CO Code § 19-2.5-801 (2021)
2021 Colorado Code|Title 19 - Children's Code|Article 2.5 - The Colorado Juvenile Justice System|Part 8 - Direct Filing and Transfer Hearings|§ 19-2.5-801. Transfers

  A juvenile may be charged by the direct filing of an information in the district court or by indictment only if the juvenile is sixteen years of age or older at the time of the commission of the alleged offense and:   Is alleged to have committed a class 1 or class 2 felony; or    Is alleged to have committed a sexual assault that is a crime of violence pursuant to section 18-1.3-406 or a sexual assault under the circumstances described in section 18-3-402 (5)(a); or      Is alleged to have committed a felony enumerated as a crime of violence pursuant to section 18-1.3-406, other than a sexual assault as described in subsection (1)(b) of this section, or is alleged to have committed sexual assault pursuant to section 18-3-402, sexual assault on a child pursuant to section 18-3-405, or sexual assault on a child by one in a position of trust pursuant to section 18-3-405.3; and (c) (I) Is alleged to have committed a felony enumerated as a crime of violence pursuant to section 18-1.3-406, other than a sexual assault as described in subsection (1)(b) of this section, or is alleged to have committed sexual assault pursuant to section 18-3-402, sexual assault on a child pursuant to section 18-3-405, or sexual assault on a child by one in a position of trust pursuant to section 18-3-405.3; and    Is found to have a prior adjudicated felony offense; or       Has previously been subject to proceedings in district court as a result of a direct filing pursuant to this section or a transfer pursuant to section 19-2.5-802; except that:   If the juvenile is found not guilty in district court of the prior felony or any lesser included offense, the subsequent charge must be remanded to the juvenile court; and    If the juvenile is convicted in district court in the prior case of a lesser included or nonenumerated offense for which criminal charges could not have been originally filed by information or indictment in the district court pursuant to this section, the subsequent charge may be remanded to the juvenile court.          If, after a preliminary hearing, the district court does not find probable cause for an offense that may be charged by direct filing, or if the direct file eligible offense is dismissed at a later date, the court shall remand the case to the juvenile court.    Notwithstanding section 19-2.5-802, after filing charges in the juvenile court but before the juvenile court conducts a transfer hearing, the district attorney may file the same or different charges against the juvenile by direct filing of an information in the district court or by indictment pursuant to this section. Upon the filing or indictment in the district court, the juvenile court no longer has jurisdiction over proceedings concerning the charges.      After a juvenile case has been charged by direct filing of information or by an indictment in district court, the juvenile may file in district court a motion to transfer the case to juvenile court. The juvenile must file the motion no later than the time to request a preliminary hearing. Upon receipt of the motion, the court shall set the reverse-transfer hearing with the preliminary hearing. The court shall permit the district attorney to file a response to the juvenile's motion to transfer the case to juvenile court. The district attorney shall file the response no later than fourteen days before the reverse-transfer hearing.    In determining whether the juvenile and the community would be better served by adjudicative proceedings pursuant to this article 2.5 or by proceedings pursuant to title 16, the court shall consider the following factors:   The seriousness of the alleged offense and whether the protection of the community requires response or consequence beyond that afforded by this article 2.5;    Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;    Whether the alleged offense was against persons or property, greater weight being given to offenses against persons;    The age of the juvenile and the maturity of the juvenile, as determined by considerations of the juvenile's home, environment, emotional attitude, and pattern of living;    The juvenile's record and previous history in prior court-related matters;    The juvenile's current and past mental health status, as evidenced by relevant mental health or psychological assessments or screenings that are made available to both the district attorney and defense counsel;    The likelihood of the juvenile's rehabilitation by use of the sentencing options available in the juvenile courts and district courts;    The interest of the community in the imposition of a punishment commensurate with the gravity of the offense;    The impact of the offense on the victim;    Whether the juvenile was previously committed to the department of human services following an adjudication for a delinquent act that constitutes a felony; and    Whether the juvenile used, or possessed and threatened the use of, a deadly weapon in the commission of the delinquent act.       If the district court determines pursuant to subsection (4)(b) of this section that the juvenile and the community would be better served by adjudicative proceedings pursuant to this article 2.5, the court shall enter an order directing that the offenses against the juvenile be adjudicated in juvenile court pursuant to this article 2.5.         If a juvenile is convicted following the filing of criminal charges by information or indictment in the district court pursuant to this section, the district judge shall sentence the juvenile either:   As an adult; except that a juvenile is excluded from the mandatory minimum sentencing provisions in section 18-1.3-406, unless the juvenile is convicted of a class 1 felony or a sex offense that is subject to part 9 of article 1.3 of title 18; or    To the youthful offender system in the department of corrections in accordance with section 18-1.3-407; except that a juvenile is ineligible for sentencing to the youthful offender system if the juvenile is convicted of:   A class 1 felony;    Any sexual offense described in section 18-6-301 or 18-6-302 or part 4 of article 3 of title 18; or    A second or subsequent offense, if the juvenile received a sentence to the department of corrections or to the youthful offender system for the prior offense.          The district court judge may sentence a juvenile pursuant to this article 2.5 if the juvenile is convicted of a lesser included or nonenumerated felony offense for which criminal charges could not have been originally filed by information or indictment in the district court pursuant to this section. If the juvenile is convicted of only a misdemeanor offense or misdemeanor offenses, the court shall adjudicate the juvenile a delinquent and sentence the juvenile pursuant to this article 2.5.    If a juvenile is convicted of an offense that is not eligible for district court jurisdiction pursuant to either this section or section 19-2.5-802, the juvenile must be remanded to juvenile court.       In the case of a person who is sentenced as a juvenile pursuant to subsection (5) of this section, the following provisions apply:   Section 19-2.5-1126 (1)(a), regarding mandatory sentence offenders;    Section 19-2.5-1126 (1)(b), regarding repeat juvenile offenders;    Section 19-2.5-1126 (1)(c), regarding violent juvenile offenders; and    Sections 19-2.5-503 and 19-2.5-1127, regarding aggravated juvenile offenders.       The court in its discretion may appoint a guardian ad litem for a juvenile charged by the direct filing of an information in the district court or by indictment pursuant to this section.    When a juvenile is sentenced pursuant to this article 2.5, the juvenile's conviction must be adjudicated as a juvenile delinquency adjudication.        SOURCE: L. 2021: Entire article added with relocations, (SB 21-059), ch. 136, p. 614, § 2, effective October 1; (1) amended, (SB 21-266), ch. 423, p. 2800, § 16, effective October 1.    Editor's note:    This section is similar to former § 19-2-517 as it existed prior to 2021    Section 47(2)(c) of chapter 423 (SB 21-266), Session Laws of Colorado 2021, provides that the act amending subsection (1) takes effect October 1, 2021, only if SB 21-059 becomes law. SB 21-059 became law and took effect October 1, 2021.     Editor's note:    This section is similar to former § 19-2-517 as it existed prior to 2021.    Section 47(2)(c) of chapter 423 (SB 21-266), Session Laws of Colorado 2021, provides that the act amending subsection (1) takes effect October 1, 2021, only if SB 21-059 becomes law. SB 21-059 became law and took effect October 1, 2021.     ANNOTATION   Law reviews. For article, “Psychological Considerations in Direct Filing”, see 40 Colo. Law. 41 (May 2011). For article, “New Juvenile Justice Laws Increase Options for Youth”, see 42 Colo. Law. 37 (Apr. 2013).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   District attorney may properly invoke concurrent jurisdiction of district court under former § 19-1-104 (4)(b)(II) and former § 19-1-103 (9)(b)(II) in deciding to proceed against a person between the ages of 16 and 18 in district rather than juvenile court. Myers v. Dist. Court, 184 Colo. 81 , 518 P.2d 836 (1974).   Former § 19-1-104 (4)(b)(II) (similar provisions now found in this section) is not an ex post facto law. Myers v. Dist. Court, 184 Colo. 81 , 518 P.2d 836 (1974).   The broad discretion granted to a district attorney by subsection (4)(b)(II) does not deny due process and equal protection of the laws. Myers v. Dist. Court, 184 Colo. 81 , 518 P.2d 836 (1974).   Juvenile court had original and exclusive jurisdiction under former § 19-2-104 (1)(a) in some, but not all, proceedings concerning juveniles alleged to have committed delinquent acts. The former statute contained an exception for cases for which another law limited or removed that court's jurisdiction. It permitted the prosecution to direct file criminal charges against juveniles in district court when specified criteria applied. Under the former statute, the general assembly established circumstances in which juvenile defendants did not have a liberty interest in being tried as juveniles. Therefore, due process did not require that defendant be notified and given an opportunity to be heard before the district attorney direct filed in district court. People v. Perez-Hernandez, 2013 COA 160 , 348 P.3d 451 (decided under former law).   Former § 19-1-104 (4)(b)(II) (similar provisions now found in this section) does not punish a prior adjudication of delinquency, but rather, it provides a mechanism whereby a person between the ages of 16 and 18 may be treated as an adult if such person has a record of juvenile delinquency and is alleged to have committed a felony. Myers v. Dist. Court, 184 Colo. 81 , 518 P.2d 836 (1974).   The direct file statute does not discriminate against a juvenile in district court based on whether it was a direct file or transfer, so the statute does not violate the requirement of uniform operation of laws. Flakes v. People, 153 P.3d 427 (Colo. 2007).   The direct file statute does not violate separation of powers. Prosecutorial discretion balanced by the district court's sentencing discretion is not unconstitutional. Flakes v. People, 153 P.3d 427 (Colo. 2007).   District attorney may properly invoke concurrent jurisdiction of district court under former § 19-1-104 (4)(b)(II) (similar provision now found in this section) and former § 19-1-103 (9)(b)(II) in deciding to proceed against a person between the ages of 16 and 18 in district rather than juvenile court. Myers v. Dist. Court, 184 Colo. 81 , 518 P.2d 836 (1974); People v. Thorpe, 641 P.2d 935 (Colo. 1982).   Defendant's 84-year sentence for nonhomicide crimes committed as a juvenile is not an unconstitutional cruel and unusual punishment under Graham v. Florida, 560 U.S. 48 (2010). Defendant will be eligible for parole when he is 57 years old and thus has a meaningful opportunity for release during his natural lifetime. People v. Lucero, 2013 COA 53 , 410 P.3d 467, aff'd, 2017 CO 49, 394 P.3d 1128, cert. denied, __ U.S. __, 138 S. Ct. 641, 199 L. Ed. 2d 544 (2018).   The U.S. supreme court's holdings in Graham v. Florida and Miller v. Alabama, 567 U.S. 460 (2012), do not apply to aggregate term-of-year sentences imposed for multiple offenses. Lucero v. People, 2017 CO 49, 394 P.3d 1128, cert. denied, __ U.S. __, 138 S. Ct. 641, 199 L. Ed. 2d 544 (2018).   Graham covers lengthy term-of-years sentences as well as sentences designated as life imprisonment without parole. Rainer v. Hansen, 952 F.3d 1203 (10th Cir. 2020).   Graham's holding is limited to offenders convicted of non-homicide offenses. The Graham court used the term “homicide” to refer to crimes causing the victim's death. Rainer v. Hansen, 952 F.3d 1203 (10th Cir. 2020).   Graham therefore applies in a case involving first-degree attempted murder because attempted first-degree murder is not a homicide offense in this state. Rainer v. Hansen, 952 F.3d 1203 (10th Cir. 2020).   Probation is not an option for a juvenile convicted of a crime of violence in adult court as a result of either a transfer or direct file, therefore, there is no equal protection violation. This section states that a juvenile convicted of a crime of violence is not subject to the mandatory minimum provisions in § 18-1.3-406 , but the transfer statute, § 19-2-518 , does not contain similar language. That difference is immaterial to the issue of whether probation is a possible sentence. This section does not permit a probation sentence for a direct file juvenile, it only excludes the juvenile from the mandatory minimum sentence that begins at least at the midpoint of the presumptive range. A court can sentence the juvenile below the midpoint of the presumptive range but still has to sentence the juvenile to incarceration. In a transfer case, the court must sentence the juvenile to incarceration starting at the midpoint of the presumptive range. So, a juvenile convicted of a crime of violence in adult court either as a result of a transfer or direct file must be sentenced to incarceration and thus is not eligible for probation, therefore, there is no equal protection violation. Howard v. People, 2020 CO 15, 458 P.3d 893.   The 2012 amendments do not apply retroactively. Statutes are presumed prospective; the 2012 amendments are not ameliorative, amendatory legislation; and the rule of lenity does not require retroactive application. People v. Godinez, 2018 COA 170 M, 457 P.3d 77.   Allegation of the commission of a violent felony, and not conviction, triggers district court's subject matter jurisdiction under plain language of former § 19-2-805 (1)(a)(II) (A) (now in this section). People v. Hughes, 946 P.2d 509 (Colo. App. 1997).   Criminally negligent homicide is not an enumerated offense for purposes of the direct file statute. The offense is not a per se crime of violence and merely alleging use of a deadly weapon as part of the factual basis does not satisfy the requirement of the crime of violence statute. In addition, the elements of the crime do not include the use, possession, or threatened use of a deadly weapon. People v. Vickers, 168 P.3d 9 (Colo. App. 2007).   For first degree burglary to be enumerated as a crime of violence, and thus to allow a direct filing, the prosecution must allege that defendant used, possessed, or threatened the use of a deadly weapon or caused serious bodily injury. People v. Ball, 22 P.3d 574 (Colo. App. 2001).   District attorney has sole discretion in charging as adult or juvenile. The statutory scheme of former § 19-1-104 (4) (now this section) is clear and vests the determination whether a person shall be charged as an adult or a juvenile solely in the discretion of the district attorney. People v. Thorpe, 641 P.2d 935 (Colo. 1982).   Hearing not required prior to criminal prosecution. A quasi-judicial hearing is not required to be held by the district attorney as a precondition to his determination that a child 14 years of age or older alleged to have committed a crime of violence defined as a class 1 felony shall be prosecuted in a criminal proceeding. People v. Thorpe, 641 P.2d 935 (Colo. 1982).   Charges involving a minor should be resolved in adult court when the requirements of the direct filing statute are satisfied as to any charge. People v. Dalton, 70 P.3d 517 (Colo. App. 2002).   The district attorney may not directly file charges in district court where the identical charges were initially filed in juvenile court and a transfer hearing is pending. J.D.C. v. Dist. Court 18th Jud. Dist., 910 P.2d 684 (Colo. 1996) (decided prior to amendment of § 19-2-104 (1)(b) specifically authorizing direct filing under such circumstances).   Exception to juvenile court's exclusive jurisdiction in cases where prosecution directly files charges. Under the plain language of subsection (2) of this section and §§ 19-2-104 (1)(b) and 19-2-518 (2) , a prosecutor has discretion to proceed charging alleged juvenile offenders who are eligible to be charged as adults by means of a direct filing in district court until such time as the juvenile court actually conducts a transfer hearing. People v. Pino, 262 P.3d 938 (Colo. App. 2011).   Because the conducting of a transfer hearing is the only event that vests the juvenile court with exclusive jurisdiction and the juvenile court had not conducted a transfer hearing before the prosecution directly filed the information, the district court had jurisdiction. People v. Pino, 262 P.3d 938 (Colo. App. 2011).   Additional charges must be prosecuted in same action. When a court has jurisdiction to entertain criminal proceedings against a juvenile under former § 19-1-104 (4)(b)(II) , any additional charges arising out of the same act or series of acts can and must be prosecuted in that same action, even though they do not rise to the seriousness of class 3 felonies. People v. Jiminez, 651 P.2d 395 (Colo. 1982).   When a juvenile is charged in Denver district court as a result of a direct file and the offense that permitted the direct file is dismissed, the Denver district court no longer has subject matter jurisdiction over the additional charge that was not eligible for direct file. The Denver juvenile court has exclusive jurisdiction over that charge. People v. Sandoval, 2016 COA 57 , 383 P.3d 92 (decided under law in effect in 2007).   Defendant's conviction in the Denver district court, therefore, is a nullity and must be vacated. People v. Sandoval, 2016 COA 57 , 383 P.3d 92 (decided under law in effect in 2007).   The direct file statute does not provide for mandatory adult sentences for unenumerated offenses. The district court retains its discretion to sentence juveniles found guilty of unenumerated charges as either adults or juveniles as an exercise of its general jurisdiction over juvenile and criminal matters. Flakes v. People, 153 P.3d 427 (Colo. 2007); People v. Vickers, 168 P.3d 9 (Colo. App. 2007).   A district court sentencing a juvenile found guilty of unenumerated offenses must make a finding of why the court is treating the juvenile as an adult or as a juvenile and must explain the chosen sentence. Flakes v. People, 153 P.3d 427 (Colo. 2007); People v. Vickers, 168 P.3d 9 (Colo. App. 2007).   A child under 18 may be charged with a felony only as provided in former § 19-1-104 (4) (now this section). People ex rel. Terrell v. Dist. Court, 164 Colo. 437 , 435 P.2d 763 (1967); People ex rel. Rodello v. Dist. Court, 164 Colo. 530 , 436 P.2d 672 (1968); I.R. v. People, 171 Colo. 54 , 464 P.2d 296 (1970); Maddox v. People, 178 Colo. 366 , 497 P.2d 1263 (1972).   A minor pursuant to former § 19-1-104 (4) (now this section) may be tried as an adult. Romero v. Dist. Court, 178 Colo. 200 , 496 P.2d 1049 (1972).   A child under 14 years of age is not held criminally responsible for actions, which if committed by an adult, would constitute a felony. People ex rel. Terrell v. Dist. Court, 164 Colo. 437 , 435 P.2d 763 (1967).   Plain language of statute prior to 2006 amendment was ambiguous as to whether a juvenile must be 14 years of age when delinquent act occurred or when prosecution filed charges. Based upon the stated purpose and legislative intent, a juvenile must have been at least 14 years of age at time delinquent act occurred. Bostelman v. People, 162 P.3d 686 (Colo. 2007).   District court had no jurisdiction to proceed by direct information charging felony against 17-year-old. People ex rel. Rodello v. Dist. Court, 164 Colo. 530 , 436 P.2d 672 (1968).   Measuring two-year period set out in former § 19-2-805 (now this section). The critical two-year period of time as set out in former § 19-2-805 (now this section) is measured from the date of the previous adjudication of delinquency to the date of the commission of the subsequent offense, and not from the previous adjudication to the date of the filing of the information charging defendant with the subsequent offense. People v. Trujillo, 983 P.2d 124 (Colo. App. 1999).   Date child is adjudicated delinquent. For purposes of former § 19-1-104 (4)(b)(II) (now this section), the date upon which one is adjudicated a delinquent child is the date the trial court made its written findings and entered its judgment of delinquency. People v. Alward, 654 P.2d 327 (Colo. App. 1982), cert. dismissed, 677 P.2d 948 (Colo. 1984).   Juvenile court had no jurisdiction to order the placement of a juvenile in the custody of the department of human services when the district court ordered that juvenile held in county jail awaiting trial on charges filed against the juvenile as an adult. People v. Juvenile Court, 915 P.2d 1274 (Colo. 1996).   A trial court sentencing a juvenile on a direct-filed charge of a violent crime retains discretion to impose a sentence to the department of corrections. People v. Espinoza, 990 P.2d 1117 (Colo. App. 1999).   District court had jurisdiction to sentence juvenile as an adult under subsection (6)(c) of this section since the juvenile was eligible for district court jurisdiction under § 19-2-518 (1)(a)(I) (B) as a juvenile delinquent for committing a prior felony. People v. Nelson, 2015 COA 123 , 369 P.3d 733.   Subsection (8) is limited according to the specific provisions in § 19-1-111(2)(a)(I) to (III). The juvenile court is statutorily permitted to appoint a guardian ad litem in delinquency proceedings, and therefore in adult criminal proceedings in the district court initiated by transfer, only upon occurrence of one of three triggering events: (1) No parent or enumerated person functioning in the role of parent appears in the case; (2) the court finds a conflict of interest between the child and parent or person functioning as a parent; or (3) the court makes specific findings that the appointment of a guardian ad litem is necessary to serve the best interest of the child and those findings are included in the court's order of appointment. Ybanez v. People, 2018 CO 16, 413 P.3d 700.   Pursuant to subsection (9), a juvenile's conviction must be adjudicated as a juvenile delinquency adjudication only if the district court chooses to sentence the juvenile to the juvenile justice system. People v. Nelson, 2015 COA 123 , 369 P.3d 733.   Subsection (3)(b)(VI) does not constitute a waiver of a juvenile defendant's psychotherapist-patient privilege. Because the proper inquiry to determine whether there was a waiver of privilege is whether a party injected his or her physical or mental health condition into the case, simply requesting a reverse-transfer hearing does not waive the privilege. Subsection (3)(b)(VI) only requires that the trial court consider mental health records “made available”, that is, voluntarily waived by the privilege holder. People v. Johnson, 2016 CO 69, 381 P.3d 316.   Subsection (3)(b)(VI) does not give a trial court power to order a juvenile defendant to submit to a mental health screening simply by virtue of the juvenile's request for a reverse-transfer hearing. Subsection (3)(b)(VI) requires only that the trial court take into account “relevant mental health or psychological assessments or screenings that are made available to both the district attorney and defense counsel”. A juvenile has a significant interest in the confidentiality of both past and future mental health records. People v. Johnson, 2016 CO 69, 381 P.3d 316.   Section does not grant juvenile defendant the right to disclose privileged information solely for the purposes of reverse transfer. The reverse-transfer hearing and the underlying claims are all one “case” and any privilege waived in one applies to the other. People v. Brown, 2019 CO 50, 442 P.3d 428.   The state provided inmate serving a 112-year sentence for crimes committed when he was a juvenile with the opportunity required by Graham v. Florida through the combination of the Juveniles Convicted as Adults Program and the general parole program. Rainer v. Hansen, 952 F.3d 1203 (10th Cir. 2020).