“Fitness Hearing” to Transfer a Juvenile to Adult Court in California

A fitness hearing (also called a transfer hearing) is a proceeding in California juvenile court where a judge decides whether or not your minor child should be transferred to face criminal charges in adult court.

If the judge decides your child is “fit” for the juvenile system, they stay in juvenile court. If not, your child is transferred to adult court.

In Los Angeles County, youth crimes are now always handled in the juvenile system. They are never transferred to adult court. The information below does not apply to LA County.¹

In this article, our California Criminal Defense Attorneys discuss the circumstances when a child under 18 can be tried in adult criminal court in California. We cover:

• 1. What is a transfer hearing in California juvenile court?
• 2. How does a judge decide whether to transfer my child to adult court?
• 3. For what crimes can my child be tried in adult court?
• 4. Can the court’s decision be appealed?
• 5. Can my child get the death penalty or “LWOP” in California?

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.

If your child is detained in juvenile hall, please visit our related articles on Eastlake Juvenile Hall & Court, Los Padrinos Juvenile Hall & Court, Barry Nidorf (Sylmar) Juvenile Hall & Court, Riverside Juvenile Hall and Orange County Juvenile Hall.

1. What is a transfer hearing in California juvenile court?

A fitness hearing in California cases is where a juvenile court judge decides whether your child – who has been accused of violating a criminal law – is “fit” for the juvenile court system.

If the judge finds by clear and convincing evidence that your child will not benefit from the rehabilitative and educational services of juvenile delinquency court, they get transferred to adult court.

The prosecutor can initiate a transfer hearing when:

• Your child is 16 years or older and is alleged to have committed any felony or a crime listed in W&I Code 707(b);² OR
• Your child was 14 or 15 when they allegedly committed an offense specified in W&I Code 707(b) AND your child was not apprehended until they were 18.³

Prosecuting attorneys most commonly initiate transfer hearings in cases involving Section 707(b) offenses described below.

In terms of timing, the transfer hearing takes place between the detention hearing and the adjudication hearing. We discuss those hearings in our related articles Detention Hearings in California Juvenile Cases and Adjudication Hearings (Trials) in California Juvenile Cases.

The prosecutor must give the minor five court days’ notice of the transfer hearing.⁴

5 criteria for trying a juvenile in adult court.

2. How does a judge decide whether to transfer my child to adult court?

In determining whether your child should remain in juvenile court, the judge will evaluate the following five factors:

1. The degree of criminal sophistication exhibited by your child.
2. Whether your child can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction.
3. Your child’s previous delinquent history.
4. Success of previous attempts by the juvenile court to rehabilitate your child.
5. The circumstances and gravity of the offense alleged in the petition to have been committed by your child.⁵

Let us look at a few examples:

Example:  Sixteen year-old Stacy just got nabbed for shoplifting a pair of costume jewelry earrings. She has no criminal record and is a good student.

The prosecutor may not initiate a transfer hearing under W&I Code 707(a) because shoplifting is not a felony nor is it a 707(b) crime. Instead, Stacy makes one court appearance, and the case gets diverted to probation under W&I Code 654.

Change the facts:  Sixteen-year-old Elliot is arrested for gang-related carjacking and assault causing great bodily injury. He has already been made a ward of the court for battery causing serious bodily injury and sexual battery.

Since Elliot was 16 when he allegedly committed the offenses, the prosecutor would have the authority to ask the court to move him to adult criminal court and charge him with a criminal case, which could lead to a criminal trial.

Note that if your child’s case has been transferred to adult criminal court, they are entitled to a preliminary hearing where the prosecutor has to show probable cause that they committed the crimes they are charged with.

3. For what crimes can my child be tried in adult court?

California prosecutors can initiate a transfer hearing when your child is charged with violating one of the offenses specified in Welfare & Institutions Code Section 707(b). Recall that suspects who were 14 or 15 at the time of the alleged crime may not be transferred to adult court unless they were arrested after turning 18.

Section 707(b) offenses are:

• Murder.
• Arson causing great bodily injury or of an inhabited structure.
• Robbery.
• Rape with force, violence or threat of great bodily harm.
• Sodomy by force, violence or threat of great bodily harm.
• A lewd or lascivious act on a child under 14 with force, violence or threat of great bodily harm.
• Oral copulation by force, violence or threat of great bodily harm.
• Forcible sexual penetration.
• Kidnapping for ransom.
• Kidnapping for purposes of robbery.
• Kidnapping with bodily harm.
• Attempted murder.
• Assault with a firearm or destructive device.
• Assault by means of force likely to produce great bodily injury.
• Discharge of a firearm into an inhabited or occupied building.
• An offense described in Section 1203.09 of the Penal Code against a person who is over 60 or disabled.
• An offense described in Penal Code Section 12022.5 personal use of a firearm or Penal Code 12022.53 pc 10-20-life use a gun and you are done.
• A felony offense in which your child personally used a weapon listed Penal Code Section 16590(a).
• A felony offense described in Penal Code 136.1 pc dissuading a witness or Penal Code Section 137 bribery of a witness.
• Manufacturing, compounding, or selling one-half ounce or more of a salt or solution of a controlled substance specified in Health & Safety 11055(e).
• A violent felony, which also would constitute a felony violation of Penal Code 186.22(b) pc criminal street gang sentencing enhancement.
• Escape, by the use of force or violence, from a county juvenile hall, home, ranch, camp, or forestry camp if great bodily injury is intentionally inflicted upon an employee of the juvenile facility.
• Torture.
• Aggravated mayhem.
• Carjacking.
• Kidnapping for purposes of sexual assault.
• Kidnapping during a carjacking.
• Penal Code Section 26100 pc drive-by-shooting.
• Exploding a destructive device with intent to commit murder.
• Voluntary manslaughter.⁶

4. Can the court’s decision be appealed?

If your child loses the transfer hearing, they will be transferred to adult criminal court and tried according to rules applicable to adults.

If your child wants to challenge the transfer determination, they must file a writ petition no later than 20 days after their first arraignment on the allegations that led to the transfer.⁷

Crimes involving firearms are more likely to be transferred from juvi to adult court.

5. Can my child get the death penalty or “LWOP” in California?

Minors are never eligible to receive the death penalty. The United States Supreme Court made this clear in the 2005 case of Roper v. Simmons, which held that such a penalty for a juvenile constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.⁸

In 2010, the nation’s highest court further clarified in Graham v. Florida that a minor convicted of a non-homicide crime cannot be sentenced to “life without parole” (LWOP).⁹

Helpful Resources

• Center of Juvenile and Criminal Justice – Nonprofit organization that works to reduce society’s reliance on incarceration as a solution to social problems.
• Ella Baker Center Books Not Bars Campaign – Youth-led movement advocating for alternatives to youth incarceration and the redirection of resources from prisons to education and youth services.
• Youth Law Center – Public interest law firm that works to protect the rights of children in the juvenile justice and child welfare systems and to ensure that they receive the necessary support and services for healthy development.
• Juvenile Law Center – Public interest law firm that advocates for rights, dignity, equity and opportunity for youth in the child welfare and justice systems through litigation, appellate advocacy and submission of amicus (friend-of-the-court) briefs, policy reform, public education, training, consulting, and strategic communications.
• Burns Institute For Juvenile Justice & Equity – National nonprofit organization that works to eliminate racial and ethnic disparities in the juvenile justice system through research, advocacy, technical assistance, and training.
• Youth Justice Coalition – Youth-led organization that works to challenge race, gender and class inequality in the Los Angeles County juvenile justice system.
• Fair Sentencing for Youth – National campaign that seeks to end the practice of sentencing children to life in prison without the possibility of parole and to provide sentencing review for those currently serving such sentences.

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