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Proposition 21 – When a Child Can Be Tried as an Adult in the State of California

In the State of California, Proposition 21 gives court judges the authority to determine whether a juvenile, of at least sixteen years of age, will be tried as an adult or as a juvenile. A juvenile between the ages of 14 and 16 may only be tried as an adult if the criminal offense is a serious violent crime or sexual assault.

The following are a few examples of the types of crimes in which a juvenile between the ages of 14 and 16 may be tried as an adult in the State of California:

  • Rape (including spousal rape) by force, threat of bodily harm, or violence;
  • Murder (only if the child personally committed the act of murder);
  • Lewd act on a child under the age of 14 using force, threat of bodily harm, or violence;
  • Forcible sex in concert with another;
  • Sodomy using force, threat of bodily harm, or violence; and
  • Oral copulation using force, threat of bodily harm, or violence.

The justice court will make a determination as to whether or not the juvenile is fit to stand trial as an adult. This is a very important step in the justice court system.  The outcome of this decision will determine whether or not a juvenile will receive any special redhibitory treatment, training or will be able to participate in special programs offered through the juvenile system.  For example, a juvenile’s criminal record could be sealed from public record.  If a juvenile’s record is sealed, any record of an arrest, charges filed and a criminal conviction could be hidden from the public record.  When a criminal record is sealed, the criminal record cannot be found in background checks and the individual is legally permitted to not disclose their past juvenile criminal record.  As you can imagine, once a criminal record is sealed, the individual is able to put their past behind them and start anew when seeking employment, special licensure, loans, or government grants.

The court will determine whether your child will be tried as an adult or as a juvenile using the following set of factors:

  • The circumstance and gravity of the offense;
  • The child’s level of criminal knowledge and sophistication;
  • If the child could be rehabilitated before the jurisdiction of the juvenile court expires;
  • The child’s criminal history, past criminal record; and
  • A history of past rehabilitation success.

Should the final determination of the court find that the juvenile must be tried as an adult, and if the juvenile is found guilty, the juvenile could receive the equivalent punishment that an adult would ordinarily receive.

California’s Three Strikes Law – Does it Apply to Juveniles?

It may.  Whether or not California’s Three Strike Law applies to your child’s criminal case will depend on the type of offense committed and the type of offenses in his or her criminal record.  In California, the Three Strikes Law can be applied if your child commits certain felonies that involve gang related activities.  In California, a conviction of a crime with a “gang enhancement” counts as “one strike” toward California’s Three Strikes Law.

Should You Retain a Private Attorney for a Juvenile Case?

If your child has been arrested and charged with a crime, their future is at stake.  Initially, some parents believe that the punishment should fit the crime and their child could learn a valuable lesson.  Unfortunately, this is not always the case.  In fact, if your child is exposed to the juvenile justice system and especially if they end up serving time in a juvenile hall or detention center, they will endure enormous mental and educational performance issues. Although every child needs to learn how to become a good citizen, studies show rehabilitation is best for the child and is best for society.  California has passed laws to support these findings.  Therefore, the courts have become more accepting of alternative forms of punishment and rehabilitation.  When you retain the legal services of Attorney Wesley J. Schroeder, you can be assured that he is sensitive to your child’s wellbeing and will fight to protect his or her future.

Contact Our Juvenile Court Attorney

A conviction of any criminal offense can have lifelong repercussions for your child especially if they are tried as an adult.  If you or your child has been charged with a criminal offense in San Jose or Santa Clara, it is essential that you talk with our dedicated and experienced San Jose Criminal Defense Attorney.  Please call 408.277.0377 today to schedule your initial consultation with Attorney Wesley J. Schroeder.


Wesley Schroeder, Attorney at Law
181 Devine Street
San Jose, CA 95110
Phone: 408-277-0377
Monday – Friday 9am-5pm or by appointment