IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

O.G., ) Supreme Court

Petitioner, ) No. S259011
)
v. ) Court of Appeal
) Second Appellate District,
SUPERIOR COURT OF VENTURA ) Div. Six,
COUNTY, ) No. B295555
Respondent; )
) Ventura County
PEOPLE OF THE STATE OF ) Superior Court
CALIFORNIA, ) No. 2018017144
Real Party in Interest. ) Hon. Kevin McGee, Judge
)

APPLICATION OF THE EQUAL JUSTICE INITIATIVE TO

Document received by the CA Supreme Court.

FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE
BRIEF IN SUPPORT OF PETITIONER O.G.

REBECCA P. JONES BRYAN A. STEVENSON*

Cal. Bar No. 163313 Ala. Bar No. ASB-3184-N75B
3549 Camino del Rio S., Ste. D ALICIA A. D’ADDARIO*
San Diego, CA 92108 Ala. Bar No. ASB-7806-A64D
(619) 269-7872 Equal Justice Initiative
[email protected] 122 Commerce Street
Montgomery, AL 36104
(334) 269-1803
(334) 269-1806 (fax)
[email protected]
[email protected]

*admitted pro hac vice

Attorneys for Amicus Curiae

 TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

APPLICATION OF THE EQUAL JUSTICE INITIATIVE TO

FILE AMICUS CURIAE BRIEF . . . . . . . . . . . . . . . . . . . . . 17

AMICUS CURIAE BRIEF OF THE EQUAL JUSTICE

INITIATIVE IN SUPPORT OF PETITIONER O.G. . . . . . 21

Introduction and Summary of the Argument. . . . . . . . . . . 21

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

I. Science Has Demonstrated That Young

Adolescents, Because of Their

Document received by the CA Supreme Court.

Developmental Status, Have Immature
Judgment, Greater Vulnerability to
Negative Influences, and a Heightened
Capacity for Change. . . . . . . . . . . . . . . . . . . . . 22

A. Young Adolescents Have Not

Yet Developed the Capacity
to Make Mature and
Responsible Decisions. . . . . . . . . . . . . . 25

B. Young Adolescents Are

Especially Susceptible to
Risk-Taking Impulses and
Negative Peer Influences. . . . . . . . . . . . 29

C. Young Adolescents Have Not

Yet Begun to Imagine Their
Futures and Thus Have the
Capacity to Change and
Mature. . . . . . . . . . . . . . . . . . . . . . . . . . . 36

2
II. California Law Recognizes the Special
Vulnerabilities and Deficiencies of Young
Adolescents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

A. California Law Recognizes

That Young Adolescents Are
Especially Vulnerable and
Provides Heightened
Protection from Exploitation
and Abuse. . . . . . . . . . . . . . . . . . . . . . . . 41

B. California Law Recognizes

That Young Adolescents Are
Immature, Impulsive,
Relatively Irresponsible, and
Exceedingly Susceptible to
Coercion by Limiting Their
Rights and Responsibilities in

Document received by the CA Supreme Court.

Many Aspects of Life.. . . . . . . . . . . . . . . 47

III. The Distinctive Characteristics of Young

Adolescents Demonstrate That Shielding
Them From Adult Prosecution is
Consistent With and Furthers the Intent
of Proposition 57. . . . . . . . . . . . . . . . . . . . . . . . 52

A. The Characteristics of Young

Adolescents Demonstrate
that Keeping These Youth In
Juvenile Court Promotes
Public Safety, Emphasizes
Rehabilitation, and Reduces
Wasteful Spending on
Prisons. . . . . . . . . . . . . . . . . . . . . . . . . . . 53

B. The Characteristics of Young

Adolescents Demonstrate
that Keeping These Youth in
Juvenile Court is Consistent
with the Transfer Scheme

3
 Under Proposition 57. . . . . . . . . . . . . . . 59

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . 66

PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Document received by the CA Supreme Court.

4
 TABLE OF AUTHORITIES

CASES

In re Barker (2007) 151 Cal.App.4th 347 [59 Cal.Rptr.3d

746] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 52

D.C. v. Railroad (2010) 182 Cal.App.4th 1190 [106 Cal.

Rptr. 3d 399]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Dailey v. Los Angeles Unified Schools District (1970) 2

Cal.3d 741 [470 P.2d 360] . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Eddings v. Oklahoma (1982) 455 U.S. 104 [102 S.Ct. 869,

71 L.Ed.2d 1] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 41

In re Elias V. (2015) 237 Cal.App.4th 568 . . . 41, 44, 46, 47, 48, 53

Document received by the CA Supreme Court.

People v. Flores (2020) 9 Cal.5th 371 [462 P.3d 919] . . . . . . . . . . 44

Gallegos v. Colorado (1962) 370 U.S. 49 [82 S.Ct. 1209, 8

L.Ed.2d 325] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct. 2011

L.Ed.2d 285] . . . . . . . . . . . . . . . . . . . . . . 19, 44, 57, 58, 60, 61

In re Greg F. (2012) 55 Cal.4th 393 [283 P.3d 1160] . . . . . . . . . . 44

J.D.B. v. North Carolina (2011) 564 U.S. 261 [131 S.Ct.

2394, 180 L.Ed.2d 310] . . . . . . . . . . . . . . . . . . . . . . . . . 41, 47

Johnson v. Texas (1993) 509 U.S. 350 [113 S.Ct. 2658, 125
L.Ed.2d 290] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 54

In re Jones (2019) 42 Cal.App.5th 477, 482 [255 Cal. Rptr.

3d 571] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

In re Jose C. (2009) 45 Cal.4th 534 [198 P.3d 1087] . . . . . . . . . . 44

5
In re Joseph H. (2015) 367 P.3d 1 . . . . . . . . . . . . . . . . . . . . . . . . . 46

People v. Lessie (2010) 47 Cal.4th 1152 [223 P.3d 3] . . . . . . . . . . 46

Miller v. Alabama (2012) 567 U.S. 460 [132 S.Ct. 2455, 183
L.Ed.2d 407] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 35, 39, 55

Montgomery v. Louisiana (2016) 136 S.Ct. 718 [193 L.Ed.2d

599] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 35, 55

In re Nunez (2009) 173 Cal.App.4th 709 [93 Cal.Rptr.3d

242] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 48, 52

In re R.O. (2009) 176 Cal.App.4th 1493 [98 Cal. Rptr. 3d

738] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Roper v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183, 161
L.Ed.2d 1] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 39, 54

Document received by the CA Supreme Court.

People v. Soto (2011) 51 Cal.4th 229 [245 P.3d 410, 421-422]. . . 43

Thompson v. Oklahoma (1988) 487 U.S. 815 [108 S.Ct.

2687, 101 L.Ed.2d 702] . . . . . . . . . . . . . . . . 40, 41, 48, 52, 61

STATUTES

25. Welf. & Inst. Code § 607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

25. Welf. & Inst. Code § 1769 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

25. Welf. & Inst. Code §§ 1800 et seq.. . . . . . . . . . . . . . . . . . . . . . 56

Bus. & Prof. Code, § 19921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Bus. & Prof. Code, § 19941 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Bus. & Prof. Code, § 22706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Bus. & Prof. Code, § 25658 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

6
Civ. Code, § 1785.11.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Code Civ. Proc., § 203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Code Civ. Proc., § 1219.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Ed. Code, § 48200. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Ed. Code, § 48232. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Ed. Code, § 49130 [14- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Ed. Code, § 51760.3 [14- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Elec. Code, § 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Elec. Code, § 3009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Document received by the CA Supreme Court.

Evid. Code, § 1027 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Fish & G. Code, § 3031 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Harb. & Nav. Code, § 658.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Health & Saf. Code, § 1283 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Health & Saf. Code, § 1607.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Health & Saf. Code, § 7150.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Health & Saf. Code, § 11361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Health & Saf. Code, § 11379.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Health & Saf. Code, § 12689 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Health & Saf. Code, § 119302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Pen. Code, § 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

7
Pen. Code, § 266h. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Pen. Code, § 266i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Pen. Code, § 266j . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Pen. Code, § 266k . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Pen. Code, § 10.24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Pen. Code, § 261.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 43, 51

Pen. Code, § 272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Pen. Code, § 286 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Pen. Code, § 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Document received by the CA Supreme Court.

Pen. Code, § 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Pen. Code, § 637.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Pen. Code, § 647.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Pen. Code, § 653 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Pen. Code, § 653j . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Pen. Code, § 859.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Pen. Code, § 868.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Pen. Code, § 1346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Pen. Code, § 3042 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Pen. Code, § 7502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Pen. Code, § 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

8
Pub. Contract Code, § 2866 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Pub. Contract Code, § 6108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Pub. Contract Code, § 7321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Pub. Contract Code, § 7321.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Pub. Contract Code, § 7324 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Pub. Contract Code, § 7326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Veh. Code, §§ 12512-12514, 12814.6. . . . . . . . . . . . . . . . . . . . . . . 40

Veh. Code, § 11661.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Veh. Code, § 12512. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 49

Document received by the CA Supreme Court.

Veh. Code, § 12513. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Veh. Code, § 12514. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Veh. Code, § 12814.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Veh. Code, § 21213. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Veh. Code, § 27318. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Veh. Code, § 27360.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Welf. & Inst. Code, § 211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Welf. & Inst. Code, § 625.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Welf. & Inst. Code, § 627 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47

Welf. & Inst. Code, § 706.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Welf. & Inst. Code, § 707 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 60

9
Welf. & Inst. Code, § 883 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Welf. & Inst. Code, § 5585.55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Welf. & Inst. Code, § 11320.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

OTHER AUTHORITIES

Arnett, Reckless Behavior in Adolescence (1992) 12 Dev.

Rev. 339 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Blakemore, Development of the Social Brain in Adolescence

(2012) 105 J. Royal Soc’y Med. 111 . . . . . . . . . . . . . . . . . . . 32

Blakemore & Mills, Is Adolescence a Sensitive Period for

Sociocultural Processing? (2014) 65 Ann. Rev. Psych.
187. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Document received by the CA Supreme Court.

Branche et al., Graduated Licensing for Teens (2002) 30 J.
L. Med. & Ethics 146 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Cal. Dept. of Justice, Juvenile Justice in California (2018) . . . . 61

Cal. Dept. of Justice, Juvenile Justice in California (2017) . . . . 61

Casey, Beyond Simple Models of Self-Control to Circuit-

Based Accounts of Adolescent Behavior (2015) 66 Ann.
Rev. Psych. 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Cauffman & Steinberg, (Im)maturity of Judgment in

Adolescence: Why Adolescents May be Less Culpable
than Adults (2000) 18 Behav. Sci. & L. 741 . . . . . . . . . . . . 25

Chen Chen et al., Regional Homogeneity of Resting-State

Brain Abnormalities in Violent Juvenile Offenders: A
Biomarker of Brain Immaturity? (2015) 27 J.
Neuropsychiatry & Clinical Neurosciences 27 . . . . . . . . . . 62

Cohen & Casey, Rewiring Juvenile Justice: The Intersection

10
 of Developmental Neuroscience and Legal Policy
(2014) 18 Trends Cognitive Sci. 63 . . . . . . . . . . 26, 33, 24, 38

Cohen et al., When is an Adolescent an Adult? Assessing

Cognitive Control in Emotional and Nonemotional
Contexts (2016) 27 Psych. Sci. 549 . . . . . . . . . . . . . . . . . . . 34

Crone & Dahl, Understanding Adolescence as a Period of

Social-Affective Engagement and Goal Flexibility
(2012) 13 Nature Rev. Neuroscience 636 . . . . . . . . . . . . . . 30

Dreyfuss et al., Teens Impulsively React Rather than

Retreat from Threat (2014) 36 Dev. Neuroscience 220 . . . 32

Ellis et al., The Evolutionary Basis of Adolescent Behavior:

Implications for Science, Policy, and Practice (2012)
48 Dev. Psych. 598 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Document received by the CA Supreme Court.

Fagan et al., Be Careful What You Wish For: Legal Sanction
and Public Safety among Adolescent Felony Offenders
in Juvenile and Criminal Court (2007) . . . . . . . . . . . . . . . 56

Farrer et al., Prevalence of Traumatic Brain Injury in

Juvenile Offenders: A Meta-Analysis (2013) 19 Child
Neuropsychology 225 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Feld, Police Interrogation of Juveniles: An Empirical Study

of Policy and Practice (2006) 97 J. Crim. Law &
Criminology 219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Forbes et al., Neural Systems of Threat Processing in

Adolescents: Role of Pubertal Maturation and
Relation to Measures of Negative Affect (2011) 36 Dev.
Neuropsychology 429 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Fox et al., Trauma Changes Everything: Examining the

Relationship Between Adverse Childhood Experiences
and Serious, Violent, and Chronic Juvenile Offenders
(2015) 46 Child Abuse & Neglect 1 . . . . . . . . . . . . . . . . . . . 63

11
Galvan et al., Risk-Taking and the Adolescent Brain: Who is
at Risk? (2007) 10 Dev. Sci. F8 . . . . . . . . . . . . . . . . . . . . . . 30

Geier & Luna, The Maturation of Incentive Processing and

Cognitive Control (2009) 93 Pharmacology,
Biochemistry & Behav. 212 . . . . . . . . . . . . . . . . . . . 23, 27, 29

Giedd et al., Brain Development During Childhood and

Adolescence: a Longitudinal MRI Study (1999) 2
Nature Neuroscience 861 . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Giedd, Structural Magnetic Resonance Imaging of the

Adolescent Brain (2004) 1021 Annals N.Y. Acad. Sci.
77. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Guyer et al., Probing the Neural Correlates of Anticipated

Peer Evaluation in Adolescence (2009) 80 Child Dev.
1000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Document received by the CA Supreme Court.

Halpern-Felsher & Cauffman, Costs and Benefits of a
Decision: Decision-Making Competence in Adolescents
and Adults (2001) 22 J. Applied Dev. Psych. 257 . . . . 25, 28

Herman, TikTok is Rewriting the World, N.Y. Times (Mar.

10, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Kassin, The Psychology of Confessions (2008) 4 Ann. Rev. L.

& Soc. Sci. 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Kelley et al., Risk Taking and Novelty Seeking in

Adolescence (2004) 1021 Annals N.Y. Acad. Sci. 27 . . . . . . 29

Lewis, How Adolescents Approach Decisions: Changes over

Grades Seven to Twelve and Policy Implications
(1981) 52 Child Dev. 538 . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Luna & Sweeney, The Emergence of Collaborative Brain

Function (2004) 1021 Annals N.Y. Acad. Sci. 296 . . . . . . . 28

12
Luna, The Maturation of Cognitive Control and the
Adolescent Brain, in From Attention to Goal-Directed
Behavior (Aboitiz & Cosmelli edits., 2009). . . . . . . . . . 25, 27

Mann et al., Adolescent Decision-Making: The Development

of Competence (1989) 12 J. Adolescence 265. . . . . . . . . 25, 31

Monahan et al., Juvenile Justice Policy and Practice: A

Developmental Perspective (2015) 44 Crime & Just.
577. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Myers, The Recidivism of Violent Youths in Juvenile and

Adult Court: A Consideration of Selection Bias (2003)
1 Youth Violence & Juv. Just. 79 . . . . . . . . . . . . . . . . . . . . 56

Nurmi, How Do Adolescents See Their Future? A Review of

the Development of Future Orientation and Planning
(1991) 11 Dev. Rev. 1 . . . . . . . . . . . . . . . . . . . . . . . . 26, 36, 37

Document received by the CA Supreme Court.

Prop. 57, Public Safety and Rehabilitation Act of 2016
(approved Nov. 8, 2016) § 2 . . . . . . . . . . . . . . . . . . . . . . . . . 53

Redding, Juvenile Transfer Laws: An Effective Deterrent to

Deliquency? (2010) Office of Juvenile Justice &
Delinquency Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Reppucci, Adolescent Development and Juvenile Justice

(1999) 27 Am. J. Cmty. Psych. 307 . . . . . . . 31, 33, 36, 38, 54

Rightmer, Arrested Development: Juveniles’ Immature

Brains Make Them Less Culpable than Adults (2005)
9 Quinnipiac Health L.J. 1 . . . . . . . . . . . . . . . . . . . . . . . . . 27

Scott et al., Brain Development, Social Context, and Justice

Policy (2018) 57 Wash. U. J. L. & Pol’y 13 . . . . . . . . . passim

Scott et al., Young Adulthood as a Transitional Legal

Category: Science, Social Change, and Justice Policy
(2016) 85 Fordham L.Rev. 641 . . . . . . . . . . . . . . . . . . . . . . 30

13
Seagrave & Grisso, Adolescent Development and the
Measurement of Juvenile Psychopathy (2002) 26 Law
& Hum. Behav. 219 . . . . . . . . . . . . . . . . . . . . . . . . . 36, 37, 54

Sen. Com. on Pub. Safety, Analysis of Sen. Bill No. 1391

(2017–18 Reg. Sess.) Feb. 16, 2018 . . . . . . . . . . . . . . . . . . . 54

Shulman et al., The Dual Systems Model: Review,

Reappraisal, and Reaffirmation (2016) 17 Dev.
Cognitive Neuroscience 103 . . . . . . . . . . . . . . . . . . . . . 24, 26

Smith et al., Impact of Socio-Emotional Context, Brain

Development, and Pubertal Maturation on Adolescent
Risk-Making (2013) 64 Hormones & Behav. 323 . . . . . . . . 33

Smith et al., Peers Increase Adolescent Risk Taking Even

When the Probabilities of Negative Outcomes are
Known (2014) 50 Dev. Psych. 1564 . . . . . . . . . . . . . . . . . . . 32

Document received by the CA Supreme Court.

Sowell et al., In Vivo Evidence for Post-Adolescent Brain
Maturation in Frontal and Striatal Regions (1999) 2
Nature Neuroscience 859. . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Sowell et al., Localizing Age-Related Changes in Brain

Structure Between Childhood and Adolescence Using
Statistical Parametric Mapping (1998) 9 NeuroImage
587. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Spear, The Adolescent Brain and Age-Related Behavioral

Manifestations (2000) 24 Neuroscience &
Biobehavioral Rev. 417 . . . . . . . . . . . . . . . . . . . . . . . . passim

Steinberg, Adolescent Development and Juvenile Justice

(2009) 5 Ann. Rev. Clinical Psych. 459 . . . . . . . . . . . . . 23, 38

Steinberg et al., Age Differences in Future Orientation and

Delay Discounting (2009) 80 Child Dev. 28 . . . . . . . . . . . . 39

14
Steinberg & Monahan, Age Differences in Resistance to Peer
Influence (2007) 43 Dev. Psych. 1531 . . . . . . . . . . . . . . . . . 39

Steinberg et al., Age Differences in Sensation Seeking and

Impulsivity as Indexed by Behavior and Self-Report:
Evidence for a Dual Systems Model (2008) 44 Dev.
Psych. 1764. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 39

Scott & Steinberg, Blaming Youth (2003) 81 Tex. L.Rev.

799. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Steinberg, The Influence of Neuroscience on U.S. Supreme

Court Decisions Involving Adolescents’ Criminal
Culpability (2013) 14 Nature Rev. Neuroscience 513 . . . . 34

Steinberg & Scott, Less Guilty by Reason of Adolescence

(2003) 58 Am. Psych. 1009. . . . . . . . . . . . . . . . . . . . . . . 28, 35

Document received by the CA Supreme Court.

Steinberg & Cauffman, Maturity of Judgment in
Adolescence (1996) 20 Law & Hum. Behav. 249. . . . . . . . . 36

Steinberg et al., Psychosocial Maturity and Desistance

From Crime in a Sample of Serious Juvenile
Offenders (2015) Juvenile Justice Bulletin, U.S.
Department of Justice, Office of Juvenile Justice and
Delinquency Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Steinberg, Risk Taking in Adolescence: New Perspectives

from Brain and Behavioral Science (2007) 16 Current
Directions Psych. Sci. 55 . . . . . . . . . . . . . . . . . . . . . 26, 29, 31

Steinberg, Risk Taking in Adolescence: What Changes and

Why (2004) 1021 Annals N.Y. Acad. Sci. 51 . . . . . . . . . . . . 38

Steinberg, Should the Science of Adolescent Brain

Development Inform Public Policy? (2009) 64 Am.
Psych. 739. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Steinberg, A Social Neuroscience Perspective on Adolescent

15
 Risk-Taking (2008) 28 Dev. Rev. 78 . . . . . . 26, 28, 31, 36, 37

Steinberg & Silverberg, The Vicissitudes of Autonomy in

Early Adolescence (1986) 57 Child Dev. 841. . . . . . . . . . . . 31

Sweeten et al., Age and the Explanation of Crime, Revisited

(2013) 42 J. Youth & Adolescence 921 . . . . . . . . . . . . . . . . 39

Tennison & Pustilnik, “And If Your Friends Jumped Off a

Bridge, Would You Do it Too?”: How Developmental
Neuroscience Can Inform Legal Regimes Governing
Adolescents (2015) 12 Ind. Health L.Rev. 533 . . . . . . . . . . 26

Whitford et al., Brain Maturation in Adolescence:

Concurrent Changes in Neuroanatomy and
Neurophysiology (2007) 28 Hum. Brain Mapping 228. . . . 27

Document received by the CA Supreme Court.

16
 IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA

O.G., ) Supreme Court

Petitioner, ) No. S259011
)
v. ) Court of Appeal
) Second Appellate District,
SUPERIOR COURT OF VENTURA ) Div. Six,
COUNTY, ) No. B295555
Respondent; )
) Ventura County
PEOPLE OF THE STATE OF ) Superior Court
CALIFORNIA, ) No. 2018017144
Real Party in Interest. ) Hon. Kevin McGee, Judge
)

APPLICATION OF THE EQUAL JUSTICE INITIATIVE TO

Document received by the CA Supreme Court.

FILE AMICUS CURIAE BRIEF

The Equal Justice Initiative (EJI), through its attorneys

and pursuant to California Rules of Court, rule 8.520, respectfully
applies for leave to file the following Amicus Curiae Brief in
support of Petitioner, O.G.i
Founded in 1989 by Executive Director Bryan Stevenson,
EJI is a private, 501(c)(3) non-profit organization that provides
legal representation to people who have been illegally convicted,
unfairly sentenced, or abused in state jails and prisons. EJI
challenges the death penalty and excessive punishment,

i
No party or counsel for a party authored this brief in whole or in
part, and no counsel or party made a monetary contribution
intended to fund the preparation or submission of this brief. No
entity other than amicus curiae EJI made a monetary
contribution to its preparation or submission.

17
including excessive adult sentences imposed on children, and
provides reentry assistance to formerly incarcerated individuals.
EJI works with communities that have been marginalized
by poverty and discouraged by unequal treatment. EJI is
committed to changing the narrative about race in America. EJI
produces groundbreaking reports, an award-winning wall
calendar, and short films that explore our nation’s history of
racial injustice, and recently launched an ambitious national
effort to create new spaces, markers, and memorials that address
the legacy of slavery, lynching, and racial segregation, which
shapes many issues today.
EJI provides research and recommendations to assist

Document received by the CA Supreme Court.

advocates and policymakers in the critically important work of
criminal justice reform. EJI publishes reports, discussion guides,
and other educational materials, and EJI staff conduct
educational tours and presentations for thousands of students,
teachers, faith leaders, professional associations, community
groups, and international visitors every year.
EJI’s work with children includes providing legal assistance
to juveniles condemned to die in prison; challenging the
placement of youth in adult jails and prisons; and challenging the
prosecution of very young children as adults. This work has
focused especially on young adolescents. EJI has represented
dozens of young adolescents all around the country in challenging
their excessive adult sentences, as well as during resentencing
proceedings and at parole hearings.
EJI was counsel for the petitioners before the United States

18
Supreme Court in Miller v. Alabama (2012) 567 U.S. 460 [132
S.Ct. 2455, 183 L.Ed.2d 407], as well as Sullivan v. Florida, No.
08-7621, the companion case to Graham v. Florida (2010) 560
U.S. 48 [130 S.Ct. 2011, 176 L.Ed.2d 285]. These cases each
involved young adolescents. EJI also filed an amicus brief in
Montgomery v. Louisiana (2016) 136 S.Ct. 718 [193 L.Ed.2d 599],
another case involving children sentenced to life without parole,
which highlighted the cases of two young adolescents.
EJI’s reentry work has also concentrated on the special
needs of people who entered prison before the age of sixteen, who,
because they have never lived outside of prison as adults, face
unique challenges in rejoining society. EJI provides employment,

Document received by the CA Supreme Court.

daily supervision, counseling from licensed mental health
professionals, and educational programming for clients who
entered state prison as children.
The case presently before this Court involves issues
regarding the trial of young adolescents as adults. EJI’s extensive
work with young adolescents in the criminal legal system allows
us to provide this Court with a valuable perspective on these
young people, their developmental incapacities, and their
potential for change and rehabilitation. This expertise is relevant
to the issues presented in this case and will assist this Court in
its decisional process.
For all the foregoing reasons, counsel requests that this
Court grant the Application of the Equal Justice Initiative to File
Amicus Curiae Brief and accept the attached brief in support of
Petitioner O.G. for filing and consideration.

19
Dated: August 6, 2020

Respectfully submitted,

BRYAN A. STEVENSON
Executive Director
ALICIA A. D’ADDARIO
Senior Attorney
Equal Justice Initiative

REBECCA P. JONES
Attorney

By: /s/Rebecca P. Jones

REBECCA P. JONES
Attorney

Document received by the CA Supreme Court.

Counsel for Amicus Curiae

20
 IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA

O.G., ) Supreme Court

Petitioner, ) No. S259011
)
v. ) Court of Appeal
) Second Appellate District,
SUPERIOR COURT OF VENTURA ) Div. Six,
COUNTY, ) No. B295555
Respondent; )
) Ventura County
PEOPLE OF THE STATE OF ) Superior Court
CALIFORNIA, ) No. 2018017144
Real Party in Interest. ) Hon. Kevin McGee, Judge
)

AMICUS CURIAE BRIEF OF THE EQUAL JUSTICE

Document received by the CA Supreme Court.

INITIATIVE IN SUPPORT OF PETITIONER O.G.

Introduction and Summary of the Argument

This case presents the question of whether Senate Bill No.
1391 (Stats. 2018, ch. 1012), which eliminated the possibility of
transfer to adult criminal court for crimes committed when a
minor was 14 or 15 years old, unconstitutionally amended
Proposition 57. The characteristics of 14- and 15-year-olds
demonstrate that preventing transfer of these youths to adult
criminal court is consistent with and furthers the intent of
Proposition 57. Scientific research has shown that young
adolescents have immature judgment, underdeveloped capacity
for self-regulation, particular vulnerability to negative influences
and outside pressures, and heightened capacity for change.
Consistent with this research, California law has long recognized

21
the special vulnerabilities and deficiencies of young adolescents in
numerous contexts. Because of these well-known characteristics
of young adolescents, keeping young teens in juvenile court
furthers Proposition 57’s goals of promoting public safety,
emphasizing rehabilitation, and reducing wasteful spending on
prisons, and is consistent with the transfer criteria within which
Proposition 57 was enacted.
Argument
I. Science Has Demonstrated That Young Adolescents,
Because of Their Developmental Status, Have
Immature Judgment, Greater Vulnerability to
Negative Influences, and a Heightened Capacity for
Change.

Document received by the CA Supreme Court.

Contemporary psychological, sociological, and neurological
studies converge1 to demonstrate that children’s changeability,
immature judgment, underdeveloped capacity for self-regulation,
vulnerability to negative influences and outside pressures, and
lack of control over both their own impulses and their
environment peak during the early teenage years. This is the
onset of the crucial developmental period of adolescence, bringing
radical transformations that include the stressful physical
changes of puberty (increases in height and weight and sex-
related physiology), followed later by progressive gains in
capacity for reasoned, mature judgment, impulse control, and

1
The convergence of research across multiple disciplines makes
this scientific consensus particularly strong. (See Steinberg,
Should the Science of Adolescent Brain Development Inform
Public Policy? (2009) 64 Am. Psych. 739, 744.)

22
autonomy.2
A “rapid and dramatic increase in dopaminergic activity
within the socioemotional system around the time of puberty”
drives the young adolescent toward increased sensation-seeking
and risk taking; “this increase in reward seeking precedes the
structural maturation of the cognitive control system and its
connections to areas of the socioemotional system, a maturational
process that is gradual, unfolds over the course of adolescence,
and permits more advanced self-regulation and impulse control.”3
“The temporal gap between the arousal of the socioemotional
system, which is an early adolescent development, and the full
maturation of the cognitive control system, which occurs later,

Document received by the CA Supreme Court.

creates a period of heightened vulnerability to risk taking during
middle adolescence.”4 “This imbalance . . . results in poor
regulation of emotions and a tendency to focus on the immediate

2
Geier & Luna, The Maturation of Incentive Processing and
Cognitive Control (2009) 93 Pharmacology, Biochemistry &
Behav. 212, 212 (hereafter Geier & Luna); see also Spear, The
Adolescent Brain and Age-Related Behavioral Manifestations
(2000) 24 Neuroscience & Biobehavioral Rev. 417, 434–436
[discussing radical hormonal changes in adolescence] (hereafter
Spear).
3
Steinberg et al., Age Differences in Sensation Seeking and
Impulsivity as Indexed by Behavior and Self-Report: Evidence for
a Dual Systems Model (2008) 44 Dev. Psych. 1764, 1764
(hereafter Steinberg, Dual Systems Model).
4
Steinberg, Adolescent Development and Juvenile Justice (2009) 5
Ann. Rev. Clinical Psych. 459, 466 (hereafter Steinberg,
Adolescent Development).

23
rewards of choices, while discounting long-term costs . . .
increas[ing] inclinations to engage in risky behavior, including
offending.”5
These biological and psychosocial developments explain
what is obvious to parents, teachers, and any adult who reflects
back on his or her own teenage years: 14- and 15-year-old
teenagers lack the maturity, independence, and future
orientation that adults, and even older teens, have acquired over
the course of adolescence. While 16- and 17-year-olds are working
after-school jobs to save up for their first car and applying to
college, 14- and 15-year-olds are agonizing about who will sit with
them at lunch. Graduating seniors are thinking about their

Document received by the CA Supreme Court.

future careers and families, while ninth graders are fixated on
what video to post on their TikTok accounts that day.6 Among
adolescents, young teens have the least capacity to imagine
consequences, regulate their wildly shifting emotions, and resist
peer pressure. Yet they also have the most capacity for change,
precisely because they are at the beginning of the most intense

5
Scott et al., Brain Development, Social Context, and Justice
Policy (2018) 57 Wash. U. J. L. & Pol’y 13, 28–29 (hereafter Scott,
Justice Policy); see also Shulman et al., The Dual Systems Model:
Review, Reappraisal, and Reaffirmation (2016) 17 Dev. Cognitive
Neuroscience 103, 106 [positing that “late adolescents are less
biologically predisposed to risk taking than middle adolescents”]
(hereafter Shulman).
6
TikTok is a popular smartphone application for making and
sharing short videos. (Herman, TikTok is Rewriting the World,
N.Y. Times (Mar. 10, 2019),
https://www.nytimes.com/2019/03/10/style/what-is-tik-tok.html.)

24
period of rapid growth in their lifetimes.7
A. Young Adolescents Have Not Yet
Developed the Capacity to Make Mature
and Responsible Decisions.

By the standards of adults or even older adolescents,8 the

judgment of young teenagers is multiply handicapped: they lack
life experience and background knowledge to inform their choices;
they struggle to generate options and to imagine consequences;
and, perhaps for good reason, they lack the self-confidence
necessary to make reasoned judgments and stick by them.9 In

7
Spear, supra, 24 Neuroscience & Biobehavioral Rev. at p. 428
[“[A]dolescence is second only to the neonatal period in terms of

Document received by the CA Supreme Court.

both rapid biopsychosocial growth as well as changing
environmental characteristics and demands . . . .”]; see also id. at
pp. 428–429 [finding that stress is elevated in early adolescents,
incidence of depression is often highest, and teens experience
sleep problems, great extremes in mood, and peak anxiety and
self-consciousness].
8
Compared to twelfth graders, ninth graders show deficiencies in
imagining risks and future consequences. (Lewis, How
Adolescents Approach Decisions: Changes over Grades Seven to
Twelve and Policy Implications (1981) 52 Child Dev. 538, 543; see
also Halpern-Felsher & Cauffman, Costs and Benefits of a
Decision: Decision-Making Competence in Adolescents and Adults
(2001) 22 J. Applied Dev. Psych. 257, 271.)
9
Luna, The Maturation of Cognitive Control and the Adolescent
Brain, in From Attention to Goal-Directed Behavior (Aboitiz &
Cosmelli edits., 2009) pp. 252–256; Cauffman & Steinberg,
(Im)maturity of Judgment in Adolescence: Why Adolescents May
be Less Culpable than Adults (2000) 18 Behav. Sci. & L. 741, 756;
Mann et al., Adolescent Decision-Making: The Development of
Competence (1989) 12 J. Adolescence 265, 267–270 (hereafter

25
addition, their brain structure at this developmental stage
hampers their ability to make the kind of judgments at 14 that
they will comfortably handle at 17. Like a car with a powerful
accelerator but weak brakes, a young teenager’s brain is fully
developed in the part responsible for emotional arousal and
sensitivity to peer pressure (the gas pedal), but the parts in the
frontal lobe that control impulses and allow long-term thinking,
planning, and resistance to peer pressure (the brakes) are still
developing and won’t mature for many years to come.10 At 14 and

Mann); Nurmi, How Do Adolescents See Their Future? A Review

of the Development of Future Orientation and Planning (1991) 11
Dev. Rev. 1, 12 (hereafter Nurmi).

Document received by the CA Supreme Court.

10
See Shulman, supra; Casey, Beyond Simple Models of Self-
Control to Circuit-Based Accounts of Adolescent Behavior (2015)
66 Ann. Rev. Psych. 295, 298-300; Tennison & Pustilnik, “And If
Your Friends Jumped Off a Bridge, Would You Do it Too?”: How
Developmental Neuroscience Can Inform Legal Regimes
Governing Adolescents (2015) 12 Ind. Health L.Rev. 533, 563
[brain developmental imbalance in adolescents manifests “as an
overvaluation of emotional information,” creating a
“developmental disparity” that “often leads to poor decisions
when emotional and intellectual evaluations conflict”]; Cohen &
Casey, Rewiring Juvenile Justice: The Intersection of
Developmental Neuroscience and Legal Policy (2014) 18 Trends
Cognitive Sci. 63, 63 [imbalance in development of different brain
regions creates “greater reliance on emotional regions than on
prefrontal cortex regions during adolescence as compared to both
childhood and adulthood”] (hereafter Cohen & Casey); Steinberg,
A Social Neuroscience Perspective on Adolescent Risk-Taking
(2008) 28 Dev. Rev. 78, 83 (hereafter Steinberg, Social
Neuroscience); Steinberg, Risk Taking in Adolescence: New
Perspectives from Brain and Behavioral Science (2007) 16 Current
Directions Psych. Sci. 55, 56–58 (hereafter Steinberg, Risk

26
15, the major transformation in brain structure that will result in
a sophisticated system of circuitry between the frontal lobe and
the rest of the brain, enabling adults to exercise cognitive control
over their behavior, is barely underway.11

Taking).
11
Luna, supra, at p. 257; see also Whitford et al., Brain
Maturation in Adolescence: Concurrent Changes in Neuroanatomy
and Neurophysiology (2007) 28 Hum. Brain Mapping 228, 228. At
the core of this transformation are contemporaneous increases in
white matter (myelination) and decreases in gray matter
(synaptic pruning). (Giedd, Structural Magnetic Resonance
Imaging of the Adolescent Brain (2004) 1021 Annals N.Y. Acad.
Sci. 77, 77-83 (hereafter Giedd).) Myelination increases the
efficiency of information processing and supports the integration

Document received by the CA Supreme Court.

of the widely distributed circuitry needed for complex behavior; it
is the wiring of connections among and between the frontal
regions and the rest of the brain. Immature myelination is
thought to make adolescents vulnerable to impulsive behavior,
while the increased processing speed facilitated by myelination
facilitates cognitive complexity. (Geier & Luna, supra, 93
Pharmacology, Biochemistry & Behav. at p. 216; see also Giedd,
supra, 1021 Annals N.Y. Acad. Sci. at p. 80.) White matter in the
brain increases in a linear fashion, so that older adolescents and
adults benefit from a greater number of myelinated neurons than
younger teens. (Giedd, supra, 1021 Annals N.Y. Acad. Sci. at p.
80.)
Cortical gray matter is thickest early in adolescence. (Id. at
p. 82.) Later in the teenage years, this cortical gray matter under-
goes significant “pruning,” making more efficient that part of the
brain responsible for inhibiting impulses and assessing risk.
(Ibid.; see also Rightmer, Arrested Development: Juveniles’
Immature Brains Make Them Less Culpable than Adults (2005) 9
Quinnipiac Health L.J. 1, 12; Spear, supra, 24 Neuroscience &
Biobehavioral Rev. at p. 439.) Pruning typically is not complete
until middle to late adolescence, and the parts of the brain that
process risk and control executive functioning do not finish

27
 Young adolescents find themselves behind the wheel of this
fundamentally deficient vehicle with no driver’s ed instruction to
guide them. Their hunger for thrilling speed easily overwhelms
their scant capacity to apprehend the possibility of a serious
crash; they have weak brakes and very limited visibility ahead or
behind. This is why no state permits young adolescents to drive.
That older adolescents are issued driver’s licenses reflects the fact
that they are further along in development—they have more
experience in making decisions, their brain circuitry is more
efficient, the hormonal storm of puberty is not brand-new to
them, and they have a better view of their futures.12 Sixteen- and

Document received by the CA Supreme Court.

myelinating until late adolescence or early adulthood. (Giedd et
al., Brain Development During Childhood and Adolescence: a
Longitudinal MRI Study (1999) 2 Nature Neuroscience 861, 862;
see also Sowell et al., In Vivo Evidence for Post-Adolescent Brain
Maturation in Frontal and Striatal Regions (1999) 2 Nature
Neuroscience 859, 860; Luna & Sweeney, The Emergence of
Collaborative Brain Function (2004) 1021 Annals N.Y. Acad. Sci.
296, 301.) The “patterns of development in the prefrontal cortex,
which is active during the performance of complicated tasks
involving long-term planning and judgment and decision making,
suggest that these higher order cognitive capacities may be
immature well into late adolescence.” (Steinberg & Scott, Less
Guilty by Reason of Adolescence (2003) 58 Am. Psych. 1009, 1013
(hereafter, Steinberg & Scott, Less Guilty); see also Sowell et al.,
Localizing Age-Related Changes in Brain Structure Between
Childhood and Adolescence Using Statistical Parametric Mapping
(1998) 9 NeuroImage 587, 596; Halpern-Felsher & Cauffman,
supra, 22 J. Applied Dev. Psych. at p. 271.)
12
See supra notes 13, 15; Steinberg, Social Neuroscience, supra,
28 Dev. Rev. at p. 86.

28
17-year-olds still are risky, bad drivers compared to adults,13 but
there is clear consensus that 14-year-olds are so lacking in
maturity and decision-making capability that they should not
even be allowed to take the wheel.
B. Young Adolescents Are Especially
Susceptible to Risk-Taking Impulses and
Negative Peer Influences.

Early teenagers’ propensity for risk-taking exacerbates

their decision-making difficulties. It is universally recognized
that adolescence is characterized by risk-taking behavior;
contemporary neurological science establishes that this is a
function of physical brain development as well as a socially
scripted phase of the passage from childhood to maturity.14 In

Document received by the CA Supreme Court.

some ways, risk-taking is an essential part of adolescent
development, because “increased sensation seeking . . .
encourages adolescents to explore their environment and to

13
Recognizing this fact, all states but one have enacted some sort
of graduated licensing law, which “phases in unrestricted driving
by allowing beginners to get their initial behind-the-wheel
experiences under conditions that reduce the risk of collision.”
Branche et al., Graduated Licensing for Teens (2002) 30 J. L. Med.
& Ethics 146, 146–147.
14
See, e.g., Steinberg, Risk Taking, supra, 16 Current Directions
Psych. Sci. at p. 56-58; Geier & Luna, supra, 93 Pharmacology,
Biochemistry & Behav. at p. 218; Kelley et al., Risk Taking and
Novelty Seeking in Adolescence (2004) 1021 Annals N.Y. Acad.
Sci. 27, 27.

29
develop a sense of identity and autonomy.”15 Neurodevelopmental
studies16 have suggested that heightened risk taking in
adolescence is associated with greater activation of reward-
sensitive brain regions that make “individuals more attentive,
sensitive, and responsive to actual and potential rewards.”17
Risk-taking behavior is so common in adolescence that
researchers understand “criminal offending as a specific instance”
during young adolescence of “the more general inclination of
young adults to engage in risky activity.”18 For the purpose of

15
Scott, Justice Policy, supra, 57 Wash. U. J. L. & Pol’y at p. 21;
see also Crone & Dahl, Understanding Adolescence as a Period of
Social-Affective Engagement and Goal Flexibility (2012) 13
Nature Rev. Neuroscience 636, 642; Ellis et al., The Evolutionary

Document received by the CA Supreme Court.

Basis of Adolescent Behavior: Implications for Science, Policy, and
Practice (2012) 48 Dev. Psych. 598, 601.
16
In brain imaging studies, when presented with images of
rewarding stimuli, such as smiling faces, adolescents gave a
stronger response in reward-processing regions than children or
adults did. (See Galvan et al., Risk-Taking and the Adolescent
Brain: Who is at Risk? (2007) 10 Dev. Sci. F8, F11.) Other studies
utilizing, for example, “self-report scales that assess
characteristics such as thrill- or novelty-seeking, or behavioral
tasks that assess responsiveness to rewarding stimuli (such as
monetary rewards)” and “gambling tasks in which individuals
must learn to discriminate between gambles that are likely to be
rewarding . . . and those that are likely to be costly” have shown
similar results. (Scott, Justice Policy, supra, 57 Wash. U. J. L. &
Pol’y at pp. 22–23.)
17
Scott et al., Young Adulthood as a Transitional Legal Category:
Science, Social Change, and Justice Policy (2016) 85 Fordham
L.Rev. 641, 646–647.
18
Id. at p. 646.

30
understanding young adolescent behavior relative to that of
adults, and even older teens, the critical observations are that (1)
most adolescent risk-taking is a group phenomenon and (2) young
adolescents are the most vulnerable to peer-group influence.
Parents, teachers, and observers of teenagers the world
over know that social interactions and affiliations with peers take
on an out-sized importance in adolescence. Teens spend about
one-third of their waking hours talking with peers (but only 8%
with adults).19 While all adolescents are more peer-oriented than
adults, research indicates that vulnerability to peer pressure,
especially for boys, increases during early adolescence to an all-
time high around age 14.20 The need to fit in with the peer

Document received by the CA Supreme Court.

group—to impress peers with daredevil antics and smart-alecky
comments—exerts enormous influence on the behavior of young
adolescents, more so than during pre-adolescence or late
adolescence.21 Researchers have found that “a network of brain
systems governing thinking about social relationships undergoes
significant changes in adolescence in ways that increase
individuals’ concern about the opinion of other people,

19
Spear, supra, 24 Neuroscience & Biobehavioral Rev. at p. 420.
20
Steinberg & Silverberg, The Vicissitudes of Autonomy in Early
Adolescence (1986) 57 Child Dev. 841, 846, 848; Mann, supra, 12
J. Adolescence at pp. 267-68, 274; Steinberg, Risk Taking, supra,
16 Current Directions Psych. Sci. at p. 57; Reppucci, Adolescent
Development and Juvenile Justice (1999) 27 Am. J. Cmty. Psych.
307, 318 (hereafter Reppucci).
21
Steinberg, Social Neuroscience, supra, 28 Dev. Rev. at p. 92.

31
particularly peers.”22 During this period of development,
teenagers are more sensitive to praise and rejection than children
or adults, “making them potentially more susceptible to peer
influence, and responsive to threats.”23 This is arguably why
teenagers are “more likely to offend in groups” than adults and
“take more risks in the presence of peers than when they are
alone or with an adult”—the increased awareness of peers makes
“approval especially important in group situations.”24 The
presence of peers increases risk-taking among teenagers even
when they are given information about the likelihood of positive
or negative outcomes.25 Moreover, teenagers who are rejected by
their peers often engage in risky behavior “to fit in with a group”

Document received by the CA Supreme Court.

that “may draw a teen to engage in behaviors, including illegal

22
Scott, Justice Policy, supra, 57 Wash. U. J. L. & Pol’y at p. 24;
see also Blakemore, Development of the Social Brain in
Adolescence (2012) 105 J. Royal Soc’y Med. 111, 112; Blakemore &
Mills, Is Adolescence a Sensitive Period for Sociocultural
Processing? (2014) 65 Ann. Rev. Psych. 187, 189.
23
Scott, Justice Policy, supra, 57 Wash. U. J. L. & Pol’y at p. 24;
see also Dreyfuss et al., Teens Impulsively React Rather than
Retreat from Threat (2014) 36 Dev. Neuroscience 220, 220; Guyer
et al., Probing the Neural Correlates of Anticipated Peer
Evaluation in Adolescence (2009) 80 Child Dev. 1000, 1000.
24
Scott, Justice Policy, supra, 57 Wash. U. J. L. & Pol’y at p. 25.
25
Smith et al., Peers Increase Adolescent Risk Taking Even When
the Probabilities of Negative Outcomes are Known (2014) 50 Dev.
Psych. 1564, 1567–1568.

32
activity, even when they know better.”26
Indeed, extreme vulnerability to peer influence (especially
when it is to do something bad) is a defining characteristic of
young adolescence, reflected in the fact that it is statistically
aberrant for boys to refrain from minor criminal behavior during
this period.27 Peer pressure is so strong in young adolescence that
“affiliation with antisocial peers is the factor most predictive of
juveniles’ involvement in criminal activity.”28
Peer pressure heavily impacts young adolescents’ decisions
to offend because of the “dynamic interaction between a still-
maturing individual and her social context.”29
Neurodevelopmental researchers have found that social

Document received by the CA Supreme Court.

environment greatly impacts the developing brains of young
adolescents and heavily influences their decisions to take risks.
Critically, the tendency for young adolescents to engage in
risk-taking behavior increases in emotionally and socially
arousing contexts.30 “In emotionally charged situations,”

26
Cohen & Casey, supra, 18 Trends Cognitive Sci. at p. 64.
27
Spear, supra, 24 Neuroscience & Biobehavioral Rev. at p. 421;
Reppucci, supra, 27 Am. J. Cmty. Psych. at p. 319.
28
Scott, Justice Policy, supra, 57 Wash. U. J. L. & Pol’y at pp.
47–48.
29
Id. at p. 13.
30
Smith et al., Impact of Socio-Emotional Context, Brain
Development, and Pubertal Maturation on Adolescent
Risk-Making (2013) 64 Hormones & Behav. 323, 325–326.

33
adolescent brains are “even less capable of adequately regulating
emotions and actions, resulting in a teen exercising less self-
control in making a risky decision, even when he or she knows
better.”31 So the combination of a negative environment, an
adolescent’s proclivity for reward-seeking, and an emotionally
charged situation can lead to especially reckless decision-
making.32
The added pressure of a threatening context or the presence
of peers further undermines “rationality and contribut[es] to
impulsive decisions.”33 Because risk-taking behavior can manifest
in many ways, a teenager living in a “high-crime neighborhood
with many antisocial peers is more likely to get involved in

Document received by the CA Supreme Court.

criminal activity” than “if he were a member of a close-knit and
highly competitive basketball team, [where] the interaction of
peer influence and reward-seeking might lead to the sort of risk-
taking on the basketball court that is socially accepted.”34

31
Cohen & Casey, supra, 18 Trends Cognitive Sci. at pp. 63–64.
32
Scott, Justice Policy, supra, 57 Wash. U. J. L. & Pol’y at p. 37.
33
Ibid.; see also Cohen et al., When is an Adolescent an Adult?
Assessing Cognitive Control in Emotional and Nonemotional
Contexts (2016) 27 Psych. Sci. 549, 559–560; Forbes et al., Neural
Systems of Threat Processing in Adolescents: Role of Pubertal
Maturation and Relation to Measures of Negative Affect (2011) 36
Dev. Neuropsychology 429, 446-47; Kassin, The Psychology of
Confessions (2008) 4 Ann. Rev. L. & Soc. Sci. 193, 204.
34
Scott, Justice Policy, supra, 57 Wash. U. J. L. & Pol’y at pp.
16–17; see also Steinberg, The Influence of Neuroscience on U.S.
Supreme Court Decisions Involving Adolescents’ Criminal

34
 Young adolescents are in such an early developmental stage
that their environment can influence them to the point that it
“shape[s] the trajectory” of their lives.35 The adolescent brain is
“malleable” and “plastic,” an adaptability that allows them to
respond to their environment, and if their social environment
encourages risk-taking, they are more likely to engage in those
behaviors.36
Social context is as out of a teenager’s control as is “other
aspects of brain development, including the inclination toward
reward-seeking or the tendency to make impulsive choices when
aroused.”37 Young adolescents are unable to extricate themselves
from social contexts—whether it be their homes, neighborhoods,

Document received by the CA Supreme Court.

or schools—where they are likely to get into trouble or get
involved in criminal behavior.38 Denied the rights and privileges
that accrue at age 18, all adolescents have less ability than adults

Culpability (2013) 14 Nature Rev. Neuroscience 513, 513–518.

35
Scott, Justice Policy, supra, 57 Wash. U. J. L. & Pol’y at p. 17.
36
Ibid.
37
Id. at p. 63.
38
Steinberg & Scott, Less Guilty, supra, 58 Am. Psych. at p. 1014;
Scott & Steinberg, Blaming Youth (2003) 81 Tex. L.Rev. 799, 817.
The U.S. Supreme Court has adopted this position in its Eighth
Amendment opinions. (See Roper v. Simmons (2005) 543 U.S.
551, 569 [125 S.Ct. 1183, 1195, 161 L.Ed.2d 1]; Miller v. Alabama
(2012) 567 U.S. 460, 471 [132 S.Ct. 2455, 2464, 183 L.Ed.2d 407];
Montgomery v. Louisiana (2016) 136 S.Ct. 718, 733 [193 L.Ed.2d
599].)

35
to free themselves from morally toxic or dangerous environments.
Still, the youngest teens are worst off. State and federal laws
meant to protect young teens from exploitation and from their
own underdeveloped sense of responsibility—including
restrictions on driving, working, and leaving school—operate
conversely to disable a 14-year-old from escaping an abusive
parent, a dysfunctional or violent household, or a dangerous
neighborhood.
C. Young Adolescents Have Not Yet Begun to
Imagine Their Futures and Thus Have the
Capacity to Change and Mature.

Young teens, to a much greater extent than adults or older

teens, are unable to fully envision who they want to be or what

Document received by the CA Supreme Court.

they want to achieve in the future. Young teens are readily
distinguishable from 16-year-olds by their excruciatingly low self-
esteem and high self-consciousness, which lead them to fixate on
the instantaneous present.39 Not until age 16 do adolescents
obtain something close to a mature sense of perspective. And not
until the late teens or early twenties do they begin to form a
coherent identity—although teens 16 and older do have a more

39
Nurmi, supra, 11 Dev. Rev. at pp. 12–13; see also Steinberg &
Cauffman, Maturity of Judgment in Adolescence (1996) 20 Law &
Hum. Behav. 249, 255; Seagrave & Grisso, Adolescent
Development and the Measurement of Juvenile Psychopathy
(2002) 26 Law & Hum. Behav. 219, 229 (hereafter Seagrave &
Grisso); Reppucci, supra, 27 Am. J. Cmty. Psych. at pp. 318–319;
Arnett, Reckless Behavior in Adolescence (1992) 12 Dev. Rev. 339,
344 (1992); Steinberg, Social Neuroscience, supra, 28 Dev. Rev. at
p. 90.

36
mature sense of self than adolescents 15 and under.40
Very few young adolescents think about their future beyond
age 30.41 As adolescents grow older, they become increasingly
focused upon tasks of self-development, contemplating future
education, occupation, and family. With this added perspective,
their ability to plan and to realistically anticipate long-term
consequences improves.42 But at 14 and 15, ninth graders tend to
struggle with planning even how to get tonight’s homework done
while keeping up with their constantly updating social media
feeds.
The flip side of young adolescents’ underdeveloped sense of
self is that they have, relative to older individuals, more potential

Document received by the CA Supreme Court.

to change and develop positive character traits as they grow up.
Just as a young adolescent can be particularly susceptible to
negative influences, the malleability and plasticity of their still-
developing brains means that young teens are also especially
responsive to positive interventions.43
A typical 14-year-old who acts irresponsibly in reaction to a
thrilling impulse or peer pressure is not irretrievably depraved or
permanently flawed. Nothing about his character is permanent,

40
Steinberg, Social Neuroscience, supra, 28 Dev. Rev. at p. 94;
Seagrave & Grisso, supra, 26 Law & Hum. Behav. at pp. 226,
229.
41
Nurmi, supra, 11 Dev. Rev. at p. 27.
42
Id. at pp. 27–29.
43
Scott, Justice Policy, supra, 57 Wash. U. J. L. & Pol’y at p. 63.

37
and he has years of development ahead, during which he can
(and, in most cases, will) grow into a moral, law-abiding adult.44
Dozens of longitudinal studies have shown that the
vast majority of adolescents who commit antisocial
acts desist from such activity as they mature into
adulthood and that only a small percentage—between
five and ten percent, according to most
studies—become chronic offenders. Thus, nearly all
juvenile offenders are adolescent limited. . . . [M]ost
juvenile offenders mature out of crime (and [] most
will desist whether or not they are caught, arrested,
prosecuted or sanctioned.45

Most teens grow out of their risky behavior as a part of the

maturation process.46 Typically, the ability to resist peer influence
and to regulate internal impulses matures in middle or late

Document received by the CA Supreme Court.

adolescence.47 Moreover, at the same time that an adolescent’s
brain is developing, “reducing impulsivity and the inclination to
engage in risk-taking,” his social context is also changing because
his friends’ and peers’ brains are developing too, and thus “he is
no longer surrounded by sensation-seeking individuals, inclined,

44
Steinberg, Risk Taking in Adolescence: What Changes and Why
(2004) 1021 Annals N.Y. Acad. Sci. 51, 55.
45
Steinberg, Adolescent Development, supra, 5 Ann. Rev. Clinical
Psych. at p. 66.
46
Spear, supra, 24 Neuroscience & Biobehavioral Rev. at p. 421;
Reppucci, supra, 27 Am. J. Cmty. Psych. at p. 319.
47
Cohen & Casey, supra, 18 Trends Cognitive Sci. at p. 64
[“[D]iminished self control is transient and will continue to
develop as underlying circuitry becomes fine tuned with
experience and time.”].

38
as he was, to make impulsive choices when emotionally
aroused.”48
***
The U.S. Supreme Court has recognized that adolescents,
as a class, lack the maturity, autonomy, and self-governing
capacity of adults. (Miller v. Alabama (2012) 567 U.S. 460, 471
[132 S.Ct. 2455, 2464, 183 L.Ed.2d 407]; Roper v. Simmons (2005)
543 U.S. 551, 569-71 [125 S.Ct. 1183, 1195-96, 161 L.Ed.2d 1];
Eddings v. Oklahoma (1982) 455 U.S. 104, 115-16 [102 S.Ct. 869,
877, 71 L.Ed.2d 1].) As is readily observable and widely accepted,
the youngest adolescents are the least mature, most susceptible
to internal impulses and external influences, and have the

Document received by the CA Supreme Court.

greatest capacity for change.49
II. California Law Recognizes the Special
Vulnerabilities and Deficiencies of Young
Adolescents.

California law recognizes and protects the distinct frailties

of young adolescents in virtually every regulatory sphere. (See In
re Nunez (2009) 173 Cal.App.4th 709, 729 [93 Cal.Rptr.3d 242,
267] [“Our history is replete with laws and judicial recognition

48
Scott, Justice Policy, supra, 57 Wash. U. J. L. & Pol’y at p. 45;
see also Sweeten et al., Age and the Explanation of Crime,
Revisited (2013) 42 J. Youth & Adolescence 921, 935.
49
See, e.g., Steinberg et al., Age Differences in Future Orientation
and Delay Discounting (2009) 80 Child Dev. 28, 28, 39–40;
Steinberg & Monahan, Age Differences in Resistance to Peer
Influence (2007) 43 Dev. Psych. 1531, 1540; Steinberg, Dual
Systems Model, supra, 44 Dev. Psych. at pp. 1775–1776.

39
that minors, especially in their earlier years, generally are less
mature and responsible than adults.” [quoting Thompson v.
Oklahoma (1988) 487 U.S. 815, 834 [108 S.Ct. 2687, 2698, 101
L.Ed.2d 702]]].) State law provides special protections for early
adolescents while, at the same time, limiting their freedoms,
consistent with the understanding that young teens are
unprepared for a wide range of responsibilities and
privileges—from the obvious and universal (driving,50 marriage,51
sex52) to the mundane or obscure (fireworks,53 hunting,54

Document received by the CA Supreme Court.

50
Veh. Code, §§ 12512-12514, 12814.6 [children under 17
ineligible for license to drive; 14-year-old eligible for junior permit
under extraordinary circumstances; child 15 years 6 months
eligible for instruction permit; 16- and 17-year-olds eligible for
provisional license only].
51
Fam. Code, § 302 [child 17 or younger requires judicial and
parental consent to marry].
52
Pen. Code, § 261.5 [child 15 or younger incapable of consenting
to sexual intercourse with person 21 years or older who is not the
child’s spouse].
53
Health & Saf. Code, § 12689 [sale of “safe and sane” fireworks
to child 15 or younger prohibited].
54
Fish & G. Code, § 3031 [providing that children 15 or younger
eligible only for “junior hunting license[s]” and specifying that “a
person who is 16 or 17 years of age, [] in possession of a valid
junior hunting license, and [] issued an entry permit . . . may
hunt in the area described in the entry permit unaccompanied by
a person over 18 years of age but shall not be accompanied by a
person under 16 years of age”].

40
tanning55). These ubiquitous regulations demonstrate a consensus
within the state that the capacities and vulnerabilities of young
adolescents mean that they require special protection and are
unprepared for adult responsibilities.
A. California Law Recognizes That Young
Adolescents Are Especially Vulnerable
and Provides Heightened Protection from
Exploitation and Abuse.

Children 15 or younger are generally “more vulnerable or

susceptible to . . . outside pressures than adults.” (In re Elias V.
(2015) 237 Cal.App.4th 568, 587 [188 Cal.Rptr.3d 202, 217]
[quoting J.D.B. v. North Carolina (2011) 564 U.S. 261, 272 [131
S.Ct. 2394, 2397, 180 L.Ed.2d 310]].) As California courts have

Document received by the CA Supreme Court.

observed, “[i]nexperience, less intelligence and less education
make a teenager less able to evaluate the consequences of his or
her conduct while at the same time he or she is more apt to be
motivated by mere emotion or peer pressure than as an adult.”
(In re Barker (2007) 151 Cal.App.4th 347, 377 [59 Cal.Rptr.3d
746, 769] [quoting Thompson v. Oklahoma, supra, 487 U.S. at p.
835]; see also In re Palmer (2019) 33 Cal.App.5th 1199, 1210 [245
Cal.Rptr.3d 708, 719] [“[Y]outh is more than a chronological fact.
It is a time and condition of life when a person may be most
susceptible to influence and to psychological damage.” [quoting
Eddings v. Oklahoma (1982) 455 U.S. 104, 115 [102 S.Ct. 869,
877, 71 L.Ed.2d 1]]].)

55
Bus. & Prof. Code, § 22706 [children under 17 may not use
ultraviolet tanning device].

41
 In light of this societal judgment that young adolescents are
particularly susceptible to exploitation, abuse, and persuasion,
California law imposes enhanced criminal liability on older people
who take advantage of them56 and penalizes adults and older
teens for failing to protect early adolescents under their control.57
More specifically, California law accords greater protection to

56
See, e.g., Pen. Code, § 647.6 [providing for harsher punishments
for persons convicted of “annoying or molesting” a child 17 or
younger for persons with prior felony convictions involving
children 15 or younger]; cf. Evid. Code, § 1027 [no
psychotherapist-patient privilege when the patient is 15 or

Document received by the CA Supreme Court.

younger and the “psychotherapist has reasonable cause to believe
that the patient has been the victim of a crime and that
disclosure of the communication is in the best interest of the
child”].
57
See, e.g., Lab. Code, § 1308 [crime to cause child 15 or younger
to engage in dangerous employment]; Lab. Code, § 4551 [injured
employee under 16 years of age entitled to employer
compensation even when injury is caused by their own “serious
and willful misconduct”]; Veh. Code, § 27360.5 [penalizing driver
of vehicle when child 15 or younger does not wear seat belt]; Veh.
Code, § 27318 [parent, legal guardian, or chartering party
prohibited from transporting children between the ages of 8 and
15 on a bus without a safety belt]; Ins. Code, § 11661.5 [“An
insurer shall not insure an employer against his liability for
additional compensation arising out of injuries to illegally
employed persons under 16 years of age . . . .”]; Pen. Code, § 637.9
[criminalizing the disclosure of personal information about
children 15 or younger in certain circumstances by any person
who, in the course of business, provides mailing lists,
computerized or telephone-based reference services, or similar
products or services utilizing lists].

42
children 15 or younger from sex offenses58 and provides that they
are incapable of consenting to sexual intercourse.59 Recognizing
that young teens are especially susceptible to outside influences,
state criminal statutes also prohibit luring young adolescents into
illicit conduct and exposing them to criminal behavior.60

58
See, e.g., Pen. Code, § 288 [protecting children 14 and 15 from
lewd and lascivious acts by persons at least 10 years older than
child]; Pen. Code, §§ 266h-266k [enhanced penalties for pimping,
pandering with, or procuring for purposes of prostitution child 15
or younger]; Pen. Code, § 286 [crime for any person over 21 years
of age to participate in an act of sodomy with a child 15 or
younger]; cf. Pen. Code, § 311 [for the purposes of defining
criminally “obscene matter,” “[i]n determining whether the
matter taken as a whole lacks serious literary, artistic, political,

Document received by the CA Supreme Court.

or scientific value in description or representation of those
matters, the fact that the defendant knew that the matter depicts
persons under the age of 16 years engaged in sexual conduct . . .
is a factor that may be considered”].
59
Pen. Code, § 261.5 [child 15 or younger incapable of consenting
to sex with person 21 years or older who is not the child’s spouse];
see also People v. Soto (2011) 51 Cal.4th 229, 247-48 [245 P.3d
410, 421-422] [reaffirming long-standing California law
recognizing that “consent is not a defense when the victim of a
sex crime is a child under age 14” in holding that, under Penal
Code section 288, subdivision (b)(1), “consent of the victim is not a
defense to the crime of aggravated lewd conduct on a child under
age 14”].
60
See, e.g., Pen. Code, § 653j [protecting children 15 and younger
from vulnerability to influence by making it a crime for person 18
or older to solicit, induce, or encourage child of such age to
commit certain violent felonies]; Pen. Code, § 272 [crime for any
person to contribute to the delinquency of child 17 or younger];
Pen. Code, § 310 [crime to admit child 15 or younger to prizefight
or cockfight]; Health & Saf. Code, § 11361 [crime for person 18 or

43
 It is well settled that “the features that distinguish
juveniles from adults also put them at a significant disadvantage
in criminal proceedings.” (People v. Flores (2020) 9 Cal.5th 371,
430 [462 P.3d 919, 966] [quoting Graham v. Florida (2010) 560
U.S. 48, 78, [130 S.Ct. 2011, 2032, 176 L.Ed.2d 825]].)61
“[J]uveniles aged fifteen and younger,” in particular, “have
deficits in their legal understanding, knowledge, and
decision-making capabilities.” (In re Elias V., supra, 237
Cal.App.4th at p. 578 [citing Redlich, The Susceptibility of

older to furnish, administer, or give cannabis to minor 14 or

older]; Health & Saf. Code, § 11379.7 [providing for harsher
punishment for methamphetamine and PCP production and

Document received by the CA Supreme Court.

distribution offenses “when the commission or attempted
commission of the crime occurs in a structure where any child
under 16 years of age is present” or “where the commission of the
crime causes any child under 16 years of age to suffer great bodily
injury”].
61
It follows that juvenile delinquency proceedings are
“fundamentally different from adult criminal proceedings.” (In re
Greg F. (2012) 55 Cal.4th 393, 401 [283 P.3d 1160, 1164].) In
short, “Juvenile proceedings are conducted not only for the
protection of society, but for the protection and benefit of the
youth involved.” (In re Greg F., supra, 55 Cal.4th at p. 1173-74;
see also In re Jose C. (2009) 45 Cal.4th 534, 540 [198 P.3d 1087,
1091] [“[Juvenile] proceedings exist, separate and apart from the
adult criminal justice system, out of a recognition that minors
who commit criminal offenses pose a special problem and require
treatment and rehabilitation different from the confinement and
punishment meted out in adult criminal trials.”]; In re R.O.
(2009) 176 Cal.App.4th 1493, 1498 [98 Cal. Rptr. 3d 738, 741]
[touting California’s “150[-]year tradition of maintaining two
separate and distinct criminal justice systems—one for juveniles
and one for adults”].)

44
Juveniles to False Confessions and False Guilty Pleas (2010) 62
Rutgers L.Rev. 943, 952].)
California law, therefore, takes steps to safeguard such
children from the many potential harms of the courtroom
environment.62 California law specifically recognizes that
appearing in court can be a traumatizing experience for young
adolescents and shields them from testifying in the presence of
their abusers.63 Additionally, once in state custody, young teens

62
See, e.g., Pen. Code, § 868.6 [encouraging counties to “provide a
room, located within, or within a reasonable distance from, the
courthouse, for the use of minors under the age of 16” in order to
“provide a nonthreatening environment for minors involved in the
judicial system . . . to better enable them to speak freely and

Document received by the CA Supreme Court.

accurately of the experiences that are the subject of judicial
inquiry”]; Cal. Stds. Jud. Admin., § 10.24 [“Each court should
endeavor to provide a children’s waiting room located in the
courthouse for the use of minors under the age of 16 who are
present on court premises as participants or who accompany
persons who are participants in court proceedings.”].
63
See, e.g., Pen. Code, § 1346 [child 15 or younger who is victim of
sex crime protected from emotional trauma through provisions
authorizing use of videotaped deposition of victim 15 or younger];
Code Civ. Proc., § 1219.5 [child 15 or younger protected by special
procedures before court may impose contempt for refusal to
testify or take oath]; cf. Pen. Code, § 859.1 [“In any criminal
proceeding in which the defendant is charged with any offense
specified in Section 868.8 on a minor under the age of 16 years . . .
the court shall, upon motion of the prosecuting attorney, conduct
a hearing to determine whether the testimony of, and testimony
relating to, [a minor] shall be closed to the public in order to
protect [the minor’s] reputation.”]; Fam. Code, § 3042 [child 14 or
older permitted to address the court regarding custody or
visitation, “unless the court determines that doing so is not in the
child’s best interest”].

45
are largely separated from adults and afforded other special
protections.64
California courts have recently begun to acknowledge a
“growing consensus” that “children and adolescents are much
more vulnerable to psychologically coercive interrogations and in
other dealings with police than resilient adults experienced with
the criminal justice system.” (In re Elias V., supra, 237
Cal.App.4th at p. 588; People v. Lessie (2010) 47 Cal.4th 1152,
1156 [223 P.3d 3, 11] [“[A] court faces special problems in
determining whether a minor who purports to waive the Fifth
Amendment rights to silence and the assistance of counsel in the
context of custodial interrogation does so knowingly and

Document received by the CA Supreme Court.

voluntarily.”]; see also In re Joseph H. (2015) 367 P.3d 1, 1 (dis.
opn. of Liu, J.) [“Miranda waivers by juveniles present special
concerns.”].) That is, “research on juveniles’ ability to exercise
Miranda rights and their adjudicative competence consistently
reports that, as a group, adolescents understand legal

64
See, e.g., Welf. & Inst. Code, § 211 [children 15 and younger not
to be housed in Department of Corrections facility]; Welf. & Inst.
Code, § 5585.55 [except under narrow circumstances of undue
hardship “each county shall ensure that minors under 16 years of
age are not held with adults receiving psychiatric treatment”];
Pen. Code, § 7502 [defining “minor” for the purposes of prisoner
medical testing provisions as “a person under 15 years of age”]; cf.
Welf. & Inst. Code, § 627(a) [“When an officer takes a minor
before a probation officer at a juvenile hall or to any other place of
confinement . . . he shall take immediate steps to notify the
minor’s parent, guardian, or a responsible relative that such
minor is in custody and the place where he is being held.”].

46
proceedings and make decisions less well than do adults,” and
“[y]ouths fifteen years of age and younger exhibited the clearest
and greatest disability.” (In re Elias V., supra, 237 Cal.App.4th at
p. 595 [quoting Feld, Police Interrogation of Juveniles: An
Empirical Study of Policy and Practice (2006) 97 J. Crim. Law &
Criminology 219, 233, 230].) California statutory law also reflects
this developing scientific agreement.65
B. California Law Recognizes That Young
Adolescents Are Immature, Impulsive,
Relatively Irresponsible, and Exceedingly
Susceptible to Coercion by Limiting Their
Rights and Responsibilities in Many
Aspects of Life.

“[C]hildren generally are less mature and responsible than

Document received by the CA Supreme Court.

adults.” (In re Elias V., supra, 237 Cal.App.4th at p. 587 [citing
J.D.B. v. North Carolina, supra, 564 U.S. at p. 272].) California
courts have specifically noted that early adolescents “often lack
the experience, perspective, and judgment to recognize and avoid
choices that could be detrimental to them.” (Ibid.) For this reason,

65
See, e.g., Welf. & Inst. Code, § 625.6 [children 15 or younger
must consult with legal counsel in person, by telephone, or by
video conference prior to wavier of Miranda rights or custodial
interrogation; court must, in adjudicating the admissibility of
statements of children 15 or younger made during or after
custodial interrogation, consider failure to comply with non-
waivable legal consultation requirement]; Welf. & Inst. Code, §
627, subd. b [minors have right to telephone calls to a designated
adult and an attorney within an hour after being taken into
custody and willful interference with that right is punishable as a
misdemeanor].

47
as this Court has observed, although “[h]igh school students may
appear to be . . . more capable of self-control than grammar school
children, “adolescent high school students are not adults and
should not be expected to exhibit that degree of discretion,
judgment, and concern for the safety of themselves and others
which we associate with full maturity.” (D.C. v. R.R. (2010) 182
Cal.App.4th 1190, 1221 [106 Cal. Rptr. 3d 399, 422] [quoting
Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 748
[470 P.2d 360, 364]]; see also In re Nunez, supra, 173 Cal.App.4th
at p. 729 [“[A]dolescents may have less capacity to control their
conduct and to think in long-range terms than adults. . . .”
[quoting Thompson v. Oklahoma, supra, 487 U.S. at p. 834]]; In re

Document received by the CA Supreme Court.

Elias V., supra, 237 Cal.App.4th at p. 587 [“Age 15 is a tender
and difficult age for a boy. . . . He cannot be judged by the more
exacting standards of maturity. That which would leave a man
cold and unimpressed can overawe and overwhelm a lad in his
early teens. This is the period of great instability which the crisis
of adolescence produces.” [quoting Gallegos v. Colorado (1962)
370 U.S. 49, 53 [82 S.Ct. 1209, 1212, 8 L.Ed.2d 325]]].)
Accordingly, because “adolescents, particularly in the early
and middle teen years, are more vulnerable, more impulsive, and
less self-disciplined than adults,” (In re Nunez, supra, 173
Cal.App.4th at p. 729 [quoting Thompson v. Oklahoma, supra,
487 U.S. at p. 834]), California law seeks to protect young
adolescents from exploitation and from their own lack of
judgment across diverse contexts: education, employment,

48
economic transactions, and so forth. California, along with every
state in the country, has decided that 14- and 15-year-olds are too
immature and irresponsible to drive,66 vote,67 serve on juries,68
drink alcohol,69 gamble,70 or marry without parental and judicial
consent.71 Likewise, all states require children 15 or younger to

66
Veh. Code, § 12512 [children under 17 ineligible for license to
drive]; cf. Veh. Code, § 21213 [children 15 or younger prohibited
from operating an electric bicycle]; Harb. & Nav. Code, § 658.5
[children 15 or younger prohibited from operating certain
vessels].
67
Elec. Code, § 2000 [children 17 or younger ineligible to vote;

Document received by the CA Supreme Court.

children 16 or older eligible to preregister to vote]; see also Elec.
Code, § 3009 [mail-in ballots may not be delivered to children 15
or younger].
68
Code Civ. Proc., § 203 [children 17 or younger ineligible for jury
service].
69
Bus. & Prof. Code, § 25658 [misdemeanor for person under 21
to purchase any alcoholic beverage].
70
Bus. & Prof. Code, § 19941 [person under 21 prohibited from
“play[ing], plac[ing] wagers at, or collect[ing] winnings from . . . a
gambling game”]; Bus. & Prof. Code, § 19921 [person under 21
prohibited from entering the gambling areas of licensed gambling
establishments].
71
Fam. Code, §§ 302, 304 [before consenting to marriage
involving child 17 or younger court must consider (1) interviews
with minor parties and at least one of the parent of each party;
and (2) a written report containing an “assessment of potential
force, threat, persuasion, fraud, coercion, or duress by either of
the parties or their family members relating to the intended
marriage”].

49
attend school,72 and California law further restricts the
employment of school-age children during the school year.73
California law broadly limits the type and amount of work young
teens can do.74 Early adolescents in the state are also prohibited

72
See Yudof et al., Education Policy and the Law (4th ed. 2002) p.
1; Ed. Code, § 48200 [children aged 6 to 17 must attend school,
with some exemptions]; see also Ed. Code, § 48232 [children 14 or
younger may not take leave of absence from school].
73
See, e.g., Ed. Code, § 49130 [14- and 15-year-old children may
obtain permits to work full time, extending no later than the end
of the current school year, only in limited enumerated
circumstances]; Ed. Code, § 51760.3 [14- and 15-year-old children
may receive credit for work experience education only under
narrow enumerated conditions].

Document received by the CA Supreme Court.

74
See, e.g., Lab. Code, §§ 1290, 1292, 1293, 1294, 1294.5, 1297
[children 15 or younger prohibited from employment in dangerous
jobs or tasks]; Lab. Code, § 1294.3 [children 14 or 15 allowed only
limited employment]; Lab. Code, § 1391 [limiting hours of
employment for children 15 and younger]; Lab. Code, § 1308.5
[requiring written consent of Labor Commissioner for
employment of children 15 or younger in various entertainment
industry positions]; Lab. Code, § 1308.1 [children 15 or younger
prohibited from engaging in door-to-door sales more than 50 miles
from their place of residence]; Lab. Code, § 2661 [children 15 or
younger ineligible for industrial homeworkers’ permits]; Pub.
Contract Code, § 6108 [prohibiting state contractors from
employing children 14 or younger in the “manufacturing
process”]; Bus & Prof. Code, §§ 2866, 7321, 7321.5, 7324, 7326
[child 16 or younger ineligible to be licensed as vocational nurse,
cosmetologist, barber, esthetician, manicurist]; cf. Welf. & Inst.
Code, § 883 [children committed to ranches, camps, or forestry
camps “may not be required to labor in fire suppression when
under the age of 16 years”]; Welf. & Inst. Code, § 11320.3
[children 15 or younger not required, as a condition of eligibility
for state aid, to participate in welfare-to-work activities]; Welf. &

50
from entering into certain contracts.75 In certain circumstances,
the California legislature has even seen fit to regulate young
adolescents’ bodily autonomy.76
As California courts have recognized, “[p]articularly during
the formative years of childhood and adolescence, minors often

Inst. Code, § 706.6 [requiring, as part of case plan, “a written

description of the programs and services, which will help the
minor prepare for the transition from foster care to successful
adulthood” only for children 16 or older].
75
See, e.g., Ins. Code, § 10112 [child 15 or younger requires
parental consent to contract for insurance]; Ins. Code, §
11023 [child 14 or younger ineligible for admission to fraternal
benefit society]; Fam. Code, § 6701 [child 17 or younger unable to

Document received by the CA Supreme Court.

make a contract relating to real property]; cf. Civ. Code, §
1785.11.9 [children 15 or younger considered “protected
consumers” warranting security freezes by consumer credit
reporting agencies in certain circumstances].
76
See, e.g., Pen. Code, § 261.5 [child 15 or younger incapable of
consenting to sex with person 21 years or older who is not the
child’s spouse]; Health & Saf. Code, § 1607.5 [child 14 or younger
incapable of donating blood; 15- or 16-year-old [child] requires
parental consent and physician authorization]; Health & Saf.
Code, § 7150.15 [child 14 or younger incapable of consenting to
living organ donation, unless emancipated minor; child between
15 and 18 requires parental consent]; Health & Saf. Code, § 1283
[“No health facility shall surrender the physical custody of a
minor under 16 years of age to any person unless such surrender
is authorized in writing by the child’s parent, the person having
legal custody of the child, or the caregiver of the child who is a
relative of the child and who may authorize medical care and
dental care.”]; Health & Saf. Code, § 119302 [children 17 or
younger prohibited from being offered or receiving a tattoo or
“permanent cosmetics application”]; see also Pen. Code, § 653
[misdemeanor to tattoo or offer to tattoo a child 17 or younger].

51
lack the experience, perspective, and judgment expected of
adults.” (In re Nunez, supra, 173 Cal.App.4th at p. 729 [quoting
Thompson v. Oklahoma, supra, 487 U.S. at p. 834].) The
California Legislature, in turn, has barred children younger than
15 from activities that require maturity and responsible
judgment. The fact that these activities are permitted for many
older adolescents demonstrates the widespread recognition that
early adolescents are developmentally distinct from adults and
older teens—that 14- and 15-year-olds lack the developmental
capacity to bear such responsibilities but that their incapacity
will abate over the course of adolescence. (See id. at p. 256 [“[T]he
signature qualities of youth are transient; as individuals mature,

Document received by the CA Supreme Court.

the impetuousness and recklessness that may dominate in
younger years can subside.” [quoting Johnson v. Texas (1993) 509
U.S. 350, 358 [113 S.Ct. 2658, 2669, 125 L.Ed.2d 290]]]; In re
Barker (2007) 151 Cal.App.4th at p. 377 [same]; see also In re
Jones (2019) 42 Cal.App.5th 477, 482 [255 Cal. Rptr. 3d 571, 573]
[“While young adults share many of the attributes of youth, they
are by definition further along in the process of maturation, and
the law need not be blind to the difference.”].)
III. The Distinctive Characteristics of Young Adolescents
Demonstrate That Shielding Them From Adult
Prosecution is Consistent With and Furthers the
Intent of Proposition 57.

The distinctive characteristics of young adolescents

demonstrate that shielding these youngest teens from adult
prosecution is consistent with and furthers the intent of

52
Proposition 57. Proposition 57 specified that, in enacting the act:
it [was] the purpose and intent of the people of the
State of California to:
1. Protect and enhance public safety.
2. Save money by reducing wasteful spending on
prisons.
3. Prevent federal courts from indiscriminately
releasing prisoners.
4. Stop the revolving door of crime by emphasizing
rehabilitation, especially for juveniles.
5. Require a judge, not a prosecutor, to decide
whether juveniles should be tried in adult court.
(Prop. 57, Public Safety and Rehabilitation Act of 2016 (approved
Nov. 8, 2016) § 2). The societal understanding of the

Document received by the CA Supreme Court.

characteristics of young adolescents discussed in this brief
provides support for the conclusion that prohibiting trial of 14-
and 15-year-olds in adult court furthers each of these purposes.
A. The Characteristics of Young Adolescents
Demonstrate that Keeping These Youth In
Juvenile Court Promotes Public Safety,
Emphasizes Rehabilitation, and Reduces
Wasteful Spending on Prisons.

As discussed at length above, young adolescents have

tremendous capacity for rehabilitation. (See supra Section I.C.)
Indeed, one of the most salient features of young adolescence is
an enormous potential for change. Young teens are so early in
their developmental trajectory that nearly everything about them
has yet to be determined. As a result, not only are young
adolescents capable of change, they will change as an inevitable

53
part of growing up.77 As the Supreme Court has recognized, “the
relevance of youth as a mitigating factor derives from the fact
that the signature qualities of youth are transient; as individuals
mature, the impetuousness and recklessness that may dominate
in younger years can subside.” (Roper v. Simmons (2005) 543 U.S.
551, 570 [125 S.Ct. 1183, 1196, 161 L.Ed.2d 1 [quoting Johnson v.
Texas (1993) 509 U.S. 350, 368 [113 S.Ct. 2658, 2669, 125 L.Ed.2d
290]].) Young adolescents’ heightened capacity for change
indicates that their treatment in the juvenile system furthers the
intent of Proposition 57.
First, because young adolescents are especially likely to be
rehabilitated, keeping these youth in the juvenile system is

Document received by the CA Supreme Court.

consistent with Proposition 57’s goal of emphasizing
rehabilitation. As the legislature recognized in passing SB 1391,
the juvenile system provides far more opportunities for
rehabilitation than the adult system:
The juvenile system provides age-appropriate
treatment, services, counseling, and education, and a
youth’s participation in these programs is mandatory.
The adult system has no age-appropriate services,
participation in rehabilitation programs is voluntary,
and in many prisons, programs are oversubscribed
with long waiting lists.

(Sen. Com. on Pub. Safety, Analysis of Sen. Bill No. 1391

(2017–18 Reg. Sess.) Feb. 16, 2018, p. 4.) Young adolescents,

77
Spear, supra, 24 Neuroscience & Biobehavioral Rev. at p. 421;
Seagrave & Grisso, supra, 26 Law & Hum. Behav. at p. 229;
Reppucci, supra, 27 Am. J. Cmty. Psych. at p. 319.

54
because they still have so much growing to do, are best able to
take advantage of the opportunities offered by the juvenile
system, and are especially susceptible to the positive influences
that they can provide.78 Thus, keeping these youth in the juvenile
system emphasizes rehabilitation for those most likely to benefit
from it, consistent with the intent of Proposition 57.
Further, because young adolescents are still changing and
changeable, it also promotes public safety for them to remain in
the juvenile system. While theoretically, in some circumstances,
public safety might be served by harsh sentences that deter
criminal behavior, the effectiveness of adult sentencing as a
deterrent for young adolescents is questionable due to their

Document received by the CA Supreme Court.

immature development. As the Supreme Court has recognized,
“‘the same characteristics that render juveniles less culpable than
adults’—their immaturity, recklessness, and impetuosity—make
them less likely to consider potential punishment.” (Montgomery
v. Louisiana (2016) 136 S. Ct. 718, 733 [193 L.Ed.2d 599] [quoting
Miller v. Alabama (2012) 567 U.S. 460, 472 [132 S.Ct. 2455, 2465,
183 L.Ed.2d 407]). Young adolescents, who have the greatest
deficits in future orientation and capacity to weigh risks and
consequences (see supra Section I.A), are especially unlikely to
take potential adult punishment into account to modify their
behavior.
Public safety is best served by a system that reduces

78
See supra Section I.C; see also Scott, Justice Policy, supra, 57
Wash. U. J. L. & Pol’y at p. 61.

55
recidivism so fewer crimes are committed in the future. Here
again, because of young adolescents’ innate capacity for change,
these youth are especially capable of rehabilitation. The juvenile
system, which will have at least a decade to work with 14- and
15-year-olds,79 is best positioned to shape these young people into
productive citizens. Indeed, several studies have shown that teens
who are tried as adults have higher rates of recidivism than those
who remain in juvenile court, even after controlling for other
factors, including the seriousness of the offense.80
Researchers have also found that juvenile experiences in
correctional facilities “can have a critical impact on whether
[adolescents] successfully navigate the transition to productive

Document received by the CA Supreme Court.

adulthood.”81 Heightened plasticity in the adolescent brain can
make “the brain susceptible to positive influence” but can equally
make “it vulnerable to toxic experiences.”82 For young adolescents

79
The juvenile court can maintain jurisdiction over serious
juvenile offenders until age 25. (Welf. & Inst. Code, §§ 607(b),
1769(b).) This jurisdiction may be further extended if release
would be “physically dangerous to the public.” (Id. §§ 1800 et seq.)
80
Redding, Juvenile Transfer Laws: An Effective Deterrent to
Deliquency? (2010) Office of Juvenile Justice & Delinquency
Prevention, 5–8; Fagan et al., Be Careful What You Wish For:
Legal Sanction and Public Safety among Adolescent Felony
Offenders in Juvenile and Criminal Court (2007) 69–72; Myers,
The Recidivism of Violent Youths in Juvenile and Adult Court: A
Consideration of Selection Bias (2003) 1 Youth Violence & Juv.
Just. 79, 80.
81
Scott, Justice Policy, supra, 57 Wash. U. J. L. & Pol’y at p. 57.
82
Id. at p. 59.

56
involved in the criminal legal system, correctional facilities are
the social contexts in which they experience a critical
developmental period.83 If their correctional experiences are
“harmful,” particularly if adolescents are exposed to violence and
social isolation, incarceration is “likely to be particularly
damaging at this stage of life.”84
A positive “maturation process” during adolescence depends
on several conditions of a teenager’s social context: (1) the
presence of an “authoritative” adult who provides guidance and
structure, (2) membership within a “pro-social peer group,” and
(3) participation in activities that “promote autonomous decision-
making and critical thinking.”85 Juvenile correctional facilities

Document received by the CA Supreme Court.

can create these conditions by “foster[ing] the relationship
between the young offender and one or more authoritative
adults,” limiting the influence of “antisocial peers” and
encouraging engagement with “pro-social peers,” and teaching
social, educational, and vocational skills so that adolescents can
make their own decisions and think critically.86
These conditions are far less likely to exist in adult prisons.
In adult correctional facilities, the relationships between guards
and the incarcerated have been described as “hostile and distant”

83
Id. at p. 70.
84
Id. at p. 59.
85
Id. at p. 57.
86
Id. at pp. 71–72.

57
and adult inmates may feel less responsible “to care for and
provide positive adult guidance to juvenile prisoners.”87 Moreover,
adolescents serving sentences in adult prisons are “surrounded by
antisocial peers and adults” during a lot of “unstructured time.”88
These experiences in the correctional setting can determine the
trajectory of the adolescent offender’s future life.89
While many young adolescents tried as adults can and do
overcome these obstacles to become productive citizens, the
evidence shows that the juvenile system achieves this goal far
more successfully. Therefore, keeping young adolescents in the
juvenile system is consistent with Proposition 57’s intent to
promote public safety.

Document received by the CA Supreme Court.

For the same reasons, it is also not necessary to waste
taxpayer dollars on incarcerating young teens for decades in the
adult system, and prohibiting transfer of young adolescents is
also consistent with Proposition 57’s intent to reduce wasteful
spending on prisons and to avoid court mandated releases by
reducing overcrowding.
In light of the scientific and societal consensus on the
vulnerabilities and disabilities of young adolescents, keeping
young adolescents in the juvenile justice system is consistent with
and furthers the intent of Proposition 57 by promoting public

87
Id. at p. 60.
88
Ibid.
89
Id. at p. 61.

58
safety, emphasizing rehabilitation, and reducing costs for the
adult prison system.
B. The Characteristics of Young Adolescents
Demonstrate that Keeping These Youth in
Juvenile Court is Consistent with the
Transfer Scheme Under Proposition 57.

Another purpose of Proposition 57 was to have a judge,

rather than a prosecutor decide whether a child should be tried as
an adult. This enactment was made against the backdrop of
statutory criteria for transfer that, given the evidence of their
developmental immaturity, heavily favors keeping young
adolescents in the juvenile system. (See Welf. & Inst. Code, §
707(a)(3).) Thus, when voters enacted Proposition 57’s provision

Document received by the CA Supreme Court.

that allowed judges to transfer 14- and 15-year-olds to adult
court, they also made clear that judges should only do so after
considering statutory criteria that emphasize consideration of the
very characteristics that make young adolescents particularly
inappropriate for transfer.
For example, when considering a child’s “degree of criminal
sophistication” the statute instructs that relevant considerations
include:
the minor’s age, maturity, . . . the minor’s impetuosity
or failure to appreciate risks and consequences of
criminal behavior, the effect of familial, adult, or peer
pressure on the minor’s actions, and the effect of the
minor's family and community environment . . . .

(Welf. & Inst. Code, § 707(a)(3)(A)(ii).) The scientific research

discussed above has shown that 14- and 15-year-olds are

59
especially immature—they are at the peak time in their lives for
impetuous behavior and incapacity for weighing risks and
consequences. (See supra Section I.A.) Young adolescents are also
especially subject to influence by their family, peers, and
environment, and often have extremely limited ability to extricate
themselves from criminogenic settings. (See supra Section I.B.)
Thus, it is not supportable to conclude that young adolescents
have any significant degree of “criminal sophistication.”
The statute also provides that the judge should consider
“whether the minor can be rehabilitated,” taking into account
“the minor’s potential to grow and mature.” (Welf. & Inst. Code,
§ 707(a)(3)(B)(ii).) As discussed above, scientific research has

Document received by the CA Supreme Court.

shown that young adolescents have incredible capacity to grow
and mature. (See supra Section I.C.) It is therefore impossible to
conclude that a young adolescent cannot be rehabilitated. (See
also Graham v. Florida (2010) 560 U.S. 48, 73 [130 S.Ct. 2011,
2029, 176 L.Ed.2d 825] [finding it “difficult even for expert
psychologists to differentiate between the juvenile offender whose
crime reflects unfortunate yet transient immaturity, and the rare
juvenile offender whose crime reflects irreparable corruption”].)
The statute further provides that, while the judge should
consider “the circumstances and gravity of the offense,” this
consideration should include a number of factors related to the
child’s level of culpability, including the child’s “mental state” and
“mental or emotional development.” (Welf. & Inst. Code,
§ 707(a)(3)(E).) Here again, the characteristics of young
adolescents, and their developmental status, significantly

60
diminish their culpability. (See supra Sections I.A&B; see also
Graham, 560 U.S. at 68 [characteristics of youth indicate
“transgression ‘is not as morally reprehensible’” [quoting
Thompson v. Oklahoma (1988) 487 U.S. 815, 835 [108 S.Ct. 2687,
2699, 101 L.Ed.2d 702]].) Thus, because the characteristics of
young adolescents weigh heavily against transfer under the
established criteria, it is consistent with the transfer process
contemplated by Proposition 57 to prohibit transfer of 14- and 15-
year-olds to adult criminal court.90
Real Party in Interest and its supporting amici have argued
that there are some young adolescents who commit such serious
crimes that they should be considered more mature than typical

Document received by the CA Supreme Court.

young adolescents, and therefore would meet the criteria for
transfer. (Real Party In Interest Br. at 44–45; Criminal Justice
Legal Foundation Br. at 15–16; Cal. Dist. Att’y Assoc. Br. at 45
n.5.) However, the commission of a serious crime does not
indicate heightened maturity. Rather, researchers have found
that commission of violent crimes by juvenile offenders is linked
to a lack of full maturity of the developing brain systems as well
as traumatic experiences that have disturbed normal brain
function.

90
Further supporting the proposition that 14- and 15-year-olds do
not meet the criteria for transfer, in the two years between the
passage of Proposition 57 and SB 1391 during which these
transfer criteria were utilized, no 14- or 15-year-olds were
transferred to adult court. (Cal. Dept. of Justice, Juvenile Justice
in California (2018) table 27, p. 86; Cal. Dept. of Justice, Juvenile
Justice in California (2017) table 27, p. 86.)

61
 “Increases in criminal and other behavior problems during
adolescence are due . . . to the neurological and psychosocial
immaturity that mark this developmental period.”91 Researchers
have found that “delayed, or even incomplete, maturation” of the
prefrontal cortex and the subcortical system may underlie violent
behavior in youth.92 The prefrontal cortex, implicated in the
“cognitive interpretation of emotion” is thought to “directly
regulate activation of the subcortical system,” where emotional
material is processed.93 Researchers who studied juveniles who
committed violent offenses and compared them to their “typically
developing peers” found that “dysfunction in the prefrontal-
striatal circuit . . . may be indicative of brain immaturity . . .

Document received by the CA Supreme Court.

specific to male violent juvenile offenders.”94 Thus, young
adolescents who commit violent offenses have been found to be
less mature than their developing juvenile counterparts, causing
them to be less capable of “suppress[ing] the inappropriate
expression of emotions” and “achiev[ing] a more mature cognitive

91
Monahan et al., Juvenile Justice Policy and Practice: A
Developmental Perspective (2015) 44 Crime & Just. 577, 581.
92
Chen Chen et al., Regional Homogeneity of Resting-State Brain
Abnormalities in Violent Juvenile Offenders: A Biomarker of
Brain Immaturity? (2015) 27 J. Neuropsychiatry & Clinical
Neurosciences 27, 30.
93
Ibid.
94
Ibid.

62
style.”95
The lack of brain development and maturity of violent
juvenile offenders has also been traced to their increased risk of
suffering from trauma.96 Serious and violent juvenile offenders
are “disproportionately victims of trauma, abuse, neglect, and
maltreatment during childhood, as compared to the less severe or
non-offending juvenile population.”97 This trauma affects their
“biological and psychological development” causing “neural
impairment” and “disrupting the regulatory processes central to
maintaining their normal wellbeing.”98 This leads children and
young adolescents with traumatic backgrounds to “use aggressive
solutions to solve problems [more often] than non-injured

Document received by the CA Supreme Court.

children.”99
Sociologists and psychologists have agreed that increased
maturity in adolescents leads to them desisting from crime, not

95
Ibid.
96
Farrer et al., Prevalence of Traumatic Brain Injury in Juvenile
Offenders: A Meta-Analysis (2013) 19 Child Neuropsychology 225,
227.
97
Fox et al., Trauma Changes Everything: Examining the
Relationship Between Adverse Childhood Experiences and
Serious, Violent, and Chronic Juvenile Offenders (2015) 46 Child
Abuse & Neglect 1, 2.
98
Ibid.
99
Farrer et al., supra, 19 Child Neuropsychology at p. 230.

63
increasing in delinquent and criminal behavior.100 As individuals
become better able to regulate their behavior, “they become less
likely to engage in impulsive, ill-considered acts.”101 Their
“desistance from antisocial behavior” is therefore the “product of
psychological maturity.”102 Thus, contrary to arguments that the
commission of a violent offense by a juvenile offender indicates
greater maturity, “juvenile offending reflects psychological
immaturity” already common in developing young adolescents
and heightened by traumatic disturbances in normal brain
function.103
In light of the scientific and societal consensus on the
vulnerabilities and disabilities of young adolescents, SB 1391 is

Document received by the CA Supreme Court.

consistent with and furthers the intent of Proposition 57 by
requiring juveniles for whom the statutory transfer criteria
strongly favor a finding of fitness for juvenile treatment to remain
in the juvenile system.
Conclusion
Young adolescents are characterized by changeability,
immature judgment, underdeveloped capacity for self-regulation,

100
Steinberg et al., Psychosocial Maturity and Desistance From
Crime in a Sample of Serious Juvenile Offenders (2015) Juvenile
Justice Bulletin, U.S. Department of Justice, Office of Juvenile
Justice and Delinquency Prevention 1, 2.
101
Ibid.
102
Ibid., italics added.
103
Ibid.

64
vulnerability to negative influences and outside pressures, and a
lack of control over their environment. California law has long
recognized these vulnerabilities and disabilities of young
adolescents. This consensus that young adolescents are
unfinished works-in-progress who need careful protection and
guidance supports a finding that preventing the trial of young
adolescents as adults is consistent with and furthers the intent of
Proposition 57. For the above stated reasons, the Equal Justice
Initiative respectfully urges this Court to find that SB 1391 is
constitutional.

Dated: August 6, 2020

Document received by the CA Supreme Court.

Respectfully submitted,

BRYAN A. STEVENSON
Executive Director
ALICIA A. D’ADDARIO
Senior Attorney
Equal Justice Initiative

REBECCA P. JONES
Attorney

By: /s/Rebecca P. Jones

REBECCA P. JONES
Attorney

Counsel for Amicus Curiae

65
 CERTIFICATE OF WORD COUNT

I certify that the foregoing brief was prepared on a

computer using Corel WordPerfect, and that, according to that
program, this document contains 11,197 words.

/s/Rebecca P. Jones
REBECCA P. JONES

Document received by the CA Supreme Court.

66
California Supreme Court No. S259011
Court of Appeal, Second Appellate District, Div. Six, No. B295555
Ventura County Superior Court No. 2018017144
O.G. v. Superior Court of Ventura County

PROOF OF SERVICE (CCP 1013a, 2015.5)

I declare under penalty of perjury that the following is true

and correct: I am a citizen of the United States and employed in
the City and County of San Diego. I am over the age of eighteen
(18) years and not a party to the within above-entitled action; my
business address is 3549 Camino del Rio South, Suite D, San
Diego, California 92108; on this date I served the
APPLICATION OF THE EQUAL JUSTICE INITIATIVE TO
FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE
BRIEF IN SUPPORT OF PETITIONER O.G.,
addressed as follows:

Document received by the CA Supreme Court.

Michelle Contois Cyn Yamashiro
Deputy District Attorney Markéta Sims
[email protected] Independent Juvenile
(Attorney for Real Party in Defender Program, Los
Interest) Angeles County Bar
Association
Nelson Richards [email protected]
Deputy Attorney General [email protected]
[email protected] (Amici Curiae for Petitioner)
(Amicus Curiae for
Petitioner) Susan L. Burrell
Pacific Juvenile Defender
Richard Lennon Center
Jennifer Hansen [email protected]
California Appellate Project (Amici Curiae for Petitioner)
[email protected]
(Attorneys for Petitioner) L. Richard Braucher
First District Appellate
Court of Appeal Project
Second Appellate District, [email protected]
Division 6 (Amici Curiae for Petitioner)
[email protected]

67
Attorney Willard Wiksell Bryan A. Stevenson
[email protected] Alicia A. D’Addario
(Trial Counsel) Equal Justice Initiative
[email protected]
Kent S. Scheidegger [email protected]
Kymberlee C. Stapleton (Amici Curiae for Petitioner)
Criminal Justice Legal
Foundation Jeff Rubin
[email protected] California District Attorneys
[email protected] Association
(Amicus Curiae for Real [email protected]
Party in Interest) (Amicus Curiae for Real
Party in Interest)
Michael C. McMahon
[email protected] William D. Temko
(Amici Curiae for Petitioner) Sara A. McDermott
Munger, Tolles, & Olson LLP
[email protected]

Document received by the CA Supreme Court.

[email protected]

Additionally, I served the within documents by placing a true

copy thereof enclosed in a sealed envelope, addressed as follows,
and deposited the same in the United States Mail at San Diego,
California:

Honorable Kevin J. McGee O.G.

4353 E. Vineyard Avenue (Confidential Address)
#122 (Petitioner)
Oxnard, CA 93036

I declare under penalty of perjury that the foregoing is true

and correct. Executed August 6, 2020, at San Diego, California.

/s/ Rebecca P. Jones

______________________________

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