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, which is also paid for by the county. Cal. Penal Code § 987.2(a)(3) (2020). Certain counties have lists of conflict counsel from which the court is to choose. See, e.g., Sonoma Cty. Super. Ct. Local Rules of Ct. R. 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. Cal. Welf. & Inst. Code § 634.3(a)(1)-(2) (2020).
Some standards also exist at the county level. For example, in San Bernardino 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.” Cal. Super. Ct., San Bernardino Cty., Local R. Ct., R. 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 or delineating that right.
In California, youth in delinquency proceedings have the right to counsel “at every stage of the proceedings, including post-dispositional hearings,” and the counsel remains the same “unless relieved by the court on the substitution of other counsel or for cause.” Cal. R. Ct., R. 5.663(c); see also Cal. Welf. & Inst. Code § 634.6 (2020). “A minor who is the subject of a juvenile court hearing . . . has the right to be represented at such hearing by counsel of his own choice or, if unable to afford counsel, has the right to be represented by counsel appointed by the court.” Cal. Welf. & Inst. Code § 679 (2020).
The right to counsel specifically includes:
- Detention hearings, Welf. & Inst. Code § 633 (2020);
- Hearing when the petition is read. Welf. & Inst. Code § 700 (2020);
- Status violation and delinquency proceedings. Welf. & Inst. Code § 634 (2020);
- Post-dispositional phase. Welf. & Inst. Code § 634.3(a)(3) (2020);
- Appeals, R. Ct., R. 8.403(a).
Determination of Indigence
If the youth or their parent or guardian would like counsel but cannot afford it, the court may appoint counsel. “In a case in which the minor is alleged to [have committed certain offenses], the court shall appoint counsel for the minor if he or she appears at the hearing without counsel, whether he or she is unable to afford counsel or not, unless there is an intelligent waiver of the right of counsel by the minor.” Cal. Welf. & Inst. Code § 634 (2020).
Waiver of Counsel
In California, a youth may waive their 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 youth’s waiver of the right to counsel was knowing and voluntary. People v. Lara, 432 P.2d 202, 219 (Cal. 1967). 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.” People v. Lara, 432 P.2d 202, 218 (Cal. 1967).
California neither authorizes nor prohibits the use of bail in juvenile court by statute or court rule.
When and how the court may decide to detain a youth or otherwise place restrictions on the youth’s freedom is defined by statute and court rules. In California, a detention hearing generally must occur as soon as possible 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(b) (2020). Provisions for the detention of youth are found in Cal. Welf. & Inst. Code §§ 625-641, 657 (2020).
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. “In appeals of proceedings . . . the child is entitled to court-appointed counsel.” Cal. R. Ct., R. 8.403(a); see also Cal. R. Ct., R. 5.663(c) (“A child is entitled to have the child’s interests represented by counsel at every stage of the proceedings, including post-dispositional hearings. Counsel must continue to represent the child unless relieved by the court on the substitution of other counsel or for cause.”).
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a young person who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In California:
- Juvenile court has jurisdiction over offenses alleged to have been committed after a child’s 12th birthday (except in limited offenses) and prior to a child’s 18th birthday. Welf. & Inst. Code § 602 (2020);
- The court may retain jurisdiction over a youth until the age of 21 and, in some cases, up to age 25. Welf. & Inst. Code § 607(a) (2020). See also § 607(b)-(g) (2020);
- The court may retain jurisdiction over a youth until the age of 21 and, in some cases, up to age 25. Welf. & Inst. Code § 607(a) (2020). See also § 607(b)-(g) (2020).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults.
- If a youth is charged with an offense under § 602 and is 16 years of age or older, “the district attorney or other appropriate prosecuting officer may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction.” Welf. & Inst. Code § 707(a) (2020);
- California has a set procedure by which if a youth has been “found an unfit subject to be dealt with under the juvenile court law,” and certain criteria are met, all future charges against them will be automatically prosecuted in adult criminal court. Welf. & Inst. Code § 707.01(a)(3) (2020). (Note: at the time this page was last updated, this provision had been found unconstitutional by a lower court and was pending appeal; separately legislation was pending to amend this statute.).
Involvement with the delinquency system can affect a youth’s employment, housing, and educational opportunities, leaving the young person with tremendous hurdles as they transition to adulthood. NJDC worked with local partners in California to create a youth and family-friendly guide that provides general information about the collateral consequences of juvenile court involvement, how to overcome these hurdles, and resources to assist in reducing the harm of having a juvenile record.
The NJDC Collateral Consequences Page provides more information about collateral consequences of juvenile court involvement.
State Race Statistics
The Office of Juvenile Justice and Delinquency Prevention (OJJDP) provides juvenile justice profiles for all fifty states and the District of Columbia. Specifically, the data compares the Black, non-Hispanic proportion of the youth population of each state, with the national average, as well as the Hispanic proportion of the youth population of each state with the national average. The data also provides the ratio of youth of color to white youth in residential placement in each state and compares it with the national average.
OJJDP Juvenile Justice State Profiles can be accessed here.
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.