No. 50387-1-IThe Court of Appeals of Washington, Division One.
Filed: October 13, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County Docket No: 01-1-02317-3 Judgment or order under review Date filed: 04/09/2002
Counsel for Appellant(s), Dana M Nelson, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122.
Marriam D90 Oliver (Appearing Pro Se), Echo Glen Children’s Center, 33010 SE 99th Street, Snoqualmie, WA 98065.
Counsel for Respondent/Cross-Appellant, Constance Mary Crawley, Attorney at Law, Snohomish Co Courthouse, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Rebecca Jane Quirk, Attorney at Law, Pr Aty of Miss Bldg Ms504, 3000 Rockefeller Ave, Everett, WA 98201-4046.
APPELWICK, J.
Marriam Oliver was charged with first degree murder in the juvenile division of Snohomish County Superior Court. Following the juvenile court’s decision to decline jurisdiction, she was convicted of one count of first degree murder and sentenced in adult court to a standard range sentence. She challenges the juvenile court’s declination on the basis that (1) the court’s failure to use a proof beyond a reasonable doubt standard at her decline hearing violated her due process rights, and (2) there was insufficient evidence to support the juvenile court’s waiver of jurisdiction. We affirm.
FACTS
On November 14, 2001, Marriam Oliver (Marriam) was charged with murdering Jerry Heimann (Heimann). Marriam turned 14 years old a few weeks before she participated in Heimann’s murder. Marriam lived with her grandmother, who was her adoptive mother, since she was 13 months old, in a `safe and healthy family environment.’ Marriam had been a good student, and excelled in athletics.
In late 2000, Barbara Opel (Opel) moved into Heimann’s home, along with her three children, to serve as a caretaker for Heimann’s mother, who had Alzheimer’s disease. Opel was the sole adult charged in Heimann’s murder.
In mid-March 2001, Opel disclosed to Marriam Oliver (Marriam) a plan to kill Heimann. Marriam was a friend of Opel’s daughter, Heather Opel (Heather). Marriam was involved in a failed attempt to kill Heimann in early April. On or about April 10, 2001, Opel enlisted the aid of 17-year — old Jeffrey Grote (Jeffrey), whom Heather and Marriam had met a few weeks previously at a roller rink, in formulating another plan to kill Heimann. On April 13, Opel, Heather, Jeffrey, and Marriam picked up Kyle Boston (Kyle), and his 12-year-old cousin, M.S., whom Jeffrey had enlisted to help with the murder. When they heard Heimann’s car pull into the driveway, Jeffrey, Kyle, and M.S. stationed themselves in the kitchen. Opel, her three children, and Marriam were downstairs as planned. Jeffrey struck Heimann with a full size aluminum baseball bat as Heimann entered through the kitchen door. Kyle and M.S. struck further blows to Heimann’s head and body with souvenir baseball bats. Kyle and M.S. fled thereafter, returned for Heimann’s car keys, and then left in his car. As had been planned, during the boys’ assault on Heimann, Marriam ascended the stairs to assist, and approached Heimann with a knife. Initially she put the knife down on the kitchen counter, reluctant to follow through with the plan. She descended the stairs, but returned when Jeffrey, Heather, and Opel yelled at her to do so. Marriam then repeatedly stabbed Heimann in the upper back and the back of the head. Jeffrey stated that he thought Heimann was dead. Marriam then struck the bat on Heimann’s neck and skull with such force that his brains and blood spilled out, remarking to Jeffrey that Heimann was now dead. Kyle and M.S. had already left the site. All the rest of the participants in the murder, along with Opel’s two younger children, participated in a thorough clean-up of the scene. This entailed scrubbing the floor and walls, wrapping up Heimann’s body, shampooing the carpet, dumping several items used in the murder in a plastic bag along with the clean-up materials, transporting the body by car to a remote area for disposal site, and later returning to the disposal site to pour corrosive acid on the body. Several days after Heimann’s murder, Heimann’s son arrived at his father’s home for a visit and discovered his grandmother alone, soiled, and eating paper to survive. In the ensuing investigation, Opel’s youngest daughter told police that Heimann was dead. When interviewed by the police, Marriam eventually made a statement admitting her participation and telling the police that Opel had promised she would pay Marriam’s admission to the roller rink if Marriam helped kill Heimann. Marriam was charged with first degree murder in the juvenile division of Snohomish County Superior Court. Upon the State’s motion, the court held a decline hearing. Marriam opposed transfer to adult court, arguing that the Kent[1] factors weighed in favor of retention, and that the State’s motion to decline should be denied unless the State proved beyond a reasonable doubt that declination would be in the best interest of Marriam or the public.
The juvenile court judge rejected Marriam’s assertion that the decline hearing should adhere to a standard of proof beyond a reasonable doubt. By a preponderance of the evidence, the court found declination of jurisdiction to be in the public’s best interest and ordered that Marriam’s case be transferred to the adult division of the Snohomish County Superior Court. Following a bench trial under stipulated facts, Marriam was tried, convicted, and sentenced in Snohomish County Superior Court to 240 months for first degree murder and 24 months for use of a deadly weapon. Marriam appeals, challenging the standard of proof used in the decline decision and arguing there was insufficient evidence to support the decline decision.
ANALYSIS I. Standard of Review
‘[A] juvenile court’s order declining jurisdiction is discretionary and is subject to reversal only if exercised upon a ground, or to an extent, clearly untenable or manifestly unreasonable.’ State v. Toomey, 38 Wn. App. 831, 834, 690 P.2d 1175 (1984). The Court of Appeals examines the entire record, including the court’s oral opinion, to determine the sufficiency of the court’s reasons for declination. State v. M.A., 106 Wn. App. 493, 498, 23 P.3d 508 (2001) (citing State v. Holland, 98 Wn.2d 507, 518, 656 P.2d 1056 (1983)). We will not disturb the juvenile court’s factual findings if they are supported by substantial evidence. M.A., 106 Wn. App. at 499. Substantial evidence exists if there is sufficient evidence to persuade a fair-minded, rational person of the truth of the declared premise. Beeson v. Atlantic Richfield Co., 88 Wn.2d 499, 503, 563 P.2d 822 (1977). Questions of law are reviewed de novo. Rivett v. City of Tacoma, 123 Wn.2d 573, 578, 870 P.2d 299 (1994).
II. Declination of Jurisdiction
Marriam asserts that the juvenile court’s failure to adhere to a proof beyond a reasonable doubt standard at her decline hearing violates her due process rights.
In Washington, the procedures for authorizing adult prosecution of a juvenile are found in RCW 13.40.110 and in case law. `Due process requires that a hearing to enable a juvenile court to decide whether to decline jurisdiction over a juvenile defendant and transfer him for adult prosecution be held before juvenile jurisdiction is declined, that defendant is entitled to counsel, and that juvenile court give reasons for its decision.’ State v. Bonds, 98 Wn.2d 1, 19, 653 P.2d 1024 (1982). When the juvenile court is asked to decline jurisdiction it may, after a decline hearing, `order the case transferred for adult criminal prosecution upon a finding that the declination would be in the best interest of the juvenile or the public.’ RCW 13.40.110(2); M.A., 106 Wn. App. at 497.
RCW 13.40.110 does not specify the standard of proof for a decline decision. In State v. Jacobson, 33 Wn. App. 529, 531, 656 P.2d 1103
(1982), review denied, 99 Wn.2d 1010 (1983), the Washington Supreme Court rejected a claim that the standard of proof for a decline hearing should be clear and convincing evidence. The Court reasoned that a preponderance of evidence standard was sufficient since the proceeding determined not ultimate guilt or innocence, but the forum in which guilt or innocence was to be found. Jacobsen, 33 Wn. App. at 531 (citing Trotter v. State, 429 N.E.2d 637, 641 (1981)). Factual determinations made by a juvenile court in declining jurisdiction must be based only on a preponderance of the evidence and may not be disturbed on appeal if supported by substantial evidence. Toomey, 38 Wn. App. at 834. We decline to adopt a standard of proof beyond a reasonable doubt for decline hearings. Marriam cites Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed.2d 435 (2000), for the proposition that ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ Apprendi, 530 U.S. at 490. Apprendi struck down a hate crime law which permitted a court, after making a factual finding about a crime, to sentence a defendant beyond the statutory sentence authorized by the jury’s verdict.[2] Relying upon Apprendi’s statement that facts are not limited to `elements,’ Marriam contends that, because the decline decision is based on facts, they `must be established by proof beyond a reasonable doubt.’ She reasons that the preponderance standard used by the juvenile court in conducting the hearing subjected her to a sentence beyond the prescribed maximum, since tried as an adult she faces a lengthier sentence than if she were tried in juvenile court.[3]
Apprendi is inapposite. Apprendi involved the sentencing phase of a prosecution. The hate crime law at issue in Apprendi increased the defendant’s sentence after facts had been presented to the jury and a finding of guilt had been made. In contrast, a decline hearing takes place when charges against the defendant are still mere allegations. Its purpose is to determine in which court a juvenile will later be tried for resolution of his or her case.[4] It is thus a jurisdictional determination, intended only to locate the appropriate forum for a defendant’s trial. A decline hearing occurs before facts have been presented to a jury or trier of fact, and does not impose upon a defendant a sentence at all, much less one greater than the prescribed statutory maximum. The juvenile court’s application of the Kent factors at Marriam’s decline hearing neither followed a finding of guilt, nor increased her sentence after facts were presented to the trier of fact. Only after the court, trying her as an adult, found her guilty beyond a reasonable doubt was Marriam subject to sentencing.
Our decision here comports with the Ninth Circuit’s recent decision holding that Apprendi `has no bearing in transfer proceedings.’ United States v. Miguel, 338 F.3d 995, 1004 n. 38 (9th Cir. 2003). Marriam also asserts that In re Winship dictates that ‘[t]he proof beyond a reasonable doubt standard is part of the due process applied to juvenile court proceedings.’ In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368
(1970). The language of In re Winship, however, clearly limits itself to adjudicatory proceedings. It `present[ed] the single, narrow question whether proof beyond a reasonable doubt is among the `essentials of due process and fair treatment’ required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.’ In re Winship, 397 U.S. at 359 (emphasis added). A decline hearing is not an adjudicatory proceeding. `Unlike a determination of delinquency or guilt, a determination of whether to decline jurisdiction does not directly result in confinement or other punishment, and a decline hearing is not, therefore, an adversary proceeding.’ M.A., 106 Wn. App. at 503 (citing In re Harbert, 85 Wn.2d at 725). Marriam’s due process rights were not violated when the juvenile court failed to use a standard of proof beyond a reasonable doubt at her decline hearing.
III. Sufficiency of Evidence
Marriam also asserts that under any standard of proof, the juvenile court failed to `appropriat[ely] consider[ ]’ the Kent factors and erred in its evaluation of evidence presented at the decline hearing.
In determining whether the juvenile court should decline jurisdiction, the court considers the Kent factors:
(1) The seriousness of the alleged offense to the community and whether the protection of the community requires [declination].
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner.
(3) Whether the alleged offense was against persons or against property . . . .
(4) The prosecutive merit of the complaint . . . .
(5) The desirability of trial and disposition of the entire offense in one court when the juvenile’s associates in the alleged offense are adults. . ..
(6) The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude, and pattern of living.
(7) The record and previous history of juvenile . . . .
(8) The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services, and facilities currently available in the [j]uvenile [c]ourt.[5]
Kent, 383 U.S. at 566-67. A juvenile court’s decision to decline jurisdiction is limited and is not properly exercised unless appropriate consideration is given to the Kent standards. Its failure to do so is an abuse of discretion. M.A., 106 Wn. App. at 499.
In addition to findings of fact and conclusions of law, the juvenile court judge prepared a 38-page decision on decline of jurisdiction delivering a carefully reasoned presentation analyzing the eight Kent factors as applied to Marriam and the other three juvenile offenders before him. The juvenile court found that the fifth and the seventh Kent factors favored retaining jurisdiction, and that the remaining six Kent factors merited decline of jurisdiction. Marriam asserts that the juvenile court improperly concluded that first and eighth Kent factors warranted transfer to adult court. Therefore, we focus on the court’s analysis of those factors. Marriam asserts that in analyzing the first Kent factor, the juvenile court erred in concluding that protection of the community warranted decline of jurisdiction. We disagree.
The first Kent factor requires the court to consider `the seriousness of the alleged offense and whether the protection of the community requires waiver.’ M.A., 106 Wn. App. at 497-98. In discussing the first Kent factor, the juvenile court concluded that Heimann’s murder was:
extremely cruel, its cruelty perhaps only exceeded by its viciousness. The victim’s death was literally caused by the hands of the [r]espondents. It did not occur at a distance, either physically or psychologically. The respondents were close enough to hear his shock and confusion, to see the injuries they inflicted and to feel life leave his body.
The record contains substantial evidence to support the juvenile court’s description of Heimann’s murder and its conclusion that the seriousness of Heimann’s murder favored waiver of jurisdiction. The juvenile court did not err in concluding that the first Kent factor favored waiver of jurisdiction.
The juvenile court discussed the sixth factor in tandem with the eighth factor, concluding that both factors supported decline of jurisdiction.
The sixth Kent factor requires the court to consider `the juvenile’s sophistication and maturity of the juvenile as determined by consideration of his or her home, environmental situation, emotional attitude, and pattern of living.’ M.A., 106 Wn. App. at 497-98. The eighth Kent factor requires the court to consider `the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile [if found to have committed the alleged offense] by the use of procedures, services and facilities [currently available to] the juvenile court.’ M.A., 106 Wn. App. at 497-98.
The juvenile court found that Marriam’s grandmother and aunt had provided her a `loving, stable and nurturing environment’ and had given her `guidance and direction.’ The court also found that notwithstanding Marriam’s `supportive family environment, academic success, athletic skills, goals and aspirations, and leadership skills, she allowed herself to be drawn into events that contradicted all of these characteristics.’ Addressing the disjunct between Marriam’s personal characteristics and her participation in Heimann’s murder, the court observed that ‘[t]here is no explanation offered for this behavior. This then raises the question of how rehabilitation occurs for a young girl whose only apparent behavior aberration is senseless killing. This question, too, remains unanswered.’ Based on the evidence before it, the juvenile court was:
not persuaded . . . that Marriam would take advantage of services available at JRA. Her involvement in the alleged offense and in an earlier alleged attempted offense, her behavior during the alleged offense, her behavior while in [d]etention, particularly the manipulative behavior, and the lack of an explanation for the behavior during the alleged offense all lead the [c]ourt to the conclusion that declining jurisdiction best serves the interest of community protection.
In addressing community protection and safety, the judge noted that `as each of the experts acknowledged, there are no guarantees with respect to projected outcome.’ The court concluded that the juvenile court’s rehabilitation services would not be `adequate protection of the public’ and, therefore, supported declination.
Marriam objects that the juvenile court erred in overemphasizing forensic psychologist Bruce Olson’s lack of explanation for why Marriam participated in Heimann’s murder to arrive at its decision to decline in its analysis of the Kent factors. Olson testified about risk assessment of juveniles, but was unwilling to testify as to Marriam’s future dangerousness. He also testified that he had not `been given the opportunity . . . to find out directly’ from Marriam more about her behavior, and thus had `no way of explaining her behavior.’
Marriam also contends that the juvenile court erred because it did not rely upon testimony by Marty Beyers, a child psychology expert. Beyers testified that children’s brains keep developing until late adolescence, becoming more able to control impulses as the child matures; and that a 13 — year-old girl’s `moral development has been found to revolve around being loyal in their relationships.’
The court did not, as Marriam claims, rely exclusively upon Olson’s testimony in reaching its conclusion; nor did the court overlook Beyer’s testimony. The court took account of the conflicting evidence presented. Of Olson’s testimony, the court stated: `If Marriam’s behavior is unexplained, the [c]ourt is hard pressed to understand how either Dr. Olson or the [c]ourt can conclude that JRA services can treat and modify that behavior.’ The court also observed that Beyer did not `adequately explain . . . why amenability to rehabilitation exists when the cause of the alleged violent behavior remains unexplained.’
‘[T]he trial court is in the best position to evaluate the credibility of witnesses. We will not substitute our judgment and intrude upon a trial court’s credibility findings.’ State v. Frazier, 82 Wn. App. 576, 589
n. 13, 918 P.2d 964 (1996) (internal citations omitted). The court also considered other testimony in its analysis of the sixth and eighth Kent factors. It noted Marriam had been involved in an earlier alleged attempted offense against Heimann and had engaged in `manipulative behavior’ during detention. Cathy-Lynne Aiko Barkdoll, Marriam’s probation counselor, had recommended waiver. Aiko Barkdoll had testified that Marriam’s `very deliberate role’ in Heimman’s murder, her suspensions from school, and the seriousness of the crime all heightened her concerns for community safety.
Marriam also asserts that the juvenile court’s factual finding that, tried as an adult, Marriam would be placed in a Department of Corrections (DOC) program at Echo Glen, a JRA facility for juvenile girls, is not supported by the evidence.[6] Her argument is based on testimony at trial that placements of juvenile girls tried as adults at Echo Glen are contingent upon whether the facility’s provider contract is renewed, and that therefore Marriam’s placement is uncertain. Marriam apparently reasons that if she were tried as a juvenile her placement at Echo Glen would be assured, thereby increasing her chances at being successfully rehabilitated and thus diminishing any threat to community safety. This argument has no merit.
As stated above, the eighth Kent factor requires the court to consider `the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile by the use of procedures, services, and facilities [currently] available in the juvenile court.’ M.A., 106 Wn. App. at 497-98. We first note that `the juvenile court is not required to balance the two parts of the eighth factor. While it must consider both, `the public interest alone clearly permits declination under the language of RCW 13.40.110.” M.A., 106 Wn. App. at 505 (quoting Toomey, 38 Wn. App. at 836 n. 4). The juvenile court did consider the rehabilitation services available to juveniles through the JRA. Comparing services for offenders tried in juvenile court and those tried as adults, it noted that ‘[a] key difference in the delivery of services is DOC will have a much greater time within which to offer [those] services than will JRA.’ Second, the Kent factors do not require the court to consider the facilities available to an offender tried as an adult. Third, Marriam’s objection is based on speculation about the future; Kent obligates the court to evaluate only services `currently’ available. The juvenile court did not err when it stated that Marriam would be placed at Echo Glen.
In conclusion, we find that the record contains substantial evidence supporting the juvenile court’s conclusion that protection of the community favored decline of jurisdiction. The juvenile court did not err in finding that the eighth Kent factor favored decline of jurisdiction. Further, the juvenile court properly considered the Kent factors in arriving at its decision to decline jurisdiction. Considering all of the factors, clearly a preponderance of the evidence supports the juvenile court’s decision. No abuse of discretion occurred. .
We affirm.
GROSSE and COLEMAN, JJ., concur.
At age 21, a juvenile convicted as a juvenile is released with no ongoing supervision. Thus, had the juvenile court retained jurisdiction in this case, Marriam would remain confined only until her 21st birthday, or approximately seven years. Tried for first degree murder as an adult, Marriam was subject to a life sentence, the statutory maximum set forth in the SRA for first degree murder. Following a trial in which the fact finder determined every element of the crime with which she was charged beyond a reasonable doubt, Marriam was sentenced to a 240-month standard range sentence and a 24-month deadly weapon enhancement. Following her release, a period of community custody, 24 to 48 months, or a period of earned release, whichever is longer, will be imposed. Sentencing under the SRA does not exceed the statutory maximum.