] relevant factor” is permissive, not

mandatory. We recognize that some mitigating evidence about Kevin’s 

“actual behavior” and “mental state” was presented, including his own claim 

of self-defense.10 But this does not undermine other substantial evidence of 

the crime’s seriousness, including the evidence that Kevin acted alone and 

under no outside influence, stabbed Harley dozens of times, and engaged in 

additional behavior dangerous to human life to cover up the crime.

Kevin also claims that the gravity criterion must be evaluated in light 

of the ultimate issue at a transfer hearing, whether a minor “ ‘is amenable to 

the care, treatment[,] and training program[] available through juvenile court 

facilities.’ ” (Quoting Chi Ko Wong, supra, 18 Cal.3d at p. 717.) He seems to 

10 The juvenile court found this claim was not credible, but we interpret 

the finding as rejecting only a claim of perfect self-defense, given the court’s 

statement that Kevin did not use “reasonable force.” Even if Kevin did not 

act in perfect or even imperfect self-defense, it is still possible that he acted in 

response to provocation from Harley, which would reduce the crime from first 

degree to second degree murder. (See People v. Rivera (2019) 7 Cal.5th 306, 

328.)
18

suggest that the juvenile court was precluded from finding this criterion 

weighed in favor of transfer in light of Dr. Shields’s opinion that “ ‘as heinous 

and egregious as this event was, . . . it [was] not so grave as to hamper or 

preclude [Kevin] from being rehabilitated.’ ” Although we agree that the 

circumstances and gravity of the crime are relevant because they bear on a

minor’s prospects of rehabilitation, Kevin does 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. 

In short, there was substantial evidence to support the court’s conclusion,

even though there may have also been substantial evidence to support a 

different conclusion.

C. Substantial Evidence Supported the Determination that Kevin’s 

Criminal Sophistication Weighed in Favor of Transfer.

Kevin also argues that insufficient evidence supported the juvenile 

court’s findings as to the statutory criterion involving “[t]he degree of 

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

addition, he claims that the court’s discussion of how it evaluated this 

criterion was too limited to provide “an adequate record for review.” We are 

not persuaded on either count.

1. Additional facts

The probation officer believed that Kevin’s degree of criminal 

sophistication also weighed in favor of his transfer to criminal court. 

Concentrating on the crime itself, she observed that despite his claim of selfdefense, he brought a weapon with him to Harley’s apartment and “made 

efforts to avoid being detected” when he first arrived, suggesting both that 

the killing was premeditated and that he knew “he was about to do 

something wrong.” She also identified other indications that Kevin “was 

aware of the wrongfulness of his actions,” including his “heinous actions to 
19

burn and destroy the crime scene, failure to seek assistance and report the 

incident, and [decision] to flee the scene, only to return and flee again.” 

Finally, she noted that Kevin did not have any “documented history of mental 

health issues, childhood trauma, or diminished intellectual capacity” 

suggesting he was unable to distinguish between right and wrong. 

Dr. Shields, in contrast, concluded that Kevin’s attempts to conceal the 

crime demonstrated “the absence of sophistication.” Among other “hopelessly 

unsuccessful” actions, Kevin left the steak knife at the scene, kept the shoes 

he wore that night even though they had blood on them, and failed to destroy 

other physical evidence through either chemical agents or fire. And despite 

the six-week gap between Harley’s killing and his interrogation, Kevin did 

not come up with a plausible explanation for why, if he did not know Harley, 

the phone records showed his number called hers numerous times. 

Dr. Shields also opined that “outside of the facts of this crime,” there was 

“nothing in the assessment data or in [Kevin’s] history that suggests . . . that 

he is an individual who is developing a criminally sophisticated character.” 

Indeed, Kevin’s “criminal character” seemed much less developed than that of 

most other 18-year-old boys in juvenile hall, and he was not “an adolescent 

who maintains that harming people, assaulting people[,] or committing any 

form of crime . . . is a routine or acceptable form of conduct.” 

More generally, Dr. Shields testified about recent research on the brain 

chemistry of adolescents, which is “significantly different” from that of adults. 

Adolescents’ brains continue to develop until they reach their early 20’s, and 

there is generally a large gap between their “psychosocial maturity” and their 

intellect, the latter of which develops more quickly. As a result, the behavior 

an adolescent exhibits is less indicative of a long-term character trait than it 

would be if an adult exhibited it, since “there is more development that’s 
20

going to take place that’s going to improve reasoning ability, it’s going to 

improve ability to foresee future consequence, it’s going to be able to be more 

resistant to risk taking, outside influence, all of these kinds of things that we 

know adolescents are vulnerable to.” Thus, “there is much more potential in 

adolescents for change and development pro-socially than we thought 

previously.” 

The juvenile court concluded that the criminal-sophistication criterion 

weighed in favor of transfer to criminal court. After observing that Kevin 

was about 17 and a half years old at the time of the offense, the court 

reviewed evidence that he was a normally functioning teenager. The court 

noted that he seemed to be “of normal intelligence,” based on educational 

testing and his obtaining of a diploma while in juvenile hall, and “his 

cognitive functioning seem[ed] to be perfectly fine and [was] not impaired.” 

The court also noted that although it accepted the testimony about adolescent

brain development, Dr. Shields had “opined that Kevin has good executive 

functioning.” The court observed that Kevin’s “family background . . . is 

unusually devoid of any type of abuse; either emotional, physical, any type of 

what I would refer to as difficulty in his upbringing.” And while “his older 

brother was reported to be a gang member,” it did not “appear that his 

brother influenced him in any way. It sounds like [Kevin] had very positive 

adults surrounding him.” Finally, the court found that “external influences” 

did not appear to play a role in the offense. To the contrary, Kevin had 

shown “the ability . . . to make good decisions in the face of tremendous 

pressure” by resisting gang affiliation. 

The juvenile court also addressed Dr. Shields’s opinion that Kevin’s 

unsuccessful attempts to cover up the crime demonstrated a lack of criminal 

sophistication. After expressly finding Dr. Shields’s testimony credible, the 
21

court stated that it nevertheless “did not necessarily agree with everything 

that Dr. Shields said.” The court acknowledged that Kevin “clearly made 

some botched efforts to conceal what had occurred,” but it also observed that 

“for several weeks” after the crime “he acted as if honestly nothing had 

happened” and might have escaped detection altogether “[b]ut for the phone 

calls that were discovered [in] the phone records.” The court found that 

Kevin’s efforts at concealment were also significant “because he knew of the 

wrongfulness and the consequences of this conduct,” concluding that “Kevin 

has the ability to appreciate the risks and consequences of his criminal 

behavior.” 

2. Discussion

The criminal-sophistication criterion “requires a juvenile court . . . to 

consider the whole picture, that is, all the evidence that might bear on the 

minor’s criminal sophistication, including any criminal sophistication 

manifested in the present crime.” (Jones, supra, 18 Cal.4th at pp. 683–684.) 

In evaluating this criterion, “the juvenile court may give weight to any 

relevant factor, including, but not limited to, the minor’s age, maturity, 

intellectual capacity, and physical, mental, and emotional health at the time 

of the alleged offense, the minor’s impetuosity or failure to appreciate risks 

and consequences of criminal behavior, the effect of familial, adult, or peer 

pressure on the minor’s actions, and the effect of the minor’s family and 

community environment and childhood trauma on the minor’s criminal 

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

Initially, we reject Kevin’s cursory assertion that the juvenile court 

failed to articulate its reasoning sufficiently to provide an adequate record for 

review. He relies on C.S., in which the Court of Appeal granted the minor’s 

writ petition after “conclud[ing] that the juvenile court’s transfer decision 
22

[did] not permit meaningful appellate review because the juvenile court did 

not clearly and explicitly ‘articulate its evaluative process’ by detailing ‘how it 

weighed the evidence’ and by ‘identify[ing] the specific facts which persuaded 

the court’ to reach its decision to transfer,” including as to the criminalsophistication criterion. (C.S., supra, 29 Cal.App.5th at pp. 1030–1031, 1035, 

1039.) Although the juvenile court in C.S. “discussed relevant factors—such 

as [the minor’s] early childhood, the expert testimony regarding [his] brain 

development, [his] prior offenses, and [his] gang involvement”—it did not 

specify whether those factors or the criminal-sophistication criterion 

generally weighed in favor of transfer. (Id. at pp. 1030–1031.) 

Here, in contrast, the juvenile court unambiguously found that the 

criminal-sophistication criterion “favor[ed] transfer to adult court.” Although

the court did not explicitly state whether each particular factor it discussed 

“weighed in favor of transfer, against transfer, or was neutral” (C.S., supra, 

29 Cal.App.5th at p. 1030), in the context of the court’s overall discussion we 

think its reasoning is sufficiently clear. Specifically, it appears the court 

found that Kevin’s age, maturity, cognitive functioning, and positive

upbringing and social history, as well as his attempts to cover up his 

involvement in the crime, weighed in favor of transfer to criminal court 

because they demonstrated his “ability to appreciate the risks and 

consequences of his criminal behavior” and his awareness “of the 

wrongfulness . . . of [his] conduct.” And given its ultimate conclusion about 

this criterion, the court appears to have found that these factors outweighed 

other factors tending to suggest an absence of criminal sophistication, 

including Kevin’s lack of “extensive prior criminal behavior” and Dr. Shields’s 

testimony about the adolescent brain.
23

Whether the factors on which the juvenile court relied should weigh in 

favor of a finding of criminal sophistication is a separate question. Kevin 

argues that the court “seem[ed] to imply that [his] positive character traits 

and . . . potential for growth equate to a sophisticated criminal character,” 

which “surely . . . would be an abuse of discretion, as positive character traits 

and protective factors cannot reasonably be used to support transfer.” 

Similarly, his amici curiae contend that “[a]though strong family support, 

positive and prosocial activities, normal intelligence[,] and lack of gang 

involvement are all factors tending to support healthy emotional 

development, maturity[,] and ‘sophistication’ as the term is used in the noncriminal context, they are not factors that lead to the development of criminal

sophistication of the type the juvenile court is required to evaluate” under 

section 707. 

We agree that such positive factors do not affirmatively demonstrate

criminal sophistication. Positive background factors may support a juvenile 

court’s finding that this criterion weighs in favor of transfer to the extent 

they fail to mitigate other evidence that does affirmatively demonstrate

criminal sophistication. Thus, the gang involvement of a minor with poor

cognitive functioning might demonstrate a lesser degree of criminal 

sophistication than the gang involvement of a minor with normal cognitive 

functioning. But the mere fact that a minor is of normal intelligence, for 

example, does not tend to prove that he or she is criminally sophisticated. 

Likewise, Kevin’s knowledge that his actions were wrong and his ability “to 

appreciate risks and consequences of criminal behavior” (§ 707, 

subd. (a)(3)(A)(ii)), which the juvenile court focused on, do not in and of 

themselves demonstrate criminal sophistication.
24

The juvenile court, however, did not rely only on Kevin’s positive 

characteristics in concluding that this criterion weighed in favor of transfer. 

It also relied on his attempts to avoid detection.11 These attempts included 

using chemical agents on Harley’s body and throughout the scene and 

attempting to set Harley’s body and apartment on fire. We conclude that 

such behavior constitutes substantial evidence of a certain degree of criminal 

sophistication. Although there is room for doubt about what precipitated 

Harley’s killing and how impetuous the killing was, it is reasonable to infer 

from Kevin’s activities over a sustained period after Harley’s death that he 

formulated and carried out a strategy to cover his tracks.

Kevin argues that his attempts to avoid detection are not substantial

evidence of criminal sophistication because “an effort at concealment does not

. . . suggest an individual is a sophisticated criminal” unless “the manner in 

which the effort is made” is criminally sophisticated. But this position cannot 

be reconciled with Jones, even accepting that Kevin’s efforts were hardly the 

work of a criminal mastermind. In Jones, our state Supreme Court held that 

insufficient evidence supported the juvenile court’s determination that the 

minors lacked criminal sophistication, even though they “had no previous 

11 Notably, the juvenile court did not rely on evidence of pre-killing 

planning activity in connection with the criminal-sophistication criterion. 

(See Jones, supra, 18 Cal.4th at p. 684 [minors’ “planning and execution of [a]

robbery” that culminated in store owner’s shooting “involved a degree of 

criminal sophistication precluding a finding of fitness”].) The court 

mentioned that Kevin brought a knife to Harley’s apartment, but it did so 

while discussing his “efforts to conceal [the crime],” stating, “[H]e did go to 

[Harley’s] home with at least one of the weapons with I believe some 

wrapping around the handle to obscure any hand[prints] or fingerprints, I 

assume.” Thus, although the People focus on Kevin’s supposed plan to 

murder Harley in arguing that the court properly evaluated this criterion, we 

do not address whether evidence of planning activity supports the court’s 

ruling. 
25

record of participation in any criminal offenses, gang activity, or mischievous 

conduct,” and their plan to rob a store “was uncomplicated and ineptly 

executed.” (Jones, supra, 18 Cal.4th at pp. 683–684.) Thus, the Court 

effectively concluded not only that ineptitude in one’s criminal activities does 

not preclude a finding of criminal sophistication, but also that such 

ineptitude does not even constitute substantial evidence of a lack of criminal 

sophistication. 

We recognize that Jones was decided over 20 years ago, when the 

juvenile transfer law differed in several respects from its current form. 

Under then-prevailing law, the Jones minors had the burden of overcoming a 

presumption of unfitness for treatment in the juvenile court system, which 

required them to prove by a preponderance of the evidence that each of the

five section 707 criteria demonstrated their fitness. (Jones, supra, 18 Cal.4th 

at pp. 677, 680–681.) In addition, as amici curiae observe, Jones was decided 

before section 707 was amended to list specific factors relevant to each 

criterion and before the general shift in the law to recognize more fully that 

“ ‘the distinctive attributes of youth diminish the penological justifications for 

imposing the harshest sentences on juvenile offenders, even when they 

commit terrible crimes.’ ” (Quoting Miller v. Alabama (2012) 567 U.S. 460, 

472.) But while it may be that our state Supreme Court would analyze the 

criminal-sophistication criterion differently today, we are not free thereby to 

disregard Jones’s discussion of it to the extent that discussion is consistent

with the current statutory scheme. (See Auto Equity Sales, Inc. v. Superior 

Court (1962) 57 Cal.2d 450, 455.) In light of Jones, we conclude that Kevin’s

attempts to cover up the crime constitute substantial evidence of criminal 

sophistication even if they were “hopelessly unsuccessful.”
26

D. The Juvenile Court Improperly Evaluated the Rehabilitation 

Criterion.

Finally, Kevin contends that the juvenile court erred in evaluating the 

rehabilitation criterion. We agree. The 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. We conclude both that the court erred by relying on the sevenyear period as a “baseline” rehabilitation period and that insufficient 

evidence supports the finding that Kevin was unlikely to be rehabilitated 

before juvenile court jurisdiction expired.

1. Additional facts

The probation officer testified that she contacted DJJ to obtain Kevin’s 

parole consideration date, which is based solely on the generic offense

charged. She was told that the standard parole consideration date for 

murder is seven years and that juvenile jurisdiction would exist until Kevin

reached age 25. Given that “it takes 60 to 90 days to be delivered to DJJ . . .

following a commitment” and that Kevin “would be released 90 to 100 days 

prior to jurisdiction expiring,” the probation officer calculated that he “would 

have approximately six and a half years to take advantage of rehabilitative 

services offered at DJJ.” 

In her report, the probation officer observed that “[b]ased on [Kevin’s] 

positive behavior while being detained in [j]uvenile [h]all, it appears [he] is 

able to program well in a structured environment.” She nevertheless

concluded that “[g]iven the extreme circumstance of the allegations and the 

gravity of [Kevin’s] actions, it is not likely a DJJ commitment would allow 

ample time to rehabilitate and take full advantage of therapeutic services.” 

She also concluded that “a DJJ commitment may not allow adequate time for 
27

supervision following [Kevin’s] release from DJJ,” meaning that “the 

[j]uvenile [c]ourt would not be able to gauge [his] rehabilitation and ensure 

the community’s safety.” At the hearing, the probation officer reiterated that 

“based on the totality of the circumstances of the offense,” there was simply 

“no way to know if seven years is enough to rehabilitate.” Thus, “erring on 

the side of caution given that [upon] release there would be no supervision, 

[the probation department] did not believe that a commitment to DJJ would 

be appropriate.” 

The probation officer confirmed that her opinion was not based on an 

assessment of Kevin’s particular rehabilitative needs. She agreed that she 

could “not identify specific therapeutic services that Kevin would be unable to 

take advantage of if committed to DJJ until age 25” and that she did not 

“have the training and expertise to be able to opine Kevin needs ‘X’ program 

and that program is not available at DJJ.” Rather, her opinion “was based 

solely on the fact that this is a serious offense,” and she acknowledged that 

“other than the circumstances of the current offense there [was] nothing that 

[she] identified to suggest that Kevin is a serious danger to the public” and 

“nothing in Kevin’s history to suggest that he is not amenable to 

rehabilitation in [j]uvenile court.” 

Dr. Shields concluded that Kevin showed “significant rehabilitative 

potential.” In explaining this conclusion, Dr. Shields identified several 

factors demonstrating Kevin’s amenability to rehabilitation. During their 

meetings, Kevin seemed “boyish” and “eager to please,” which Dr. Shields 

found unusual compared to his experience with other older boys at juvenile 

hall. Indeed, it became “quickly apparent” to Dr. Shields that Kevin did not 

exhibit any signs of antisocial behavior he typically saw when evaluating 

other minors, including unwillingness to interact, disrespectful language, and 
28

resistance to cooperating. Psychological testing confirmed this impression, as 

it did not show any signs that Kevin was developing an antisocial character. 

To the contrary, Dr. Shields found Kevin to be “exquisitely receptive to the 

input of authority figures . . . [and] the prospect of services that might be 

available to him,” characterizing him as “not an individual who is going to 

inhibit the rehabilitative process.” 

Dr. Shields observed that Kevin’s family environment was supportive 

and positive, without any indications of “ongoing criminality” or the 

condoning of delinquency. Kevin had excellent relationships with his family 

members and was trusted with the significant responsibility of caring for

young children. Kevin described being taught good values, including hearing 

from his parents that it was important to learn from one’s mistakes.

Specifically, Kevin’s avoidance of gang involvement indicated his family’s 

positive influence on his morals. 

Dr. Shields also found Kevin’s positive employment history at the Boys 

& Girls Club to be significant, especially because it offered the chance for 

another adult outside the family to observe Kevin’s character and 

responsibility. Dr. Shields testified, “I can’t think of another individual I’ve 

evaluated in a transfer hearing for whom that could be said, that . . . they 

have that extent of sustained employment and dedication to what they are 

doing.” 

Kevin’s performance at juvenile hall demonstrated his amenability to 

rehabilitation as well. His grades showed marked improvement once he 

entered a structured setting, which Dr. Shields testified was unusual, since 

“typically the way that [minors] perform in the community-based setting is 

going to be indicative of how they perform in the [j]uvenile [h]all setting.” In 

addition, aside from the two fights early in his time there, Kevin exhibited 
29

“prosocial” behavior in juvenile hall. Dr. Shields found it particularly 

significant that Kevin was willing to meet with a therapist, because it showed 

his “openness to the input . . . of adults in a rehabilitative way. [¶] . . . [¶] 

Many kids who are much more criminally oriented or psychopathically 

developing, if you will, are going to stay as far away from those people [as] 

they can, and if they do interact with those people it’s been in my experience 

[in] a very negative way. But we don’t see that from Kevin.” 

Kevin’s remorse over Harley’s death also indicated to Dr. Shields that 

Kevin could be rehabilitated. Kevin stated that he “felt badly for what 

happened” and recognized the crime’s negative impact on Harley’s family. 

Dr. Shields explained that it was “a positive sign” for “an adolescent to be 

able to express genuine feeling with noticeable and appropriate shifts in their 

emotional expression or their tone,” and Kevin did not “ma[k]e light of [the 

crime] . . . or distance[] himself from responsibility.” 

Finally, Dr. Shields performed a juvenile risk assessment that showed 

Kevin posed a low risk of future violent behavior. Dr. Shields noted that the 

assessment did not account “to any significant degree” for the nature of the 

subject’s current offense, which research showed was not “a significant 

predictor of recidivated violence.” As Dr. Shields explained, although 

“common sense would tell us that . . . someone who commits a very violent, 

serious offense . . . must be a very, very dangerous individual,” in fact even 

“perpetrators of the most severely violent behavior, if they are not 

antisocially predisposed . . . or do not have psychopathic character, or some 

other factor that would suggest probability for violence, then the risk for 

reoffense in those cases is actually quite low.” 

The juvenile court deemed the rehabilitation criterion “the most 

significant” factor in its decision to grant the prosecution’s transfer motion. 
30

Based on DJJ’s “seven-year baseline” for the offense, the approximately 45-

day “delay getting individuals to DJJ,” the need to release individuals 90 to 

120 days before juvenile court jurisdiction expires at age 25, and Kevin’s age 

of 18 and a half years at the time of the hearing, the court calculated that “by 

the time [Kevin] were to get to DJJ, . . . [there] would be . . . well less than 

seven years,” or even “under six years,” remaining for Kevin “to be able to 

engage in the services at DJJ.” Even though the court agreed that Kevin had 

done well in juvenile hall, it found that the rehabilitation criterion “favor[ed]

transfer to adult court” because he would spend less than seven years in DJJ.

Ultimately, the court concluded that despite Kevin’s “very good upbringing” 

and the lack of “warning signs leading up to this,” he had “a side to him that 

is extremely dangerous and [it did not] think that the community [could] be 

safe if he is tried in juvenile court.” 

2. Discussion

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); C.S., supra, 29 Cal.App.5th at p. 1031.)

Separately, a DJJ regulation in effect for decades establishes “[a] parole 

consideration date interval of seven years” when a minor is committed to DJJ 

for various offenses, including murder. (Cal. Code Regs., tit. 9, § 30807 

[formerly Cal. Code Regs., tit. 15, § 4951].) Thus, “as a general rule, a minor 

confined for committing first degree murder is eligible for parole 

consideration at least every seven years.” (In re R.O. (2009) 176 Cal.App.4th 
31

1493, 1498, fn. 6.) Although “[a] parole consideration date represents, from 

its date of establishment, an interval of time in which a ward may reasonably 

and realistically be expected to achieve readiness for parole[,] . . . [i]t is not a 

fixed term or sentence, nor is it a fixed parole release date.” (Cal. Code Regs., 

tit. 9, § 30815, subd. (a).) To the contrary, “[a] parole consideration date may 

be adjusted by the Board [of Juvenile Hearings] in response to the individual 

training and treatment needs of a ward.” (Id., § 30815, subd. (g).) Indeed, as 

amici curiae point out, the Board is required “to discharge the minor ‘as soon 

as in its opinion there is reasonable probability that he or she can be given 

full liberty without danger to the public.’ ” (R.O., at p. 1498, fn. 6, quoting 

§ 1765, subd. (b).) 

Kevin claims that the juvenile court erred in treating the “seven-year 

baseline” for murder as establishing a “minimum rehabilitation period.” He 

argues that the seven-year period addresses parole eligibility, not 

rehabilitation, and his eligibility for parole before age 25 does not affect 

“whether, based on his individual needs, risk and protective factors, attitude, 

intelligence, and demonstrated amenability to treatment, he can be 

rehabilitated within the allotted time.” The People respond that the juvenile 

court “was within [its] rights to infer that this period of time was indicative of 

how long [Kevin] might need to be at [DJJ]” and that “[t]he seven-year 

baseline was a useful guide for the [c]ourt in assessing the time needed to 

rehabilitate a minor who . . . committed murder.” 

We agree with Kevin that the parole consideration period does not 

establish a minimum rehabilitation period. The People do not cite any legal 

authority for the proposition that a juvenile court may rely on the seven-year 

period to reach any conclusions about what a particular minor’s rehabilitative 

needs and prospects are. If anything, presuming that a minor who 
32

committed murder will take at least seven years in DJJ to rehabilitate is 

inconsistent with section 707, since it necessarily disfavors juvenile 

treatment for those, like Kevin, who are accused of committing murder at 

age 17. (See J.N., supra, 23 Cal.App.5th at p. 724.) Without more, the fact 

that juvenile court jurisdiction may expire before a minor is considered for 

parole is immaterial in evaluating section 707’s rehabilitation criterion.12

Kevin further argues that in focusing on the seven-year period, the 

juvenile court “failed to adequately address whether [he] could be 

rehabilitated prior to the expiration of juvenile court jurisdiction—the actual 

question posed by the [rehabilitation] criterion.” According to him, “the 

prosecution failed to present any evidence as to what efforts would be 

necessary to rehabilitate [him], what programs exist in the juvenile system 

geared toward addressing [his] rehabilitative needs, and any reason why [he] 

could not avail himself of these programs or be rehabilitated in the time 

allotted.” He claims insufficient evidence therefore supports the juvenile 

court’s determination that the rehabilitation criterion weighed in favor of 

transfer. Again, we agree.

“If the possibility that [DJJ] might have to treat a ward of the juvenile 

court beyond the age of his [or her] majority is the determinative factor in the 

court’s decision that the minor is unfit [for treatment as a juvenile], there 

must be substantial evidence in the record that successful treatment might 

require the extra time.” (Jimmy H. v. Superior Court (1970) 3 Cal.3d 709, 

12 As a result of this conclusion, we find it unnecessary to address 

Kevin’s contention that the juvenile court also abused its discretion by 

discounting the possibility of a commitment past age 25 under section 1800, 

which permits DJJ to petition to retain control of a minor who “would be 

physically dangerous to the public because of the person’s mental or physical 

deficiency, disorder, or abnormality that causes the person to have serious 

difficulty controlling his or her dangerous behavior.” 
33

715.) “Expert witnesses may testify on the availability of treatment 

programs in the juvenile court system and the amenability of the minor to 

those programs. [Citation.] In those cases where the juvenile court might 

decide treatment as a juvenile would be in the minor’s best interest, the court 

could still find the minor ‘unfit if those experts testified that rehabilitation 

might require treatment beyond the date of his [or her] mandatory 

discharge.’ ” (J.N., supra, 23 Cal.App.5th at pp. 721–722, quoting Jimmy H., 

at p. 715.) 

In J.N., the Fourth District Court of Appeal held that insufficient 

evidence supported the juvenile court’s determination that a minor accused of 

murder “was not an appropriate candidate for treatment in the juvenile 

justice system under this criterion.” (J.N., supra, 23 Cal.App.5th at pp. 721–

722.) Despite recognizing that the minor “ ‘ha[d] come a long way in 

custody,’ ” the juvenile court determined that the fact that only three years 

remained before its jurisdiction expired weighed in favor of transfer. (Id. at 

p. 721.) At the transfer hearing, however, “the prosecution did not present 

any expert testimony concerning the programs available, the duration of any 

of the programs, or whether attendance would rehabilitate [the minor] before 

termination of the juvenile court’s jurisdiction. There was no evidence that 

demonstrated existing programs were unlikely to result in [the minor’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 

[him].” (Id. at p. 722.) As a result, the finding that the minor was unsuitable 

for treatment in juvenile court constituted an abuse of discretion. (Ibid.)

The prosecution here similarly presented little if any evidence to 

demonstrate what Kevin’s rehabilitative needs were, much less why they 
34

could not be met through a DJJ commitment.13 Dr. Shields testified 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. While the probation officer 

opined that the rehabilitation criterion favored transfer, her opinion was

speculative, as she agreed there was “no way to know” if Kevin would be 

rehabilitated before juvenile court jurisdiction expired. Moreover, she 

candidly agreed her opinion was based on nothing specific about Kevin except 

“the circumstances of the current offense.” Thus, “[e]ven if we were to accept 

the probation officer’s conclusion in the [transfer] report as an expert opinion, 

and we do not, the conclusion under this [criterion] was not supported by the 

evidence.” (J.N., supra, 23 Cal.App.5th at p. 722.) 

In short, while the circumstances of an offense are key to evaluating 

section 707’s gravity criterion, they cannot be the sole basis for concluding 

under the rehabilitation criterion that the minor is unlikely to be 

rehabilitated before juvenile jurisdiction expires. The juvenile court here 

misunderstood this principle by presuming from the gruesomeness of 

Harley’s killing and the subsequent cover-up attempts that Kevin must 

have—despite Dr. Shields’s testimony to the contrary—“a side to him that is

13 The focus at the transfer hearing was on the amount of time Kevin 

might be able to spend in DJJ before the juvenile court’s jurisdiction expired, 

but we note that the rehabilitation criterion is not expressly so limited. (See 

§ 707, subd. (a)(3)(B)(i).) In other words, we see no reason that a minor’s predisposition progress toward rehabilitation while still in juvenile hall should 

be discounted when evaluating the amount of time that rehabilitation in the 

juvenile system will ultimately require. Although Kevin does not raise a 

claim of error related to this focus, upon reevaluation of this criterion the 

juvenile court should be mindful of the time he has already spent in custody 

working toward rehabilitation. 
35

extremely dangerous” such that “the community [could not] be safe if he is 

tried in juvenile court.” We accept that a crime’s circumstances may 

sometimes evince personal characteristics, such as a psychological disorder,

that make a minor less amenable to rehabilitation. But without expert 

testimony to that effect, a court cannot reasonably infer that a minor has an

amorphous “dark side” hindering rehabilitation. Otherwise, the 

rehabilitation criterion would be meaningless in every case in which a 

juvenile committed a grave crime, a result for which we discern no legislative 

support. The circumstances of Harley’s killing were appalling, but they did 

not provide substantial evidence that the rehabilitation criterion favored

Kevin’s transfer to criminal court.

Finally, we address the appropriate disposition. Kevin seeks a writ of 

mandate requiring the juvenile court to (1) “set aside its order . . .

transferring [his] case to criminal court” and (2) “enter a new and different 

order that the transfer motion be denied,” but the parties’ briefs do not 

address whether the second direction is warranted given our determination

that substantial evidence supports two of the statutory criteria on which the 

court relied. 

At oral argument, Kevin’s counsel contended that we should not 

remand the matter to the juvenile court for reconsideration, because the court 

would necessarily abuse its discretion if it again decided to transfer Kevin to 

criminal court. Counsel argued that unless there is some evidence that a 

minor cannot be rehabilitated before the juvenile court’s jurisdiction expires, 

a court cannot lawfully grant a transfer motion. Although the trend in the 

law is clearly toward retaining more minors in juvenile court, nothing in 

section 707 supports the notion that the rehabilitation criterion is now 

determinative regardless of the other criteria that must be considered. Thus, 
36

even though the evidence of Kevin’s amenability to rehabilitation in juvenile 

court is compelling, we are unable to say as a matter of law that “[n]o 

juvenile court could reasonably conclude, based on all of the evidence 

presented,” that he should be transferred to criminal court. (Jones, supra, 

18 Cal.4th at p. 686; cf., e.g., J.N., supra, 23 Cal.App.5th at pp. 720–725 

[ordering superior court “to enter a new order denying the section 707 

petition” where substantial evidence did not support either criterion found to 

weigh in favor of transfer].) As a result, we will remand the matter to the 

court for it to reconsider its decision.

III.

DISPOSITION

Let a peremptory writ of mandate issue directing respondent court to 

(1) vacate its order of November 14, 2019, transferring the matter to criminal 

court, and thereby return Kevin to juvenile jurisdiction, and (2) reconsider its 

ruling on the prosecution’s transfer motion in a manner consistent with this 

opinion. Specifically, the court shall reevaluate the rehabilitation criterion 

under section 707, subdivision (a)(3)(B)(i), and shall then reweigh, upon 

consideration of all five criteria under section 707, subdivision (a)(3), whether

Kevin should be transferred to criminal court. This opinion shall be final in

this court seven days from the date of filing. (Rule 8.490(b)(2)(A).) 
37

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Banke, J.

Kevin P. v. Superior Court A159680
38

Trial Court:

Superior Court of the County of Contra Costa

Trial Judge:

Hon. Barbara Hinton

Counsel for Petitioner:

Robin Lipetzky, Public Defender

Jonathan Laba, Assistant Public Defender

Diana Garrido, Deputy Public Defender

Counsel for Real Party in Interest:

Diana Becton, District Attorney

Kabu Adodoadji, Deputy District Attorney

Amici Curiae for Petitioner:

Markéta Sims, Cyn Yamashiro, Independent Juvenile Defender 

Program

Susan L. Burrell, Pacific Juvenile Defender Center

Kevin P. v. Superior Court A159680