Category Archives:Criminal Law


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Juvenile to be Tried as Adult

The Orange County district attorney’s office announced on Tuesday that teenager Jesse Shockey,  accused of murdering a 19-year-old man during a fight in a Huntington Beach park, will be tried as an adult.  Shockey, 16, of Garden Grove, is being charged with one felony count of murder and a sentencing enhancement for the personal use of a deadly weapon.  If he is convicted, he faces a maximum sentence of 26 years to life in state prison.

In most cases, when a minor is accused of committing a crime in California the minor is adjudicated within the juvenile delinquency system. However, in serious cases, the law allows (and sometimes requires) the minor be tried as an adult in adult criminal court.

A minor tried in adult court faces the prospect of a lengthy sentence in adult prison with adult offenders.   At worst, a minor adjudicated within the juvenile system faces commitment to the California Youth Authority until the age of 25.

In the state of California, juveniles can be prosecuted as adults in several ways.  One way is when a prosecutor makes a request and a judge approves.  Another way is when a juvenile commits a serious crime.

If the prosecutor wants to charge a minor as an adult, whether or not the minor can remain in juvenile court comes down to what a judge decides during the minor’s fitness hearing.  A fitness hearing is a legal proceeding where a juvenile court judge decides whether a minor who has been accused of violating a criminal law is “fit” for the juvenile court system.  The judge will look at five factors, including the seriousness of the alleged crime, to determine whether the minor is likely to benefit from the rehabilitative services of juvenile delinquency court.  If the judge decides that the minor is “fit” for the juvenile system, the minor stays in juvenile court.  If the judge decides that the minor won’t benefit from those services, the minor gets transferred to adult court.

Another way a juvenile can be prosecuted as an adult is dependent on the severity of the alleged crime.  Under Proposition 21, prosecutors have the discretion to charge a juvenile as an adult if a serious crime was allegedly committed.   The law says the minor must be tried in adult court in cases of murder with special circumstances, if the prosecutor alleges that the minor personally killed the victim.  Additionally, in the following sex offenses, if the prosecutor alleges that the minor personally committed the offense and other extenuating circumstances: rape with force, violence or threat of great bodily harm; spousal rape with force; violence or threat of great bodily harm; forcible sex in concert with another; lewd and lascivious acts on a child under 14 with force, violence or threat of great bodily injury; forcible sexual penetration, sodomy or oral copulation by force, violence or threat of great bodily injury.

The gate to to nowhere - Juvenile Court on New...

Nevertheless, minors are never eligible to receive the death penalty.   The United States Supreme Court made this clear in the 2005 case of Roper v. Simmons holding that such a penalty for a juvenile constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.  In 2010, the nation’s highest court further clarified in Graham v. Florida that a minor convicted of a non-homicide crime cannot be sentenced to “life without parole” (LWOP).  California courts are conflicted over the issue of whether a minor can constitutionally be sentenced to an “effective life sentence,” such as 110 years, but the California Supreme Court has agreed to review the issue in a gang-related case out of Los Angeles involving attempted murder.
If you or a loved one is a juvenile and is facing a criminal charge, it is important that you speak with an experienced juvenile crimes attorney.  Contact the Orange and Riverside County Criminal Law firm of Don  Ho, LLP immediately for assistance on building your defense.
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Is it murder if you don't remember?

David Del Toro of Eagle Rock, California, was found guilty of killing a woman in his house and convicted to a charge of second-degree murder. Del Toro, 54, was a former Los Angeles fire captain. The victim, Jennifer Flores, was an acquaintance of Del Toro’s ex-roommate. Del Toro testified that when he found out Flores was homeless, he offered to let her stay in his home overnight.

He claims he drank heavily that night and does not remember large portions of the night, but admitted to grabbing her after getting into a shouting match, but he testified that he did not injure her. The Deputy District Attorney questioned his testimony, arguing that if Del Toro did not remember large portions of the night, how he knew for certain that he did not harm Flores.

So how could the prosecution be successful in procuring a guilty verdict when one of the elements of the crime of second-degree murder is intent to kill? If Del Toro claims that he never showed any intent because he does not remember most of the night, is that valid proof that he never had the intent to kill Flores? In most instances, it is not. Just because a person cannot remember an event does not preclude the possibility that the event did not happen. If someone gets drunk and attempts to drive and causes an accident, they are found to be liable for their actions, regardless if they remember or not. A similar principle applies here – Del Toro does not make the argument that someone else committed the crime, only that he does not remember committing it himself. That should not preclude him from being found guilty.


The Orange County law firm of Do Ho, LLP can assist you with murder or any other criminal charge.
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