Metropolitan News-Enterprise


Monday, November 9, 2020


Page 1


Court of Appeal:

Judge Can’t Assume Incorrigibility From Gravity of Offense

Man Who, at Age 17, Allegedly Stabbed Victim 38 Times, Causing Death, Might Be Suitable for Treatment in Juvenile Court System, Opinion Says; Declares Lack of Susceptibility to Rehabilitation Can’t Be Assumed


By a MetNews Staff Writer


A 19-year-old man who was 17 when he allegedly murdered a woman by stabbing her 38 times during the course of a burglary and then attempted to burn her body and her apartment, might be suitable for treatment in the Juvenile Court system, the Court of Appeal held Friday, declaring that a judge erred in transferring him to the criminal court based on an assumption that, in light of the gravity of the crime, he could not be rehabilitated.

The opinion points out that, other than having slain a woman—Kishana Patricia Harley, 38—and committing a burglary, the youth had been a good boy.

Presiding Justice James M. Humes of the First District’s Div. One wrote the opinion. It grants a petition for a writ of mandate directing the Contra Costa Superior Court to vacate Judge Barbara Hinton’s Nov, 14, 2019 order transferring the proceeding against Kevin Norberto-Arama Pineda to the criminal court, to return the matter to the juvenile court, and to make a new determination as to whether a transfer is warranted.

Three Factors

Hinton had found that three of five criteria, under Welfare and Institutions Code §707, militated in favor of a transfer: “[t]he circumstances and gravity of the offense alleged in the petition to have been committed by the minor”; “[T]he degree of criminal sophistication exhibited by the minor”; and “[w]hether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction.”

Humes said substantial evidence supports the first two findings, but not the third.

He pointed to testimony at the transfer hearing by forensic psychologist John Shields who said that although “a very violent, egregious, horrific crime” had been committed, it was not “so indicative” of Pineda’s “character, so grave in nature to suggest that rehabilitation isn’t possible” or “would be so hampered that it would take an indefinite period of time.”

The jurist said of Pineda:

“He was raised by a loving family, had no prior criminal history, suffered little past trauma, and had no significant psychological or behavioral issues. And after his arrest, his behavior was exemplary while he was housed at juvenile hall.”

Pinpoints Error

Humes declared that Hinton conflated the gravity of the crime and lack of susceptibility to rehabilitation. He said she also erred in assuming that because a juvenile tried as an adult for murder would be eligible for parole in seven years, retention in the juvenile system would require a prognosis of rehabilitation within that period.

He wrote:

“[W]hile the circumstances of an offense are key to evaluating section 707’s gravity criterion, they cannot be the sole basis for concluding under the rehabilitation criterion that the minor is unlikely to be rehabilitated before juvenile jurisdiction expires. The juvenile court here misunderstood this principle by presuming from the gruesomeness of Harley's killing and the subsequent cover-up attempts that Kevin must have—despite Dr. Shields’s testimony to the contrary—‘a side to him that is extremely dangerous’ such that ‘the community [could not] be safe if he is tried in juvenile court.’ ”

Substantial Evidence Lacking

Humes continued:

“We accept that a crime's circumstances may sometimes evince personal characteristics, such as a psychological disorder, that make a minor less amenable to rehabilitation. But without expert testimony to that effect, a court cannot reasonably infer that a minor has an amorphous ‘dark side’ hindering rehabilitation. Otherwise, the rehabilitation criterion would be meaningless in every case in which a juvenile committed a grave crime, a result for which we discern no legislative support. The circumstances of Harley's killing were appalling, but they did not provide substantial evidence that the rehabilitation criterion favored Kevin’s transfer to criminal court.”

Pineda’s counsel urged the appeals court to order a remand for an adjudication in the juvenile court, and not for a further hearing on the prosecution’s motion to transfer. Humes denied that request, saying:

“[E]ven though the evidence of Kevin's amenability to rehabilitation in juvenile court is compelling, we are unable to say as a matter of law that ‘[n]o juvenile court could reasonably conclude, based on all of the evidence presented,’ that he should be transferred to criminal court.”

The case is Kevin P. v. Superior Court, 2020 S.O.S. 5340.


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