This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the Welfare of:
Affirmed; motion granted
Hennepin County District Court
File No. 27-JV-06-1840
Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant G.T.A.)
Mike Hatch, Attorney General,
Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Ross, Judge.
On appeal from an order certifying G.T.A. for adult prosecution, G.T.A. argues that the district court erred by finding probable cause that he committed first-degree aggravated robbery and assault for the benefit of a gang and by granting the state’s adult-certification motion. G.T.A. further challenges the constitutionality of the presumptive-certification statute. Because probable cause supports all of the charged offenses, the record supports the juvenile court’s decision to certify G.T.A., and the presumptive-certification statute is constitutional, we affirm.
G.T.A. challenges a juvenile court’s order certifying his case for adult
prosecution. In February 2006, the state
filed a delinquency petition in juvenile court alleging that G.T.A. committed
first-degree aggravated robbery, second-degree assault, and, based on the
assault, a crime for the benefit of a gang.
The state later moved to certify G.T.A. for prosecution as an
adult. For purposes of certification, courts
presume that factual allegations in a delinquency petition are true. In re
state’s petition alleged that during a late morning in January 2006, G.T.A. and
R.O.R.C., another juvenile, parked a vehicle near
G.T.A. admitted that he stabbed E.P.R. R.O.R.C. told officers that he and G.T.A. were driving by the school when they saw E.P.R. flashing gang signs. G.T.A. stated that he recognized E.P.R. as someone he had fought with about one year earlier while G.T.A. was a student at the school. G.T.A. and R.O.R.C. both admitted to being affiliated with the Sureños 13 gang. E.G. stated that as the two boys were running away from the school after the assault, they shouted, “F--k the VLs!” and “We are going to get you!” several times. Police understood “VLs” to refer to the Vatos Locos, a rival gang. Although E.P.R. denied being a member of the Vatos Locos, he admitted that he had been friends with some members previously.
Following the petition, the state moved to certify G.T.A. for prosecution as an adult under Minnesota Statutes section 260B.125, subdivision 3 (2004), which provides for presumptive adult certification when the accused juvenile is sixteen or seventeen years old and is charged with an offense for which imprisonment is the presumptive sentence. G.T.A. challenged whether probable cause existed to support the robbery and crime-for-the-benefit-of-a-gang charges. The district court found that probable cause existed for all of the charges. After ordering and reviewing the results of a certification study and a psychological evaluation and holding a hearing, the court granted the state’s adult-certification motion. G.T.A. argues on appeal that probable cause does not support two of the three charges, that the record does not support adult certification, and that the statute permitting presumptive certification is unconstitutional.
D E C I S I O N
first address G.T.A.’s assertion that probable cause does not support two of
the charges. The district court may not
order certification for trial as an adult unless it finds probable cause to
believe the juvenile committed the offenses alleged in the delinquency
petition. Minn. Stat. § 260B.125,
subd. 2(5) (2004). The court may
consider the facts set forth in the charging document as well as any police
reports attached to the document to determine whether probable cause exists.
aggravated robbery is a robbery committed by a person armed with a dangerous
weapon. Minn. Stat. § 609.245, subd. 1
(2004). A robbery requires the taking of
personal property either from another person or in the presence of another person
while using or threatening imminent force to overcome the person’s
G.T.A. next challenges whether probable cause supports the state’s allegation that he assaulted E.P.R. for the benefit of a gang. A crime committed for the benefit of a gang is a substantive offense. State v. Chuon, 596 N.W.2d 267, 270 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999). A person is guilty of the offense when he commits a crime “for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang, with the intent to promote, further, or assist in criminal conduct by gang members.” Minn. Stat. § 609.229, subd. 2 (2004).
The record supports the district court’s finding of probable cause on this charge. Asked why he punched E.P.R., R.O.R.C. allegedly told officers that E.P.R. flashed gang signs at them as they drove by the school. E.P.R. acknowledged that he used to associate with members of the Vatos Locos gang, and G.T.A. admitted that he was a member of the Sureños 13 gang. E.G. reported that, after the stabbing, G.T.A. and R.O.R.C. shouted disparaging references to the Vatos Locos. Police officers also recovered from the stopped van a videotape showing R.O.R.C. allegedly flashing gang signs at the camera. G.T.A. admitted that he was operating the video camera, and the date-and-time stamp on the videotape indicates that it was recorded only minutes before they arrived at the high school and allegedly attacked E.P.R. Viewed together, these facts support the district court’s determination of probable cause on the charge of committing a crime for the benefit of a gang.
argues that E.G.’s report of the disparaging gang-related statements is
unreliable because she is the victim’s girlfriend and she was the only person
who claimed to hear the remarks. We
decline to weigh the witness’s credibility, but we note that the failure of
corroboration does not render the claim implausible; of the four people present
at the time of the assault, two allegedly committed the assault, and one, E.P.R.,
had collapsed from a stab wound when E.G. asserts she heard yelling. The district court appropriately relied on
the information before it to decide probable cause, and we determine that the
statement adds to the other indicia of gang-relatedness for that purpose. This court has upheld a conviction of
committing a crime for the benefit of a gang when the defendant spoke about his
gang before shooting a person and exclaimed “Villa Lobos for life” immediately
after shooting him. State v. Carillo, 623 N.W.2d 922, 929-30 (Minn. App. 2001), review denied (
We turn to G.T.A.’s challenge to adult certification. When the state alleges that a juvenile who is
at least 14 years old committed an offense that would be a felony if committed
by an adult, the juvenile court may certify the case to the district court to address
the allegations according to procedures controlling adult criminal
violations. Minn. Stat. § 260B.125,
subd. 1 (2004). Adult certification is
presumed if the child is 16 or 17 years old at the time of the alleged offense
and the presumptive sentence for the offense is imprisonment.
G.T.A. raises two challenges to the application of the presumptive-certification statute in this case. First, he argues that this case does not satisfy the statutory requirements for presumptive certification. Second, he argues that he rebutted the presumption of certification and that public safety is best served by using extended-juvenile jurisdiction rather than adult certification. The record does not support either claim.
argument that his case is inappropriate for presumptive certification rests on
his assertion that two of the charges lack probable cause. As we have stated, probable cause supports
the aggravated-robbery and crime-for-the-benefit-of-a-gang charges. G.T.A. was 16 years old when he committed the
alleged offenses. The presumptive
sentence for first-degree aggravated robbery is 48 months’ imprisonment.
also are not convinced by G.T.A.’s argument that the district court wrongly
determined that he did not rebut the certification presumption with clear and
convincing evidence that retaining the proceeding in juvenile court serves
public safety. To determine whether
public safety is served by adult certification, the district court must consider
six factors: (1) the seriousness of the alleged offense as it relates to
community protection; (2) the child’s culpability in committing the offense;
(3) the child’s prior record of delinquency; (4) the child’s programming
history; (5) the adequacy of the punishment or programming available in the
juvenile justice system; and (6) the dispositional options available for the
child. Minn. Stat. § 260B.125, subd.
4 (2004). The court must give greater
weight to the factors addressing the seriousness of the alleged offense and the
child’s prior delinquency record.
The record supports the district court’s finding that G.T.A. did not rebut the presumption that adult certification is appropriate in his case. The first factor addresses the seriousness of the offense. G.T.A. and R.O.R.C. allegedly committed an unprovoked attack on school grounds during the daytime. E.P.R. had trouble walking and sitting for several weeks because of his injury. The record suggests that only the protection of his coat saved him from a more serious injury or death. School officials reported that the offense had a significant impact on the school because students feared exacerbated gang tension and more violence. The record supports the district court’s conclusion that this offense was “extremely serious.”
The record also supports the court’s finding on the second factor that G.T.A. “appears completely culpable.” He allegedly fully participated in attacking E.P.R. He possessed the knife and he stabbed E.P.R. He admitted during an interview for the certification study that he is aggressive, likes to fight, and carries a knife for reasons other than self-defense. During his psychological evaluation, G.T.A. described E.P.R. as “my enemy,” and noted that although what he did was wrong, “[E.P.R.] deserved it.”
The third consideration is G.T.A.’s prior record of delinquency. In addressing this factor, the court may consider nonadjudicated behavior. In re Welfare of D.T.N., 508 N.W.2d 790, 793 (Minn. App. 1993), review denied (Minn. Jan. 14, 1994). The district court found that G.T.A. has “a small prior record of [j]uvenile [c]ourt delinquency.” The court noted that the present case marked G.T.A.’s first violent offense, but he had two felony property-damage cases pending based on gang-related graffiti. He additionally had pending charges for committing misdemeanor property damage and giving false information to police. G.T.A. has had multiple police contacts, several warrants for failing to appear in court, and behavioral problems during prior stays in the juvenile detention center. G.T.A. has several gang tattoos and police officers and other community members familiar with G.T.A. reported that he has become more heavily involved in gang activity during the past few years. A member of the gang strike force reported that G.T.A. is a gang recruiter and is known as a “hard-core” and dangerous person.
On the fourth public-safety factor, the court found that G.T.A. has a short programming history and that he failed to use public school resources. For his past behavior, the juvenile court had ordered G.T.A. to complete six days of sentence-to-serve; he completed only three days. The certification study noted G.T.A.’s lack of participation in structured settings. He had not been enrolled in school for over one year and was frequently truant and noncompliant with a school-support system when he was enrolled.
In addressing the adequacy of punishment and programming available in the juvenile justice system, the district court noted that an extended-juvenile jurisdiction designation would provide the juvenile court with approximately three and one-half years of jurisdiction over G.T.A. Although G.T.A. presented documentation that Glen Mills Schools would accept him, the court found the placement neither suitable nor appropriate. The evaluating psychologist noted that G.T.A. would likely comply with programming, but the probation officer who submitted the certification study observed that G.T.A. appeared to have “little investment in or orientation towards changing his delinquent behavior.”
Overall, the record supports the juvenile court’s determination that G.T.A. did not rebut the certification presumption by clear and convincing evidence. Both the psychological evaluation and the certification study recommended adult certification. G.T.A. focuses much of his challenge to the court’s certification decision on statements in the evaluation and certification study. But the district court made independent findings that are supported by the record. G.T.A. also complains that the court emphasized the seriousness of the offense, but the statutory provisions addressing certification expressly direct the court to give greater weight to this factor. Minn. Stat. § 260B.125, subd. 4. G.T.A. has also not presented a compelling argument that the court relied on unreliable hearsay to support its findings. We therefore affirm the district court’s determination that G.T.A. failed to rebut the presumption of adult certification.
final challenge regards the constitutionality of the adult-certification
scheme. We presume that
asserts that Minnesota Statutes section 260B.125, subdivision 3, violates
the equal protection clauses of the state and federal constitutions. An equal-protection challenge under the
argues that the presumptive-certification statute is unconstitutional because
it treats older juveniles differently than younger juveniles and empirical
studies have discredited any claimed basis for making this distinction. We have already held that the
presumptive-certification statute does not violate principles of equal
G.T.A. asserts that this
case differs from L.J.S. because,
unlike the juvenile in that case, G.T.A. contends that he is in a suspect
class. But G.T.A. fails to indicate a
suspect class. Age-based classifications
are not suspect.
also find unpersuasive G.T.A.’s argument that Roper undermines our holding in L.J.S. In Roper, the Supreme Court held that executing offenders under
eighteen years old violates the Eighth Amendment’s prohibition of cruel and
unusual punishment. Roper, 543
G.T.A.’s reliance on Roper and social science literature as
It is true that the Court
also recognized that differences between juveniles and adults argue against justifying
the execution of juveniles, based on the penological reasons for the death
penalty, retribution and general deterrence.
G.T.A. further argues that, under the federal constitution, the court should apply a strict-scrutiny standard of review to section 260B.125, subdivision 3, because deprivation of liberty is a fundamental right. But a presumptive-certification proceeding does not result in denial of a liberty interest; the statutory presumption “merely determines which court will try the case and evaluate the elements of the offense.” L.J.S., 539 N.W.2d at 413.
Affirmed; motion granted.