CO Code § 19-2.5-802 (2021)
2021 Colorado Code|Title 19 - Children's Code|Article 2.5 - The Colorado Juvenile Justice System|Part 8 - Direct Filing and Transfer Hearings|§ 19-2.5-802. Transfers

     The juvenile court may enter an order certifying a juvenile to be held for criminal proceedings in the district court if:   A petition filed in juvenile court alleges the juvenile is:   Twelve or thirteen years of age at the time of the commission of the alleged offense and is a juvenile delinquent by virtue of having committed a delinquent act that constitutes a class 1 or class 2 felony or a crime of violence, as defined in section 18-1.3-406; or    Fourteen years of age or older at the time of the commission of the alleged offense and is a juvenile delinquent by virtue of having committed a delinquent act that constitutes a felony; and       After investigation and a hearing, the juvenile court finds it would be contrary to the best interests of the juvenile or of the public to retain jurisdiction.       A petition may be transferred from the juvenile court to the district court only after a hearing as provided in this section.    If the crime alleged to have been committed is a felony defined by section 18-8-208, and no other crime is alleged to have been committed and the juvenile has been adjudicated a juvenile delinquent for a delinquent act that constitutes a class 4 or 5 felony, then the charge for the crime may not be filed directly in the district court, but the juvenile court may transfer the charge to the district court pursuant to subsection (1)(a) of this section.      If a juvenile is convicted in cases in which criminal charges are transferred to the district court pursuant to this section, the district court judge shall sentence the juvenile either: (d) (I) If a juvenile is convicted in cases in which criminal charges are transferred to the district court pursuant to this section, the district court 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 not eligible 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 in cases in which criminal charges are transferred to 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 19-2.5-801, the juvenile shall be remanded to juvenile court for sentencing pursuant to this article 2.5.    In the case of a person who is sentenced as a juvenile pursuant to this subsection (1)(d), 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    Section 19-2.5-1127, regarding aggravated juvenile offenders.       The court in its discretion may appoint a guardian ad litem for a juvenile following the transfer of charges to the district court pursuant to this section.    When a juvenile is sentenced pursuant to this article 2.5, the juvenile's conviction shall be adjudicated as a juvenile delinquency adjudication.    For purposes of this subsection (1)(d), “violent juvenile offender” has the same meaning as defined in section 19-2.5-1125 (3).       Whenever a juvenile under the age of fourteen years is sentenced pursuant to section 18-1.3-401 as provided in subsection (1)(d) of this section, the department of corrections shall contract with the department of human services to house and provide services to the juvenile in a facility operated by the department of human services until the juvenile reaches the age of fourteen years. On reaching the age of fourteen years, the juvenile must be transferred to an appropriate facility operated by the department of corrections for the completion of the juvenile's sentence.       After filing charges in the juvenile court but prior to the time that 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 section 19-2.5-801. Upon the filing or indictment in the district court, the juvenile court no longer has jurisdiction over proceedings concerning the charges.    At the transfer hearing, the court shall consider:   Whether there is probable cause to believe that the juvenile has committed a delinquent act for which waiver of juvenile court jurisdiction over the juvenile and transfer to the district court may be sought pursuant to subsection (1) of this section; and    Whether the interests of the juvenile or of the community would be better served by the juvenile court's waiving its jurisdiction over the juvenile and transferring jurisdiction over the juvenile to the district court.         The hearing must be conducted as set forth in section 19-1-106, and the court shall make certain that the juvenile and the juvenile's parents, guardian, or legal custodian have been fully informed of their right to be represented by counsel.    In considering whether to waive juvenile court jurisdiction over the juvenile, the juvenile court shall consider the following factors:   The seriousness of the offense and whether the protection of the community requires isolation of the juvenile beyond that afforded by juvenile facilities;    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 juvenile's maturity, as determined by considerations of the juvenile's home, environment, emotional attitude, and pattern of living;    The juvenile's record and previous history;    The likelihood of the juvenile's rehabilitation by use of facilities available to the juvenile court;    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 twice previously adjudicated a delinquent juvenile for delinquent acts that constitute felonies;    Whether the juvenile was previously adjudicated a juvenile delinquent for a delinquent act that constitutes a crime of violence, as defined in section 18-1.3-406;    Whether the juvenile was previously committed to the department of human services following an adjudication for a delinquent act that constitutes a felony;    Whether the juvenile is sixteen years of age or older at the time of the offense and the present act constitutes a crime of violence, as defined in section 18-1.3-406;    Whether the juvenile is sixteen years of age or older at the time of the offense and has been twice previously adjudicated a juvenile delinquent for delinquent acts against property that constitute felonies; and    Whether the juvenile used, or possessed and threatened the use of, a deadly weapon in the commission of a delinquent act.       The amount of weight to be given to each of the factors listed in subsection (4)(b) of this section is discretionary with the court; except that a record of two or more previously sustained petitions for delinquent acts that constitute felonies or a record of two or more juvenile probation revocations based on acts that constitute felonies establish prima facie evidence that to retain jurisdiction in juvenile court would be contrary to the best interests of the juvenile or of the community.    The insufficiency of evidence pertaining to any one or more of the factors listed in subsection (4)(b) of this section is not in and of itself determinative of the issue of waiver of juvenile court jurisdiction.       Written reports and other materials relating to the juvenile's mental, physical, educational, and social history may be considered by the court, but the court, if so requested by the juvenile, the juvenile's parent or guardian, or other interested party, shall require the person or agency preparing the report and other material to appear and be subject to both direct and cross-examination.      If the court finds that its jurisdiction over a juvenile should be waived, it shall enter an order to that effect; except that such order of waiver is null and void if the district attorney fails to file an information in the criminal division of the district court within five days after issuance of the written order of waiver, exclusive of Saturdays, Sundays, and court holidays. Upon failure of the district attorney to file an information within five days of the issuance of the written order of waiver, exclusive of Saturdays, Sundays, and court holidays, the juvenile court shall retain jurisdiction and shall proceed pursuant to this article 2.5.    As a condition of the waiver of jurisdiction, the court in its discretion may provide that a juvenile shall continue to be held in custody pending the filing of an information in the criminal division of the district court. Where the juvenile has made bond in proceedings in the juvenile court, the bond may be continued and made returnable in and transmitted to the district court, where it must continue in full force and effect unless modified by order of the district court.       If the court finds that it is in the best interests of the juvenile and of the public for the court to retain jurisdiction, it shall proceed with the adjudicatory trial pursuant to part 9 of this article 2.5.     History. Source: L. 2021: Entire article added with relocations,(SB 21-059), ch. 136, p. 618, § 2, effective October 1; (1)(d) R&RE,(HB 21-1091), ch. 175, p. 956, § 4, effective October 1.    Editor's note:    This section is similar to former § 19-2-518 as it existed prior to 2021.    Section 7 of chapter 175 (HB 21-1091), Session Laws of Colorado 2021, provides that the act repealing and reenacting subsection (1)(d) takes effect only if SB 21-059 becomes law and takes effect upon the effective date of HB 21-1091 or SB 21-059, whichever is later. HB 21-1091 took effect May 24, 2021, and SB 21-059 became law and took effect October 1, 2021.     ANNOTATION   Law reviews. For note, “The Expanding Scope of Prosecutorial Discretion in Charging Juveniles as Adults: A Critical Look at People v. Thorpe”, see 54 U. Colo. L. Rev. 617 (1983). For article, “New Juvenile Justice Laws Increase Options for Youth”, see 42 Colo. Law. 37 (April 2013).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   Rules of procedure governing section. This section is governed by the rules of juvenile procedure and by the rules of civil procedure if there is no applicable rule of juvenile procedure. Stroh v. Johnson, 194 Colo. 411 , 572 P.2d 840 (1978).   Former § 19-1-104 (4)(a) (now this section) is not unconstitutional as denying due process of law. People v. Moseley, 193 Colo. 256 , 566 P.2d 331 (1977).   Former § 19-1-104 (4)(a) does not constitute a violation of substantive due process nor an equal protection violation. Statute is a valid exercise of prosecutorial discretion and it is not unreasonable to treat certain juvenile offenders differently from others. People v. Hughes, 946 P.2d 509 (Colo. App. 1997).   Former § 19-1-104 (4)(a) does not constitute an unlawful delegation of legislative power to the judiciary. People v. Moseley, 193 Colo. 256 , 566 P.2d 331 (1977).   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, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (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, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (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).   Jurisdiction transferable by juvenile court. Only under certain narrowly described circumstances may the juvenile court in a delinquency proceeding enter an order certifying the child to be held for criminal proceedings in the district court. I.R. v. People, 171 Colo. 54 , 464 P.2d 296 (1970).   Discretion of court in transfer hearing. The design of this section is to permit the juvenile court, in case of a less serious felony, to determine in a transfer hearing whether, in the best interests of the accused juvenile, the case should be transferred to the criminal side of the court; but in those circumstances where a more serious felony is charged, as set forth in former § 19-1-104 (4)(b) (now this section), no such discretion lies in the court to retain the case in the juvenile side of the court when the district attorney elects to have the case transferred for trial as a criminal action. People v. Dist. Court, 191 Colo. 28 , 549 P.2d 1317 (1976); People v. Thorpe, 641 P.2d 935 (Colo. 1982).   To transfer jurisdiction from juvenile court to district court, the trial court must determine the following: (1) Whether there is “probable cause” to believe that the juvenile committed the offense for which the prosecution seeks a waiver of jurisdiction; and (2) whether it would be contrary to the best interests of the juvenile or the public to retain jurisdiction over the child. People v. Lee, 989 P.2d 777 (Colo. App. 1999).   The eight factors the court must consider in determining the best interests of the juvenile and public are as follows: (1) The seriousness of the offense and whether the protection of the community requires isolation of the juvenile beyond that afforded by juvenile facilities; (2) whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; (3) whether the alleged offense was against persons or property, greater weight being given to offenses against persons; (4) the maturity of the juvenile as determined by considerations of the juvenile's home, environment, emotional attitude, and pattern of living; (5) the record and previous history of the juvenile; (6) the likelihood of rehabilitation of the juvenile by use of facilities available to the juvenile court; (7) the interest of the community in the imposition of a punishment commensurate with the gravity of the offense; and (8) the impact of the offense on the victim. People v. Lee, 989 P.2d 777 (Colo. App. 1999).   Transfer to district court was appropriate, even though alleged offenses were against property rather than a person, where the court found the following factors: (1) The offenses were committed in a premeditated and willful manner; (2) defendant was more mature than his chronological age; (3) the interest of the community in the imposition of punishment commensurate with the offenses supported transfer because the school building that was the object of the arson was important to the community; and (4) in light of the historic nature of the building and the risk to the lives of the firefighters who extinguished the blaze, the impact of the offense on the victim was quite serious. People v. Rivera, 968 P.2d 1061 (Colo. App. 1997).   Court considers interest of child or public. At the hearing provided for in this section the juvenile court may consider only whether it would be contrary to the best interests of the child or of the public to retain jurisdiction over the child. If the court finds that a child should be held for criminal proceedings in the district court, it shall enter an order certifying that fact and transfer the case to the district court. Maddox v. People, 178 Colo. 366 , 497 P.2d 1263 (1972).   The test under subsection (3)(b) is whether the interests of the juvenile or the community would be better served by the juvenile court's waiving its jurisdiction. People v. Rivera, 968 P.2d 1061 (Colo. App. 1997).   Appearance waives personal service. The voluntary appearance of juvenile's mother and her participation in the transfer hearing constitutes a waiver of her right to personal service. People v. District Court, 183 Colo. 101 , 515 P.2d 101 (1973).   The probable-cause phase of a transfer hearing is equivalent to a preliminary hearing. Thus, the case law on preliminary hearings applies to the probable-cause phase of transfer hearings. People v. Juvenile Court, 813 P.2d 326 (Colo. 1991); People v. Hayes, 923 P.2d 221 (Colo. App. 1995).   Juvenile not entitled to another determination of probable cause. A juvenile who was transferred to the district court from the juvenile court, after a transfer hearing where probable cause as to the offenses charged was determined, was not entitled in the district court to another determination of probable cause in the form of a preliminary hearing. People v. Flanigan, 189 Colo. 43 , 536 P.2d 41 (1975).   Due process does not require that the evidence supporting a transfer in a juvenile proceeding be clear and convincing. People in Interest of A.D.G., 895 P.2d 1067 (Colo. App. 1994).   Nor is it necessary that the factors in support of transfer clearly and convincingly outweigh the factors in support of retaining jurisdiction. People in Interest of A.D.G., 895 P.2d 1067 (Colo. App. 1994).   Evidence sufficient to meet probable cause standard. To meet the standard of probable cause, the prosecution need only present evidence sufficient to induce a person of ordinary prudence and caution to entertain a reasonable belief that the defendant committed the crime. People v. Juvenile Court, 813 P.2d 326 (Colo. 1991).   Evidence presented at transfer hearing sufficient to justify waiver of juvenile court jurisdiction. People in Interest of G.A.T., 183 Colo. 111 , 515 P.2d 104 (1973).   A transfer order from juvenile to district court is not a final judgment from which appeal lies. D.H. v. People, 192 Colo. 542 , 561 P.2d 5 (1977).   It is evident from the provisions of subsection (4) of this section and §§ 19-3-106 and 19-3-109 that an order of the juvenile division of the district court waiving jurisdiction is not a final disposition of the action. People in Interest of D.H., 37 Colo. App. 544, 552 P.2d 29 (1976), aff'd, 192 Colo. 542 , 561 P.2d 5 (1977).   But is interlocutory in nature. A transfer order from juvenile to district court is interlocutory in nature and in no sense completely determines the rights of the parties. D.H. v. People, 192 Colo. 542 , 561 P.2d 5 (1977).   Once a transfer order under subsection (1)(a) has been entered, juvenile court has no further jurisdiction unless district court, in its discretion, chooses to remand case to juvenile court for disposition. People v. Armand, 873 P.2d 7 (Colo. App. 1993).   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 19-2-517 (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).   Whenever a juvenile court elects to waive jurisdiction over a child and certifies child to the criminal jurisdiction of a district court, the district court retains jurisdiction over the child, and it may properly impose sentence for any resulting felony convictions. Although this section grants the district court the power to dispose of the case as would a juvenile court, or to remand the case to the juvenile court for disposition, the decision to do so is within the discretion of the district court. People v. Hernandez, 690 P.2d 263 (Colo. App. 1984).   Trial court did not abuse its discretion in transferring jurisdiction of a case from juvenile court to district court despite defendant's arguments that he was not 16 years old at the time of alleged offense, that he had been previously adjudicated a delinquent on only one occasion, and that he had not been previously committed to department of institutions or been adjudicated for any crime of violence. The court properly relied on the fact that defendant had been in juvenile system for offenses involving sexual aggression, that he appeared to pose a threat to children, that he was on probation at the time of present offense, and that alleged offense was a serious one. People v. Armand, 873 P.2d 7 (Colo. App. 1993).   Abuse of juvenile court's discretion. Juvenile court abused its discretion during the transfer hearing by finding sua sponte that there was probable cause to support the lesser-included offense of attempt to commit manslaughter rather than attempt to commit first degree murder as charged by the people. People v. Juvenile Court, 813 P.2d 326 (Colo. 1991).   Under subsection (1)(d)(I), the court may sentence a defendant as an adult or, in its discretion, as a juvenile or remand the case to juvenile court unless the individual falls within one of the classifications of juveniles who must be sentenced as adults. People v. Rivera, 968 P.2d 1061 (Colo. App. 1997).   Subsection (1)(d)(1) requires that a juvenile who is convicted of a crime of violence be sentenced pursuant to § 18-1-105 . Because assault in the second degree under § 18-3-203 (1)(g) is a per se crime of violence under § 16-11-309 , defendant's conviction under that statute is considered a conviction for a crime of violence and therefore the court had no discretion to impose a juvenile disposition but, rather, was required to impose sentence under § 18-1-105 (9) and (9.7). People v. Lee, 989 P.2d 777 (Colo. App. 1999).   Applied in People v. Dist. Court, 199 Colo. 197 , 606 P.2d 450 (1980); People v. Thorpe, 641 P.2d 935 (Colo. 1982); People v. Zamora, 13 P.3d 813 (Colo. App. 2000); People v. Hoang, 13 P.3d 819 (Colo. App. 2000).