California Cases February 28, 2024: People v. C.W. (In re C.W.)

Case Description

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NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County, No. FSB803504 Kyle S. Brodie, and Steven Malone, Judges. Remanded with directions.

David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Corrina, Christine L. Bergman, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

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CODRINGTON Acting P. J.

I. INTRODUCTION

When he was 16 years old, defendant and appellant C.W. snuck into then-nine-year-old C.'s bedroom and raped her. The People charged him as an adult, and the trial court denied his request to transfer his case to juvenile court. After a jury convicted him of various sex offenses, the trial court sentenced him to a total aggregate term of 25 years to life, with the remainder of the sentence either concurrent or stayed.

C.W. argues his convictions must be reversed because the trial court erroneously instructed the jury at his competency hearing. The People concede the trial court incorrectly instructed the jury, but contend the error was harmless. C.W. also argues, and the People concede, that his conviction in count two or three as well as his sentence must be vacated and the matter remanded for resentencing. We conclude the trial court's erroneous instruction was harmless but agree with the parties as to the remaining issues.

In supplemental briefing, C.W. argues the juvenile court erroneously found that he should be prosecuted as an adult and thus erroneously transferred his case from juvenile court to criminal court. C.W. contends Assembly Bill No. 2361 (2021-2022 Reg. Sess.) (AB 2361), which amended the statute governing juvenile transfer hearings (Welf. &Inst. Code (WIC), § 707 (section 707)), applies retroactively and requires a remand for a new transfer hearing. The People agree the amended statute applies retroactively, but contend remand is unnecessary because the juvenile court's failure to apply the statute was harmless. We agree with C.W. We therefore conditionally reverse the transfer order

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and remand the matter for a new transfer hearing and further proceedings consistent with this opinion.

II. FACTUAL AND PROCEDURAL BACKGROUND

In 2008, nine-year-old C. woke up to C.W. sitting on her bed. C. asked who he was, and he replied, "'I'm Charlie.'" C. got up and tried to leave the room. C.W., however, picked her up, dragged her back into the bed, and got on top of her. C.W. then removed C.'s underwear, forced her legs open, and tried to insert his penis in her vagina. C.W. covered C.'s mouth with his hand and kept trying to rape her while telling her to "'put it in there.'"

C.'s father noticed her bedroom door was closed, which was against the household rules, and tried to open it, but it was locked. C.'s father told P., C.'s sister who shared the room, to open the door. P. said she couldn't open the door because it was locked. C.W. then jumped out of the bedroom window and ran away. C.'s father called 911, and C.W. was arrested shortly thereafter.

The San Bernardino County District Attorney filed an information charging C.W. with several sex crimes related to his rape of C. Before trial, however, the trial court declared doubt as to C.W.'s competency to stand trial and suspended criminal proceedings. After a competency hearing, a jury found C.W. competent.

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C.W. was tried as charged, but the jury could not reach a verdict, so the trial court declared a mistrial. C.W. was then charged with committing a forcible lewd act on a child (Pen. Code, § 288, subd. (b)(1); count 1), forcible rape (§ 261, subd. (a)(2); count 2); aggravated sexual assault on a child by means of rape (§ 269, subd. (a)(1); count 3); and first-degree burglary with a person present (§ 459; count 4). As to counts 1 and 2, it was alleged that C.W. committed the offenses during the commission of a first-degree burglary within the meaning of section 667.61, subdivisions (a) through (d). A jury found C.W. guilty as charged in March 2016.

In June 2018, after Proposition 57 went into effect, the trial court referred the matter to the juvenile court for a transfer hearing. The juvenile court found C.W. unfit to be treated as a juvenile and returned the matter to adult court.

In September 2021, the trial court sentenced C.W. to prison for a total term of 25 years to life, with the rest of the sentence either concurrent or stayed. In count 4, the court imposed the low term of two years and ordered the term to run concurrently with count 1. The court also stayed imposition of sentence in counts 2 and 3 under section 654.

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III. DISCUSSION

C.W. first argues the trial court erroneously omitted portions of CALCRIM No. 3451 and thus failed to instruct the jury that incompetence to stand trial can result from a "developmental disability" and failed to define that term. The People concede the error, but maintain it was harmless. We agree with the People.

C.W. next argues, and the People concede, that (1) the trial court should have stayed the sentence on count 4 under section 654, (2) the matter must be remanded for resentencing under Assembly Bill No. 518 (AB 518), and (3) his conviction in count 2 (forcible rape) or count 3 (aggravated sexual assault on a child by means of rape) must be vacated because count 2 is a lesser included offense of count 3. We agree with the parties in all respects.

Finally, C.W. argues AB 2361, which amended the statute governing transfers from juvenile court to criminal court (see § 707), applies retroactively and requires a new transfer hearing. The People agree AB 2361 applies retroactively, but contend a remand is unnecessary because the trial court's error in not applying the new law was harmless. We agree with C.W. that a new transfer hearing is required.

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A. Jury Instruction

At C.W.'s competency hearing, the trial court instructed the jury with CALCRIM No. 3451, entitled Present Mental Competence of C.W., as follows: "You must decide whether the defendant is mentally competent to stand trial. That is the only purpose of this proceeding. Do not consider whether the defendant is guilty or not guilty of any crime or whether he was sane or insane at the time that any alleged crime was committed. [¶] The defendant is mentally competent to stand trial if he can do all of the following: [¶] 1. Understand the nature and purpose of the criminal proceedings against him; [¶] 2. Assist, in a rational manner, his attorney in presenting his defense; AND [¶] 3. Understand his own status and condition in the criminal proceedings. [¶] The law presumes that a defendant is mentally competent. In order to overcome this presumption, the defendant must prove that it is more likely than not that the defendant is now mentally incompetent because of a mental disorder . (Italics added.)

The instruction, however, omitted language that mental incompetence could be the result of a "developmental disability" as well as a mental disorder. (See CALCRIM No. 3451 [" . . . that the defendant is now mentally incompetent because of a (mental disorder/developmental disability).].) The instruction also omitted the definition of developmental disability contained in CALCRIM No. 3451, which states, "A developmental disability is a disability that begins before a person is 18 years old and continues, or is expected to continue, for an indefinite period of time. It must be a substantial handicap and does not include other handicapping conditions that are solely

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physical in nature. Examples of developmental disabilities include intellectual disability, cerebral palsy, epilepsy, autism, and conditions closely related to intellectual disability or requiring treatment similar to that required for intellectually disabled individuals."

C.W. contends, and the People concede, that the trial court erred by making these omissions from CALCRIM No. 3451. We agree. (See § 1367, subd. (a) ["A defendant is mentally incompetent . . . if, as a result of a mental health disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner."].)

C.W. argues we must review the error under the federal beyond-a-reasonable doubt standard, not the less stringent California law standard. (See Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818.) The People do not take a position and argue that the error was harmless regardless of which standard applies. We need not decide the issue because we conclude the error was harmless under either standard. (See People v. Huggins (2006) 38 Cal.4th 175, 193-194 [declining to determine standard of prejudice to review error in giving "slightly" different version of CALCRIM No. 3451 predecessor instruction in competency trial and finding error harmless under Chapman and Watson standard].)

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We first note that the parties dispute which statutory definition of "developmental disability" is controlling. In his opening brief, C.W. argued that WIC section 4512, subdivision (a)(1), which applies via section 1370.1, subdivision (a)(1)(H), provides the correct definition. According to that statute, a "developmental disability" is "a disability that originates before an individual attains 18 years of age, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual." (WIC § 4512, subd. (a)(1.) The statute continues, "[developmental disability] shall include intellectual disability ...." ( Ibid .) Because of his low IQ (discussed more below), C.W. argues that he has an "intellectual disability" and, in turn, a "developmental disability" under WIC section 4512, subdivision (a)(1).

The People disagree, pointing to WIC section 4512, subdivision (1)'s definition of "substantial disability." That definition provides that a person has a "substantial disability" only if they have a "significant functional limitation[]" in three or more of seven enumerated "major life activit[ies]." (WIC § 4512, subd. (a)(I)(1)(A)-(G).) In the People's view, C.W. does not suffer "significant functional limitations" in three or more "major life activities," so he does not have a "substantial disability" and thus does not have a "developmental disability."

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In his reply brief, C.W. argues for the first time that the former version of section 1370.1 in effect at the time of his offenses provides the correct definition of "developmental disability." That version stated in relevant part, "[a]s used in this section, 'developmental disability' means a disability that originates before an individual attains age 18, continues, or can be expected to continue, indefinitely and constitutes a substantial handicap for the individual ...." (Former § 1370.1, subd. (a)(1)(H). The provision did not define "substantial handicap," but provided that "[developmental disability] shall include mental retardation." ( Ibid .)

We need not resolve which definition of "developmental disability" applies and whether C.W. had a developmental disability under the controlling definition. C.W. argued in his opening brief that the trial court erred by omitting parts of CALCRIM No. 3451, but did not suggest the omitted language was erroneous in any respect. To the extent he makes that argument for the first time in his reply brief, we deem it waived. (See People v. Newton (2007) 155 Cal.App.4th 1000, 1005.) We therefore will consider only whether the trial court's error in omitting the subject parts of CALCRIM No. 3451, as that is the only claim of instructional error C.W. raised in his opening brief. (See ibid .)

C.W. argues that, by omitting language from CALCRIM No. 3451, the trial court (1) failed to instruct the jury that he could be incompetent to stand trial because of a developmental disability and (2) failed to define "developmental disability." We find the error harmless beyond a reasonable doubt for several reasons.

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First, the evidence that C.W. suffered from an "intellectual disability" was thin and came only from the testimony of his expert witness, psychologist Dr. Kerry Davis, at the competency trial. Dr. Davis testified that she administered an IQ test on C.W. and his overall score was 61, his verbal scale was 61, his work knowledge was 67, and his ability to repeat a sequence of letters or numbers was 53. According to Dr. Davis, anything under 70 means the person is "intellectually disabled," so C.W.'s scores were in a "significantly delayed range."

But there was strong evidence that C.W. was not intellectually disabled. To begin with, another expert who found C.W. incompetent in 2009, Dr. Edward Pflaumer, did not find that C.W. had a developmental or intellectual disability, but instead found that C.W. was incompetent because of his schizophrenia and adolescent antisocial behavior.

As Dr. Davis acknowledged, intellectual disabilities generally manifest in childhood and remain constant. Other developmental disabilities, such as "cerebral palsy, epilepsy, [and] autism," (CALCRIM No. 3451) also generally manifest in childhood and do not change during a person's life. Here, however, there is no evidence that C.W.'s was diagnosed with an intellectual disability as a child that remained unchanged by the time of his competency trial. In fact, the Inland Regional Center (IRC), which provides services to special needs children, evaluated C.W. when he was three years old and found that he did not qualify for early childhood services because he was "in the low-average-to-borderline range of intellectual functioning."

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What's more, defense counsel never mentioned the term "developmental disability" in his closing argument. ( People v. D'Arcy (2010) 48 Cal.4th 257, 297 [courts may consider defense counsel's closing argument to assess whether instructional error was harmless].) Instead, defense counsel focused the overwhelming majority of his argument on attacking the prosecution's argument that C.W. was malingering and the "three ultimate questions" before the jury, referring to the three capacities enumerated in CALCRIM No. 3451 that a C.W. must possess to be competent to stand trial. And while the prosecutor challenged Dr. Davis's diagnosis that C.W. had schizophrenia, she only briefly argued that C.W. did not have a developmental disability, pointing out that he was never diagnosed with one before Dr. Davis. Like defense counsel, the prosecutor focused her argument predominantly on the evidence of C.W.'s competence and attacking Dr. Davis's conclusion that C.W. was incompetent. The prosecutor repeatedly and emphatically argued that, regardless of C.W.'s diagnosis, there was no evidence that he was incompetent.

In doing so, the prosecutor recounted the strong evidence that C.W. was competent. Dr. Dennis Wallstrom interviewed C.W. and concluded he was malingering given his "suspicious" answers to questions. Although C.W. had admitted to Dr. Davis that he had used drugs and alcohol, he claimed to not know what they were during his interview with Dr. Wallstrom. His responses to Dr. Wallstrom's questions testing his comprehension were unusual, even for people with severe mental disabilities or disorders. For instance, C.W. claimed it takes a person longer to put on a hat than shoes

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and agreed that a person who had died from the flu could catch it again. Dr. Wallstrom testified that almost anyone would get these questions right, which suggested he was malingering, particularly given that C.W.'s answers were inconsistent with C.W.'s previous writings and ability to read. Dr. Wallstrom also asked C.W. to repeat a string of three to seven numbers, yet he claimed he could not remember more than two numbers. When Dr. Wallstrom asked him to repeat one number, he said he could not remember it. According to Dr. Wallstrom, in a sample test of 2,500 administered this number-recall test, "virtually no one . . . could not repeat one number."

And although C.W. may have had a learning disorder, which is not a developmental disability, and sometimes struggled in school, his GPA was a C+ average (2.8) during his freshman and sophomore years of high school. His mother told Dr. Wallstrom that he might have previously had a reading disability, but he was reading nine to 12 books per week while detained.

The prosecutor also pointed to lay testimony. C.W. talked to one of his probation officers at juvenile hall competently about his court proceedings, often optimistically expressing hope that he would be "getting out soon." According to that probation officer, C.W. "loved going to school" at juvenile hall and did "[v]ery well," eventually becoming a teacher's aide. He got high "points" at juvenile hall for good behavior and once regained lost points by writing out 300 standards of proper behavior. C.W. also did well at dominoes, checkers, cards, and Categories, a game in which "[y]ou have to think about things [other players] tell you, and you [guess] what it is."

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In sum, there was strong evidence that C.W. was competent, which was the focal point of the prosecutor's and defense counsel's closing arguments.

Even if the trial court had given the complete version of CALCRIM No. 3451, C.W. still would have had to show that "it is more likely than not that [he] is now mentally incompetent because of a mental disorder/developmental disability." We find it extremely unlikely that the jury, who was instructed that "the only purpose" of the competency trial was for them to decide whether C.W. was competent, would have found him incompetent had they been instructed that incompetence can result from a "developmental disability" and were given CALCRIM No. 3451's definition of that term. After all, the jury found C.W. competent after deliberating, without questions or requests, for only about two to two and a half hours split between about an hour and a half in the late afternoon and 40 minutes the next morning. (Cf. People v. Southard (2021) 62 Cal.App.5th 424, 438-439 [jury deliberating for six hours and asking a question about a contested issue that defense counsel focused on for "pages of his closing argument" suggested it was "a close case"].)

By finding C.W. competent, the jury necessarily found that he could do all three things required under CALCRIM No. 3541. "It would be illogical to find [C.W.] competent [if he was] either incapable of understanding the nature and purpose of the proceeding or unable to assist his [] attorney in a rational manner," or unable to understand his own status and condition in the criminal proceedings, regardless of what caused his incompetence. ( People v. Huggins , supra , 38 Cal.4th at pp. 191-192.)

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Because the jury found C.W. competent, it presumably did not consider or decide whether C.W. was incompetent because of a mental disorder (or developmental disability, or anything else) since there was no need to do so. This causal language in CALCRIM No. 3541 might have been relevant if, for instance, the jury found that defendant was not competent (i.e., he could not do at least one of the things required the instruction), but that his incompetence arose from something other than a mental disorder or developmental disability.

But here, since the jury found C.W. competent, the omission of "developmental disability" in the instruction's causal language would have mattered only if the jury found that (1) C.W. did not "understand the nature and purpose of the criminal proceedings against him," could not "assist, in a rational manner, [his] attorney in presenting [his] defense," and/or could not "understand his own status and condition in the criminal proceedings," (2) his incompetence arose from a "developmental disability," not a "mental disorder," but (3) the instructions did not allow these findings. In our view, no rational jury could have reached these conclusions on this record.

For all of these reasons, we conclude the trial court's erroneous omission of portions of CALCRIM No. 3451 was harmless.

B. Section 654

C.W. argues, and the People concede, that the trial court should have stayed the sentence on count 4, burglary with a person present, under section 654. We agree.

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The court sentenced C.W. on count 1 (forcible lewd acts on a child with the special allegation that the crime was committed during a residential burglary) to a prison term of 25-years to life. The court imposed a 25-year-to-life sentence on count 2 (forcible rape) and a 15-year-to-life sentence on count 3 (aggravated sexual assault on a child), but stayed both those terms under section 654. However, the court imposed a concurrent two-year term on count 4 (burglary).

Section 654 prohibits punishment for multiple crimes arising from a single indivisible course of conduct. If each crime was merely incidental to, or was the means of accomplishing or facilitating one objective, a defendant may be punished only once. People v. Capistrano (2014) 59 Cal.4th 830, 886, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 103-104.) But if a defendant had two or more independent objectives, the defendant may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. ( People v. Harrison (1989) 48 Cal.3d 321, 335.)

Although the burglary and sex crimes involved distinct physical acts, C.W.'s intent and objective underlying all four crimes was to sexually assault C. There was no evidence that C.W. had any other intent or objective. As the prosecutor argued in closing, "Count 4 is burglary. For the first element, that he entered a building, when he entered the building, he intended to commit the rape or lewd act on a child ...." Given the prosecutor's theory of the case and the absence of any evidence C.W. had other

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reasons for entering C.'s bedroom, the trial court should have stayed sentence on count 4. (See People v. Corpening (2016) 2 Cal.5th 307, 313.)

C. AB 518

When C.W. was sentenced, section 654 provided that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." AB 518 recently amended the statute to eliminate the requirement requiring a trial court to punish a defendant under the provision providing for the longest potential term of imprisonment and makes the choice a discretionary one. (Stats. 2021, ch. 441, § 1.)

We agree with the parties that the amendment applies retroactively. ( People v. Sek (2022) 74 Cal.App.5th 657, 673-674; People v. Mani (2022) 74 Cal.App.5th 343, 379380.) We also agree with the parties that the matter should be remanded for resentencing to allow the trial court to decide whether to stay C.W.'s sentence on counts 1 or 2 instead of the shorter terms on counts 3 and 4.

D. Conviction on Count 2 or Count 3

C.W. contends that forcible rape as charged in count 2 is a lesser-included offense of aggravated sexual assault of a child as charged in count 3. Because he cannot be convicted of both a greater and lesser offense, C.W. contends one of the convictions must be vacated. The People agree, as do we. (See People v. Vasquez (2021) 63 Cal.App.5th 107, 113-114.) We also agree with the parties that, in light of AB 518's amendment of

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section 654, the appropriate remedy is to remand the matter with directions to vacate either count 2 or 3.

E. AB 2361

Before sentencing, the trial court referred C.W.'s case to the juvenile court to hold a hearing on whether he was a suitable candidate for a juvenile court disposition. When the juvenile court held a hearing on the matter, former section 707 required the prosecution to prove by a preponderance of the evidence that the case should be transferred to a criminal court. (Cal. Rules of Court, rule 5.770(a).) The statute directed the court to consider five criteria outlined in subdivisions (3)(A) through (E): (A) the degree of criminal sophistication, (B) whether the minor, can be rehabilitated prior to the expiration of the juvenile court's jurisdiction, (C) the minor's previous delinquent history, (D) the success of previous attempts by the juvenile court to rehabilitate the minor, and (E) the circumstances and gravity of the offense alleged in the petition to have been committed by the minor. (Former § 707, subd. (a)(3)(A)-(E).) If the juvenile court ordered a transfer to criminal court, it was required to state the basis for its decision in the order. ( Ibid .)

In a thorough, detailed ruling, the juvenile court found that two of the criteria supported juvenile court jurisdiction over C.W. while the remaining three supported transferring him to criminal court. The juvenile court found that factors (C) and (D) weighed in C.W.'s favor, noting that his "delinquency history is relatively minor" (former § 707, subd. (a)(3)(C)) and that he "successfully completed informal probation"

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( id ., subd. (a)(3)(D)). The court, however, found that the prosecution had met its burden of showing that the remaining three factors weighed in favor of transferring C.W. to adult court. The court then found that "on balance," C.W. was not "amenable to the juvenile court," and thus he should be transferred to criminal court.

AB 2361 amended section 707, effective January 1, 2023, to provide: "In order to find that the minor should be transferred to a court of criminal jurisdiction, the court shall find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court. In making its decision, the court shall consider the criteria specified in subparagraphs (A) to (E), inclusive. If the court orders a transfer of jurisdiction, the court shall recite the basis for its decision in an order entered upon the minutes, which shall include the reasons supporting the court's finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court." (Stats. 2022, ch. 330, § 1.)

AB 2361 thus amended section 707 in three ways: "First, in the previous version of section 707, the prosecution's burden was by a preponderance of the evidence. Under the amendment the prosecution's burden is increased to clear and convincing evidence. [¶] Second, under the previous version whether the minor is amenable to rehabilitation while under the jurisdiction of the juvenile court was one of five factors for the court to consider in determining whether the case should be transferred to criminal court. The amendment states it as the ultimate question for the court to decide. Nevertheless, in deciding that question, the amendment requires the court to consider the same five factors

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listed in the previous version. [¶] Finally, the previous version required that if the juvenile court orders a transfer, it shall recite the basis for its decision in the order. The amended statute requires the court to not only recite the basis for its decision, but also the reasons supporting the court's finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court." ( In re E.P. (2023) 89 Cal.App.5th 409, 416, italics added.) Taken together, the first two amendments thus "require[] the juvenile court to consider all five factors [in section 707, subdivisions (A) through (E)] together in determining whether the minor is amenable to rehabilitation." ( Id . at p. 417.) These amendments "significantly change how the juvenile court must analyze the evidence to determine whether to transfer [a] minor to a court of criminal jurisdiction." ( In re S.S. (2023) 89 Cal.App.5th 1277, 1293.)

The parties agree, as do we, that these amendments apply retroactively to C.W.'s non-final case. ( In re E.P. , supra , 89 Cal.App.5th at p. 416; In re S.S. , supra , 89 Cal.App.5th at pp. 1288-1289.) We therefore must remand the matter only if it is reasonably probable that C.W. would receive a more favorable result if the juvenile court applied amended section 707 on remand. ( In re S.S. , supra , at p. 1289.) We agree with

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C.W. that it is reasonably probable and thus a remand is appropriate. ( Ibid .; see also In re E.P. , supra , at p. 416.)

To begin with, former section 707 required the prosecution to prove the minor should be prosecuted as an adult by a preponderance of the evidence while amended section 707 requires the prosecution to make that showing by clear and convincing evidence. This more demanding standard requires "'a finding of high probability.'" ( Conservatorship of O.B. (2020) 9 Cal.5th 989, 998.) Although the court found it "unlikely" that C.W. could be rehabilitated, the court did not indicate there was a "high probability" he could not be rehabilitated as amended section 707 now requires. (See Conservatorship of O.B. , supra , at p. 998.) A higher burden of proof therefore may have tipped the scales in C.W.'s favor on this factor, which is the central focus under amended section 707.

What's more, "proper analysis of [the amenability to rehabilitation] criterion generally requires 'expert testimony concerning the programs available, the duration of any of the programs, or whether attendance would rehabilitate [the minor] before termination of the juvenile court's jurisdiction.'" ( In re S.S. , supra , 89 Cal.App.4th at p. 1291.) While C.W. provided expert testimony from a former deputy director of the Department of Juvenile Justice (DJJ) who opined that there was "no question" that C.W. could be rehabilitated within the proscribed time limits, the prosecution presented no such expert testimony. Instead, the prosecution relied on C.W.'s probation officer, who had "no idea" whether DJJ's "sex behavior treatment program" was a "good program"

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and who was unfamiliar with DJJ's "mental health program." Although the juvenile court found the prosecution satisfied its burden on the second factor-whether the minor can be rehabilitated before the juvenile court's jurisdiction terminates-there is a reasonable probability that the court might find otherwise under the more demanding standard imposed by amended section 707.

Second, amended section 707 "makes 'amenab[ility] to rehabilitation' the ultimate determination." ( In re S.S. , supra , 89 Cal.App.5th at p. 1288.) Although the five criteria the court must consider under both versions of section 707 are the same, the amended version requires the juvenile court to consider the factors "through the lens of amenability to rehabilitation." ( Ibid .)

Here, however, the court found C.W. was not a suitable candidate for juvenile court treatment after finding three factors weighed in the prosecution's favor while two went the other way. This potentially could suggest that the court found C.W. should be prosecuted in criminal court because more factors weighed against him. Doing so is inconsistent with amended section 707's mandate that the juvenile court "consider all five factors together in determining whether the minor is amenable to rehabilitation," which is the "ultimate question" under the amended statute, whereas it was one distinct factor under the prior version of the statute. ( In re E.P. , supra , 89 Cal.App.5th at p. 417.) Moreover, nothing in the court's ruling suggests that the court found that the three factors

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in the prosecution's favor weighed heavily against C.W. (Cf. People v. Zabelle (2022) 80 Cal.App.5th 1098, 1115 [remanding for resentencing in part because trial court "did not indicate whether its decision . . . was (or was not) a close call"].) Instead, the court found that, "on balance," those factors weighed against the two in C.W.'s favor. We therefore conclude C.W. "is entitled to a new fitness hearing so that the court can determine, considering all five factors, whether E.P. is amenable to treatment." ( Ibid .)

IV. DISPOSITION

C.W.'s sentence is vacated and the matter is remanded to the trial court with directions to vacate either count 2 (forcible rape) or count 3 (aggravated sexual assault on a child by means of rape), sentence C.W. on the remaining counts, and exercise its discretion under section 654 as to which of those counts will be stayed.

The juvenile court's April 30, 2021 order transferring C.W.'s case to criminal court is conditionally reversed. After the trial court resentences C.W. as directed, the court shall refer the case to the juvenile court for a hearing on whether it would have transferred the case to the criminal court applying the current law. If the juvenile court determines it would not have transferred the case to the criminal court applying the current law, it shall treat C.W.'s convictions as juvenile adjudications and order an appropriate disposition. If the juvenile court determines it would have transferred the case to the criminal court applying the current law, it shall transfer the case to the criminal court, and C.W.'s convictions and sentence shall be reinstated as of that date.

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The trial court is then directed to send an amended abstract of judgment to the Department of Corrections and Rehabilitation.

We concur: FIELDS J., RAPHAEL J.