As a criminal defense lawyer with more than 19 years of focus on juvenile delinquency, one of the questions I hear often is “Can children be tried as adults?” The short answer is “yes”, but only when specific conditions are met.
Teens can be tried as adults if:
They are 16 or 17 years old on the date the alleged crime is committed
they are charged with one or more felony offenses
the prosecutor asks the court to transfer the case to adult court.
They are at least 14 years old on the date the alleged crime is committed (children 13 and under cannot be charged as adults in California)
The crime is listed in subdivision (b) of Welfare and Institutions Code section 707: murder (intentionally killing someone), robbery (using force to steal from someone), forcible sexual assault (rape), kidnapping (forcibly moving someone against their will), assault with a firearm (shooting someone), etc.
They are not apprehended before they turn 21.
The majority of 16 and 17-year-olds who come into court facing felony charges remain in juvenile court and are not tried as adults. The District Attorney must make a special motion asking the court to transfer a qualifying case into adult court. This typically happens in two scenarios:
When children commit serious and/or violent crimes like rape, robbery, assault with a firearm, murder, etc.
When children have a long history of committing felonies and seem incapable of being rehabilitated by the juvenile justice system.
California Welfare and Institutions Code section 707(b) lists specific crimes that qualify to be transferred to adult court:
Murder and attempted murder: intentionally killing someone or trying to kill someone
Arson causing great bodily injury to someone: intentionally burning a structure, forest land, or property and causing great bodily injury to someone in the process
Robbery: Using force or threats to steal property off someone’s person
Forcible sexual assault:
• Rape with force, violence, or threat of great bodily harm
• Sodomy by force, violence, duress, menace, or threat of great bodily harm
• Lewd Act on a Child under the age of 14
• Oral copulation by force, violence, duress, menace, or threat of great bodily harm
• Sexual penetration by foreign object
Kidnapping: forcibly stealing, taking, holding, detaining, or arresting any person and carrying them somewhere else.
• For ransom: kidnapping for the purpose of demanding money for a person’s safe return
• For purposes of robbery: kidnapping for the purpose of stealing from the person
• With bodily harm: kidnapping that causes bodily harm to the victim
• For purposes of sexual assault: kidnapping for the purpose of raping the victim, for example
• For purposes of carjacking: kidnapping for the purpose of stealing someone’s car
Assault with a firearm or destructive device: shooting someone or detonating an explosive device with the intent to cause injury
Assault by any means of force likely to produce great bodily injury: hitting someone with a baseball bat, for example, is likely to cause serious injury
Discharge of a firearm into an inhabited or occupied building: shooting into a building where people are present
Crimes against specified elderly and disabled persons: murdering, raping, kidnapping, robbing, carjacking, or burglarizing the home of someone who is over 60 years old or severely disabled
Use of a firearm in the commission of a felony: using a gun to steal from a store, for example
Use of a weapon in the commission of a felony: using a baseball bat or a knife to steal from a store, for example
Intimidation of a witness: using threats or force to convince someone not to go to the police or testify in court
Inducing false testimony by bribery: offering money to a witness in exchange for them lying on the witness stand
Manufacturing, compounding, or selling one-half ounce or more of a salt or solution of a controlled substance listed as a “depressant”: opium, hydrododone, morphine, cocaine, etc.
A violent felony as defined by California Penal Code section 667.5 committed as a gang member or assisting gang members: working with members of a known criminal street gang to commit a violent felony, such as robbery, carjacking, murder, etc.
Escape from custody by force or violence if great bodily injury is intentionally inflicted on an employee of the juvenile facility: intentionally hurting staff members in the process of trying to escape from a juvenile hall or camp
Torture: causing serious injury to someone for the purpose of causing extreme pain and suffering
Aggravated mayhem: purposefully causing permanent disability or disfigurement of a person; removing a member, limb or organ from someone’s body
Carjacking: using a dangerous or deadly weapon to take someone’s car from them while they are in it
Allowing a firearm into a car you own or are driving: letting someone bring a gun into your car or shoot from your car, whether or not you are personally present
Exploding a destructive device with intent to murder: exploding a bomb or other device with the intent to kill someone
Voluntary manslaughter: driving with gross negligence that results in someone’s death, for example
When a case meets the criteria listed above, the District Attorney can make a motion to transfer the youth from juvenile court to adult court. That motion is typically made at the first court appearance or soon thereafter. At that point, the underlying case is put on hold. In other words, the child cannot proceed to trial or plead guilty to the charged offenses until the court decides whether the case will proceed in juvenile court or be transferred to adult court. This process usually takes several months.
When a motion to transfer is made, the court will order the Probation Department to prepare a report on the behavioral patterns and social history of the child. This report will include, among other things, a list of prior criminal offenses committed by the child, information provided by the child’s parents about behavior in the home, academic and disciplinary information from the school district, and any services previously provided to the child by Probation or the Court.
A hearing date will be set for the court to hear evidence from Probation, the District Attorney, and the minor’s counsel. At that hearing, the court must consider the following criteria:
• The degree of criminal sophistication exhibited by the child when he/she committed the crime
• Whether the child can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction (at 21 or 25 years old, depending on the crime)
• The child’s previous delinquent history
• Success of previous attempts by the juvenile court to rehabilitate the child
• The circumstances and gravity of the charges
The District Attorney has the burden to prove at the hearing that the case should be transferred to adult court.
Expert testimony is key to persuading a judge to keep a child in juvenile court.
A psychologist or psychiatrist can evaluate the child to diagnose mental health issues, recommend treatment, and identify mitigating factors that support keeping the case in juvenile court:
• lack of maturity
• lack of intellectual capacity
• lack of an ability to understand risks and consequences of criminal behavior
• mental and emotional health problems at the time of the crimes
• the effect of familial, adult, or peer pressure on the child’s actions
• the effect of childhood trauma on the child’s criminal sophistication
An expert in corrections can identify rehabilitative services available through the juvenile justice system that the child will not receive if transferred to adult court:
• high school education
• substance abuse treatment
• appropriate counseling for childhood trauma
• protection from exploitation by adult inmates
These experts typically provide written reports that can be submitted to the court with a defense brief and can also testify at the transfer hearing.
There are many differences between the juvenile justice system and the adult criminal system. Both systems aim to protect the safety of the public, but the adult system tends to be more punitive and the juvenile system is designed to rehabilitate the minor so that he or she can become a law-abiding and productive member of the family and of the community. For instance:
• Juvenile adjudications do not count as criminal convictions and do not have to be disclosed on job applications. Adult convictions are public record and must be disclosed.
• Youth in juvenile court do not spend time in state prison. Youth convicted in adult court may be sent to the Division of Juvenile Justice or may be sentenced to serve time in state prison.
Developments in psychology and brain science over the years confirm what most parents know instinctively: there are fundamental differences between juvenile and adult minds. Children are less able to control their behavior, appreciate long-term consequences, and stand up to peer pressure. They are less likely to understand the abstract principles of the criminal justice system, making it more difficult for them to have meaningful participation in court proceedings that will impact their future. Because their brains are still developing, teenagers who engage in criminal behavior are likely to grow out of it, even without court intervention. Transfer to adult court can entrench minors in a life of criminal behavior that they otherwise would have matured away from.
Children have different rehabilitative needs than adults. Because the brain changes so much during adolescence, appropriate intervention during these years can have a disproportionately positive impact on rehabilitation. Conversely, a lack of appropriate treatment in adolescence can have a disproportionately negative impact on rehabilitation. Children able to stay in the juvenile system have access to age-appropriate education and rehabilitative services that are designed for them. Children transferred to the adult system may be subject to long sentences in adult prison where they are deprived of age-appropriate services and exposed to increased risk of physical, sexual, and self-harm.
Real-world examples of juveniles facing transfer to adult court from our practice
Teen with substance abuse problem tried as juvenile instead of adult
A 17-year-old with a severe substance abuse problem was placed in a group home. He got swept up in a plan by other minors to steal a staff member’s car and escape. In the process, the staff member was badly beaten. Our client was charged with serious and violent felonies and the District Attorney moved to transfer him to adult court. By thoroughly reviewing his history, we determined that our client had been assessed as needing a significantly higher level of treatment than the group home could provide. The client was mentally and emotionally unwell and experiencing severe withdrawal at the time of the incident. Childhood trauma left him emotionally and mentally immature and unable to make appropriate decisions under stress. The court ultimately found that there were appropriate treatment options available through the juvenile justice system and elected not to transfer him to adult court.
Manipulated 17-year-old girl tried as juvenile
A 17-year-old girl was dating a man in his forties. They were homeless. The adult male masterminded several burglaries of Target stores and sent the girl in to the stores so that she showed up on the surveillance cameras instead of him. Because the girl had a long delinquency record the DA asked to transfer her to adult court. After a hearing the judge kept her in juvenile court because the crimes were not violent and the girl was being manipulated by the adult male she was dating.
Non-violent teen with no prior record tried as juvenile
A17-year-old employee found a gun in the store bathroom. Instead of reporting it, he kept it. He was charged with stealing a gun and the DA moved to transfer him to adult court. Because he did not have a significant prior record and did not use the gun to threaten or hurt anyone, the judge found him suitable for juvenile court.
17-year-old with prior felonies tried as an adult
A 17-year-old boy with a long history of committing felonies robbed a store. He was close to turning 18 and had received multiple services from the juvenile court that had not succeeded in rehabilitating him. The judge transferred his case to adult court.
Juveniles can be tried as adults but only when they meet the criteria for transfer. A long history of delinquency and/or commission of serious felonies may trigger a transfer motion by the District Attorney. Children subject to transfer are entitled to a full hearing on the matter where the District Attorney has the burden to prove that the case should be sent to adult court.