Juvenile Indigent Defense Delivery System
California provides counsel to indigent youth through a county-based system which includes public defender offices, contract attorneys, and private appointed attorneys. The dominant form of indigent representation is public defender offices. The California Public Defender Association maintains an on-line list of websites for counties with public defenders. Juvenile indigent defense attorneys are paid by the local county. Cal. Welf. & Inst. Code § 218. Where there is a conflict preventing representation by a public defender, the court may appoint defense counsel. Cal. Penal Code § 987.2. Certain counties have lists of conflict counsel from which the court is to choose. See, e.g., Sonoma County Superior Court Local Rules of Court, Rule 8.6.
The California Appellate Projects (CAP) are non-profit law organizations responsible for improving the quality of appellate representation, including appeals taken from delinquency adjudications. A CAP office serves each of California’s appellate districts.
In 2015, the State Legislature passed AB 703, which outlines minimum training requirements for juvenile defense attorneys and recognizes the specialization of the field of juvenile defense. The bill makes clear the role of juvenile defenders and their obligation to provide effective, competent, diligent, and conscientious advocacy of the client’s expressed interests.
Some standards also exist at the county level. For example, in San Bernadino County, “Any attorney representing parties in juvenile matters shall not seek certification of competency and shall not be certified by the Court as competent until the attorney has met minimum standards of competency. An attorney meets the minimum standards where the attorney has either: (a) Represented parties for at least six months in juvenile matters; or (b) Participated in at least eight hours of training or education in juvenile law. The training or education must have addressed Juvenile case law and statutes, the Rules of Court, Judicial Council forms, motions, trial techniques and skills, and writs and appeals. If the attorney seeks certification to represent parties in juvenile dependency matters, the training or education must also have addressed child development, child abuse and neglect, family reunification and preservation, and reasonable efforts.” Superior Court of California, County of San Bernardino, Local Rules of Court, Rule 1692.4.
Juvenile Court Rules
In addition to statutes and case law, juvenile court proceedings are governed by court rules. These are often promulgated at the state level, but may also be passed at the local court level instead of or in addition to statewide rules. California’s juvenile court rules are called the Family and Juvenile Rules. Many counties in California have local rules; these can often be found on the California Courts’ website.
Right to Counsel
Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitution or statutory provisions further expanding upon on or delineating that right.
In California, youth in juvenile court have the right to counsel in status and delinquency proceedings. Cal. Welf. & Inst. Code § 634.
Juveniles have a right to court-appointed counsel on appeal. Cal.Rules of Court, Rule 8.403.
When appearing in court at the detention hearing, the youth must be informed of his or her right to counsel at every stage of the proceedings. Cal. Welf. & Inst. Code §§ 633.
Determination of Indigence
“When it appears to the court that the minor or his parent or guardian desires counsel but is unable to afford and cannot for that reason employ counsel, the court may appoint counsel. In a case in which the minor is alleged to be a [delinquent], the court shall appoint counsel for the minor if he appears at the hearing without counsel, whether he is unable to afford counsel or not, unless there is an intelligent waiver of the right of counsel by the minor; and, in the absence of such waiver, if the parent or guardian does not furnish counsel and the court determines that the parent or guardian has the ability to pay for counsel, the court shall appoint counsel at the expense of the parent or guardian.” Cal. Welf. & Inst. Code § 634.
The court shall continue a hearing on a petition “for not to exceed seven days, as necessary to make an appointment of counsel, or to enable counsel to acquaint himself or herself with the case, or to determine whether the parent or guardian or adult relative is unable to afford counsel at his or her own expense.” Cal. Welf. & Inst. Code § 700.
Waiver of Counsel
In California, a juvenile may waive his or her right to counsel if the waiver is “intelligent.” Cal. Welf. & Inst. Code § 634. A totality of the circumstances test is used to evaluate whether a juvenile’s waiver of the right to counsel was knowing and voluntary. The totality of circumstances test “applies to minors as well as adults, and the age of the defendant is simply a factor, although an important one, to be weighed with many others in determining in any given case whether there has been a knowing and intelligent waiver of counsel.” In re Shawnn F., 34 Cal. App.4th 184, 194 (Cal. App. 5 Dist. 1995).
When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In California, a detention hearing generally must occur as soon as possible, but no later than 48 hours after the child is taken into custody, excluding non-judicial days, after the petition is filed. Cal. Welf. & Inst. Code § 632. Provisions for the detention of juveniles are found in Cal. Welf. & Inst. Code §§ 200 et seq., 625-641, and 657.
The U.S. Constitution and Supreme Court case law are also sources of due process rights beyond local and state statutes and provisions. NJDC’s Detention Page provides more information about detaining youth.
The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues. California statutes list one post-disposition proceeding at which youth have a right to counsel:
- On Appeal. Cal. Rules of Court 8.403.
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a child who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In California:
- No statute specifies the youngest age at which a juvenile can be adjudicated delinquent;
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 18th birthday; after age 18, the youth is charged in adult court, Cal. Welf. & Inst. Code § 602(a);
- Juvenile court can retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 18, Cal. Welf. & Inst. Code §607(a);
- If a juvenile is committed to the California Youth Authority for certain offenses, the juvenile court retains jurisdiction until the offender is 25 years old, Cal. Welf. & Inst. Code § 607(b);
- If a youth is committed to a state hospital or public/private mental health facility for certain offenses, the court may retain jurisdiction until the offender’s 25th birthday. Cal. Welf. & Inst. Code § 607(d).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. California has three ways that juveniles can be prosecuted as adults:
- Discretionary judicial waiver: The juvenile court has original jurisdiction over most juvenile cases, but in certain delineated cases where the child is at least 16 years old at the time of the offense, the state may request that the juvenile court transfer jurisdiction to adult criminal court. The juvenile court must conduct a hearing and consider statutorily listed factors to determine whether to transfer jurisdiction. Cal. Welf. & Inst. Code § 707.
- Statutory exclusion: California has a list of offenses, which if committed by a youth aged 14 or older, require the youth to be criminally prosecuted as an adult. Cal. Welf. & Inst. Code § 602(b).
- Once an Adult, Always an Adult: California has a set procedure by which if a juvenile has been adjudicated delinquent, and certain criteria are met, all future charges against them will be automatically prosecuted in adult criminal court. Cal. Welf. & Inst. Code § 707.01.
NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.
NJDC has not yet conducted an assessment of the juvenile indigent defense system in California. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.