In May, 2023, the Judicial Council adopted several significant revisions to California Rules of Court, rule 5.770, effective September 1, 2023. The first change reflects the legislature’s decision to increase the prosecution’s burden of proof at a transfer hearing to clear and convincing evidence. (Rules of Court, rule 5.770, subd. (b); See In re S.S. (March, 2023) 89 Cal.App.5th 1277, at page 1286 [Clear and convincing evidence standard described as “so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.”].)

The second change involves the addition of a new and independent finding that a juvenile court must make based on clear and convincing evidence before ordering the transfer of a minor to adult court:

“(b) Criteria to Consider (§ 707)

Following receipt of the probation officer’s report and any other relevant evidence, the court may order that the youth be transferred to the jurisdiction of the criminal court if the court finds by clear and convincing evidence each of the following:

(1) The youth was 16 years or older at the time of any alleged felony offense, or the youth was 14 or 15 years of age at the time of an alleged felony offense listed in section 707(b) and was not apprehended prior to the end of juvenile court jurisdiction;

(2) The youth should be transferred to the jurisdiction of the criminal court based on an

evaluation of all the criteria in section 707(a)(3)(A)–(E) as provided in that section; and

(3) The youth is not amenable to rehabilitation while under the jurisdiction of the

juvenile court.” (emphasis added.)

Finally, Rule 5.770 contains an enhanced requirement that the court explain in detail its reasoning for purposes of “meaningful appellate review” in the event that it transfers a minor to adult court. (Rule 5.770, subd. (c) [“If the court orders a transfer of jurisdiction to the criminal court, the court must recite the basis for its decision in an order entered on the minutes. The court must state on the record the basis for its decision, including how it weighed the evidence and identifying the specific factors on which the court relied to reach its decision. This statement must include the reasons supporting the court’s finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.”]

The newly amended Rule of Court 5.770 makes it clear that the juvenile court must focus on a minor’s amenability to rehabilitation and cannot transfer a minor to adult court unless the court finds by clear and convincing evidence that the “youth is not amenable to rehabilitation while under the jurisdiction of the juvenile court.” (Rules of Court, rule 5.770, subd. (c)(3).)

This Rule of Court 5.770 is a clear rebuttal of several statewide District Attorney’s Office arguments that AB2361’s amendments to Welfare and Institutions 707 transfer standards (effective Jan. 1, 2023) did not afford a finding of a youth’s amenability to treatment as stand-alone preclusion to transfer.

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