Charged as Minor or An Adult?

Persons who were under 18 at the time an offense is alleged to have occurred are considered minors under the law. Minors are automatically tried in juvenile court unless the minor is 14 years of age or older and the charge is for a very serious crime such as:

  • first degree, special circumstance murder, with an allegation that the minor personally killed the victim, or
  • an enumerated sex offense in California Penal Code 667.61 (rape with force, violence, or threat of great bodily harm; sodomy with force, violence, or threat of great bodily harm; oral copulation with force, violence, or threat of great bodily harm; lewd and lascivious acts on a child under 14 with force, violence, or threat of great bodily harm; or arson).

Because adult court presents the possibility of longer sentences and sentence to state prison, minors are often better off remaining in the juvenile system. However, a minor in juvenile court does not have the benefit of certain rights adults have, such as drug treatment instead of incarceration for nonviolent drug possession offenses, and so it is sometimes better to proceed in adult court (See “Differences Between Juvenile and Adult Court”). Attorney Thomas Greenberg can counsel you as to whether it is in your interest to proceed in adult or juvenile court.

Other benefits of juvenile court include the fact that a juvenile adjudication cannot be used in later criminal proceedings to enhance the defendant’s sentence either as a juvenile or as an adult. In other words, a juvenile prior for petty theft cannot be used to elevate misdemeanor petty theft to a felony. The exception, however—and this is significant—is when it comes to Three Strikes law, any serious felonies committed when the minor was 16 years or older may count as a strike. Additionally, juvenile history may be used as a factor in denying probation or as aggravation when sentencing is considered for a later criminal conviction.

If the minor is being charged with a sex offense, it is almost always better for that charge to be adjudicated in juvenile court than in adult court. In some cases, juvenile adjudication will require the minor to register as a sex offender, and as with adult convictions, the sex offender registration requirement lasts for life. However, the scope of crimes that would require a juvenile to register as a sex offender is narrower than the scope of crimes that persons charged as adults are required to register for. Furthermore, as the juvenile court has rehabilitation as its express interest, the court is generally more willing to tailor the sentence so that registration is not required. A skilled defense attorney is essential to getting the best outcome.

Differences Between Juvenile and Adult Court

Technically, juvenile court is not part of the California criminal law system—it is part of the civil law system, and cases are adjudicated rather than tried. This distinction is almost meaningless, and juvenile court proceedings look a lot like a criminal trial, however, the juvenile court does explicitly place more emphasis on rehabilitation than adult court does. Other distinctions are discussed below.

Importantly, in juvenile court a minor receives many of the same constitutional protections that an adult would receive. Juveniles have the right to an attorney, the right to confront and cross-examine witnesses, the right against self-incrimination, the right not to be held in custody without being informed of the charges against him or her, and the right to exclude unconstitutionally obtained evidence.

Differences include the fact that in juvenile court there are no juries: judges hear all cases. Juvenile proceedings are ordinarily confidentially and are closed to the public unless the minor and the minor’s parent or guardian request that the hearing be open to the public. The minor and his or her parents or guardians are entitled to be present, and so are other individuals with a sufficient interest in the proceeding (such as victims). When the petition alleges a serious offense, except for certain sex offenses, the public may be present unless the minor can show that public presence would create substantial prejudice.

At the first hearing, the minor will be informed of the charges brought against him or her. (Note: Minors do not have the right to bail or O.R. (own recognizance) release.) If the matter is not resolved at that hearing or afterward by a plea, and neither the court nor the prosecutor dismisses the case, a “jurisdiction hearing” (like a trial) is held.

If the judge finds that the minor committed the crime alleged crime beyond a reasonable doubt, then the judge sustains or “finds true” the petition that the prosecutor filed. Technically, this is not a conviction within the meaning of adult criminal law, however, as discussed below, a sustained petition can have severe short-term and long-term consequences, including being counted as a strike under the Three Strikes law.

The judge may sentence the minor immediately or set a “disposition” hearing to determine the appropriate sentence. Rather than being sentenced to jail or prison, the minor may be “committed” to juvenile hall, a ranch or camp, the Division of Juvenile Justice (formerly California Youth Authority), removed from his or her home and sent to foster care, be required to register as a sex offender, or be placed on probation. The judge may also, or instead, impose sanctions such as: payment of a fine and/or restitution, community service, or attendance in victim impact class. The juvenile court cannot sentence minors to serve a sentence in state prison (In contrast, if tried as an adult, the juvenile might be subject to state prison—and although juvenile court generally can only sentence a minor until the age of 25, the adult court has jurisdiction to sentence a minor to life in prison.)

Another difference between juvenile and adult court is that minors do not have the right to drug treatment instead of incarceration for nonviolent drug possession offenses under Proposition 36. In spite of this difference, it may be in the minor’s interest to proceed in the juvenile system for nonviolent drug offenses because juvenile records automatically become sealed and also because the juvenile court system does not have the authority to require a minor who committed a drug offense to register as a narcotics offender. Attorney Thomas Greenberg is available to counsel you in this decision.

Regarding immigration consequences, adjudications in juvenile court do not count as convictions for immigration purposes, although they may trigger conduct-based grounds to deport a minor or exclude him or her from gaining legal residency or citizenship.

Juvenile Records: Sealed, Destroyed, or Haunting?

Generally, juvenile court records are protected from the public and cannot be obtained by subpoena. Members of the public may inspect juvenile case files only with a court order.

To seal juvenile court records, a petition must be filed by the subject of the records (the minor) or the probation department either five years after the offense occurred or when the subject of the records reaches age 18, whichever is earlier. Generally, the sealing or records is granted only for records of misdemeanors. Adjudications where the minor was found to have committed a serious or violent offense when the minor was age 14 or older are not eligible for being sealed and destroyed. Juvenile courts are required to destroy the records of minors when they reach age 38, unless “good cause” exists for retaining the records. Keep in mind that while the court may destroy its records, other agencies (such as the probation department) may still have records. You can petition other agencies to destroy their records.

While juvenile records are protected from the public, they are not sealed to law enforcement, prosecutors, schools, or the minor and his or her parents or guardian. All of those persons have a right to inspect juvenile case files without a court order. Juvenile case files include far more than just the reports from the court—they includes all papers prepared in preparation for the petition, reports from probation officers and social workers, and any exhibits admitted into evidence.

A juvenile record can also have implications under Three Strikes law. In the Three Strikes context, a record for an offense committed by a minor age 16 or older will likely, but not always, count as a strike if the offense was serious or violent. If you are facing a serious or violent felony, or have a serious or violent offense on your juvenile record, be sure to ask your attorney to check whether the offense you were charged with will count as a strike.

Although a juvenile record can have implications under Three Strikes law, a juvenile record cannot be used as a prior to elevate the charging of a misdemeanor to a felony (some crimes, such as petty theft, may be charged as misdemeanors or felonies, depending on the circumstances and the defendant’s past criminal record).

In yet another twist, if the minor is later convicted of another offense, either as a minor or as an adult, the prosecution can bring in the juvenile record during sentencing such as to claim aggravation or to deny probation.

For juvenile arrest records, any individual who, as a minor, was arrested for a misdemeanor that did not result in conviction (that is, he or she was released for lack of probable cause, the charges were dismissed, or he or she was acquitted) may petition to have the record of arrest sealed and destroyed under California Penal Code section 851.7.

The Rights of Minors to Remain Silent, See a Lawyer, and Call a Parent or Guardian

“Don’t talk to strangers—and if you’re in trouble with the police call me and a lawyer before you answer any questions!”

Minors: you have the right to remain silent—you do not have to answer to interrogation by police, probation officers, teachers, school officials, parents or guardians.

As is true when police arrest adults, police do not need to advise you of their rights to remain silent and speak to an attorney until taking you into custody (in other words, until placing you under arrest). If police talk to you for a while before placing you under arrest, you are likely being detained. While being detained, it is generally a good idea to answer a police officer’s request for identification but not give any further information. Occasionally, police try to get from you information that may suggest your immigration status, such as when your parents came to the United States. Police are not supposed to do this and you do not need to answer these questions.

The police are permitted to request your identification, observe you, and to pat you down if they have a specific basis to reasonably suspect that you have weapons. Police may also search the area surrounding you if they suspect that you may gain immediate access to weapons. Police may not detain you for an unreasonable amount of time without arresting you. After you provide police with identification and before too much time passes, it is fine to ask, “Am I free to go?” Unless the police have probable cause to arrest you or an arrest warrant, and then do arrest you, they must let you go.

If adults (police, probation officers, school administrators, etc.) are pushing you to answer questions, say nothing but: “I’m going to remain silent. I would like to see a lawyer.” Before being questioned by police, minors have the right call both a lawyer and a parent. When taking a minor into custody, police must advise the minor that he or she has the right to make at least two telephone calls—one should be to a parent or guardian and the other to a criminal defense attorney. Minors should always make their two phone calls before answering any questions by police. Parents should consult a criminal defense attorney before advising a minor whether to answer police questions. If the minor or parent requests an attorney and cannot afford one, the court will appoint an attorney.

Attorney Thomas Greenberg has experience and an outstanding record protecting the rights of minors. If you are in trouble, an immediate call to him is well worth it.

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