A child's arrest is a stressful and emotional moment for a parent because it feels like your parenting skills are not the best, but you should not beat yourself because most children pass through this snoopy and mischievous stage. Regardless of age, when police detain your child for an alleged delinquent act, you should consult an attorney because the current law can make him/her spend his/her youthful stages behind cage-like walls.

Reliable and reputable attorneys at Orange County Criminal Defense Attorney Law Firm can aid you to unravel and comprehend how Senate Bill (SB) 439 can affect your child's delinquency case. We will also be by his/her side through every juvenile prosecution process to fight for his/her legal rights and best interest to achieve the best possible outcome.

An Overview of Senate Bill (SB) 439

When children are on the wrong side of the law, the kind of prosecution or jurisdiction they face is not the same as that of an adult court. The juvenile courts have discretion on how to handle minors who run afoul of the law. While the juvenile delinquency system's ultimate goal is to guide, educate, and rehabilitate minors with sustained juvenile petitions, having a criminal record at a young age can affect your child's future in many ways.

Fortunately, following the passing of Senate Bill (SB) 439 into delinquency law by Governor Jerry Brown, juvenile courts cannot exercise jurisdiction over children of a particular age bracket. According to SB 439, regardless of whether your child is facing a delinquent act or status offense charge, juvenile courts cannot assume jurisdiction over him/her if he/she is less than 12 years.

However, suppose your child delinquent act allegations involve the commission of serious offenses like rape, murder, sodomy, and other offenses we will discuss in this article. In that case, the juvenile delinquency court can assume jurisdiction over his/her delinquency case even if he/she is under 12 years.

Even under this kind of situation, the juvenile delinquency court will require the prosecutor to demonstrate beyond a reasonable doubt that there was the use of force, menace, violence, or threats of bodily physical/bodily injury during the offense's commission.

In all other less sophisticated or non-violent delinquency cases involving minors under the age of 12, it is upon counties to develop less restrictive alternatives for the child and not the juvenile delinquency court.

Although SB 439 does not mention a specific entity accountable for developing these alternatives, it hints that school health or community-based services could develop a solution or appropriate programs.

Changes in the juvenile delinquency system following the enactment or passing of SB 439 are needed because the consequences of a conviction or a sustained petition against your child could be harsh.

Before enacting SB 439, all minors below eighteen years would go through the harsh juvenile justice system for violating a criminal law. To know how SB 439 will affect your child's case if he/she is in police custody for violating a state statute or municipal ordinance, you should retain the services of a juvenile defense attorney.

Regardless of whether your child is over twelve years or less, an experienced and knowledgeable juvenile defense attorney can help him/her in many ways. For instance, an attorney can help him/her understand the possible consequences of violating a statute and offer him/her the best legal representation if the juvenile court has jurisdiction over his/her case.

Reasoning Behind Enactment of SB 439

After Senate Bill 439 or SB 439, the juvenile justice system was not the same again. Below are three main reasons behind the enactment of the new SB 439 in the juvenile justice system:

  • Interacting with the law enforcement officers and the juvenile delinquency system at a young age or under the age of 12 years can impact a child's developmental and educational results.
  • SB 439 supports the fact that a child is not a young adult, and his/her brain needs a significant time frame to mature to reason like an adult.
  • A child's interaction with the juvenile delinquency system at a young age makes him/her more likely to become a chronic truant.

About 20 states in the US have a threshold age limit for prosecuting children in the juvenile delinquency system, ranging from six to twelve years.

Before implementing SB 439 in January 2019, Massachusetts was one of the first states to limit children's age involvement with the juvenile delinquency system by making the minimum age to be twelve years. Below are the core objectives of passing SB 439:

  • Formation of alternative strategies for rehabilitating minors who are under the age of twelve years whose unlawful conduct portray the likelihood of unmet needs
  • Stopping the early criminalization of minors under the age of twelve years by setting an age limit for prosecuting them through the juvenile court to be 12 years
  • Counties must have protocols and rules that address appropriate and reasonable alternatives for prosecuting minors under the age of twelve.

Before enacting SB 439, many minors aged eleven years or above would pass through the juvenile delinquency system, even for minor wrongdoing like engaging in school fights. Unfortunately, this was possible despite the argument that early prosecution of minors in the juvenile delinquency system can significantly affect their development and future.

Initially, the juvenile delinquency system didn’t have proper and the right tools for handling small children's needs following a sustained juvenile petition. That is why the new SB 439 is a fundamental law as it puts an end to the prosecution of small children below the age of twelve years under particular conditions.

Instead of facing the juvenile justice system, this bill seeks to enhance the adoption of other alternatives and child-friendly rehabilitative services for small children on the wrong side of the law.

SB 439 Implementation Guidelines

Nowadays, when a child below the age of 12 years runs afoul with the law, there are guidelines that law enforcement officers and the juvenile court should follow for the best interest of the child and community. Below are SB 439 implementation guidelines according to section 602.1 of the Welfare and Institution Code (WIC):

  • Releasing the minor back to his/her parents' custody while considering public safety and the possible risk of the child harming himself or herself or other people around him/her
  • After counseling the minor, any additional responses or rehabilitation alternatives for him/her available through education, health, and community-based services must be least restrictive as possible.
  • Other interventions they choose to adopt regarding the minor's delinquency case must be appropriate. The aim of these interventions should be to help and protect a minor

Adoption of SB 439 Justification

Children's contact with the law enforcement officers or the juvenile court system at a young age is unneeded and could potentially lead to short-term and long-term harmful consequences to a child. Apart from that, child prosecution also necessitates high costs for attorneys, police services, detention services supervision, and probation supervision.

According to court rulings and scientific research, children’s development is different from that of an adult. Typically, children are more vulnerable due to their inability to predict the possible outcome of their actions and immaturity. Apart from that, children are flexible and more susceptible to change compared to adults.

Therefore, law enforcement officers and courts should exercise leniency when dealing with a small child because minors should not be subject to the same level of harshness as adult wrongdoers. Even with a minimum force, a child can change his/her ways within a short period to grow to a productive and industrious adult.

SB 439 seeks to protect minors from the possible adverse impacts resulting from early contacts or involvement with the juvenile justice system. Some of these impacts include:

  • Early involvement with the law enforcement or juvenile justice system affects a minor's education success and employability. It is a hassle for a minor with a juvenile criminal history/record to secure a job.
  • Children who interact with law enforcement officers at a young age are more likely to develop mental health problems because they often experience trauma, fear, stress, anger, and depression.
  • It often leads to low self-esteem issues because of the negative labeling and stigmatization associated with the juvenile justice system.
  • A minor's involvement with the juvenile delinquency system at a young age can expose him/her to criminal activities and gangs during his/her term in detention and correctional facility, which increases his/her future likelihood of imprisonment.

An Overview of Delinquents Acts Where SB 439 Will Not Apply in Your Child's Delinquency Case

As mentioned above, particular serious delinquents acts will make your child subject to prosecution in the juvenile delinquency system even if he/she is under the age of twelve. In that case, SB 439 will not apply to the child's case, and he/she might end up with a juvenile criminal record if the judge sustains a delinquency petition against him/her.

Below is an overview of delinquent acts where a minor under the age of 12 years is unprotected by SB 439:


According to Penal Code 187 PC, murder is the illegal killing of another person or fetus with malice aforethought. Malice aforethought refers to the defendant's mental intent during the alleged act's commission, which shows disregard for human life and health.

The prosecutor can file murder charges against your child as a first-degree or second-degree, depending on the facts and circumstances surrounding the delinquent act. To secure a sustained petition against your child following first-degree murder charges or allegations, the prosecutor should demonstrate to the judge beyond a reasonable doubt the elements of the crime below:

  • The child's actions were willful and premeditated
  • The child accomplished the act by use of an explosive device, poison, armor-piercing ammunition, torture, or by lying in wait
  • The child's actions invoke the felony murder statute because the killing occurs during the commission of another felony offense, like robbery

A conviction for first-degree murder as an adult can lead to twenty-five years imprisonment term, which means the possible consequences of a sustained delinquency petition for the same offense can be severe as well. Any other type of murder that does not count as first-degree murder, for example, felony murder or capital murder, is second-degree murder, and it carries less severe consequences.

All types of murder charges are typically complex, even for an adult. Without proper legal representation, your child who has so much to learn to become a productive individual could become subject to the juvenile justice system and face harsh disciplinary actions.

Depending on the unique facts of your child's case, a reliable criminal defense attorney can raise the following viable legal defense arguments to counter murder charges against your child for violating PC 187:

  • The child was acting in self-defense
  • It was an accidental killing
  • Violation of the child's constitutional rights, for example, coerced or false confessions.
  • The child did not understand what he/she was doing because of the reason for insanity.
  • It is a mistaken identity


It is against Penal Code 261 when you use threat, force, or fraud as means to convince another person to have non-consensual sexual intercourse with you, and he/she is not your wife or husband. Engaging in non-consensual sexual intercourse with another person under the following circumstances can also count as rape according to Penal Code 261:

  • The other person had a mental disorder
  • The other person was unconscious of the act
  • The other person was under the influence or intoxicated

Rape is a felony offense that can make an adult subject to eight years in state prison or formal probation. When the judge sustains a juvenile petition against your child for violating rape laws under PC 261, he/she might be subject to a term in the Division of Juvenile Justice (DJJ) facility and legal duty to register as a sex offender.

To increase the chances of achieving the best outcome in your child's rape case, you should speak with a juvenile defense attorney as soon as you can to gather pieces of evidence that may work out in your child's favor.


Like rape, sodomy is another sex crime that can make a minor under the age of twelve years subject to the juvenile justice system. Penal Code 286 PC makes it unlawful to engage in non-consensual sodomy with another person.

Typically, any penetration of a person's penis into the anus of another, regardless of how slight, is enough to count as sodomy according to Penal Code 286 PC. During prosecution, sodomy is chargeable as either a misdemeanor or a felony because it is a wobbler offense.

Do not take sodomy allegations against your child lightly, even if he/she is below the age of 12 years. The sooner an attorney intervenes in your child's case, the better because sodomy can also lead to a harsh disposition or sentence, for example, commitment to the DJJ system.

Oral Copulation

Penal Code 287 PC makes it unlawful to engage in oral copulation or intercourse with another person by using force, fear, threat, menace, or violence to make him/her consent to the act. When a child below the age of twelve years allegedly commits oral copulation, the juvenile court can take over jurisdiction of his/her delinquency case according to SB 439.

Possible consequences of a sustained juvenile petition against your child for violating Penal Code 287 PC can negatively impact his/her life because of early interaction with other children with criminal thoughts at the detention facilities.

You will need a reliable defense attorney by your child's side if he/she is facing a severe delinquent charge like oral copulation to fight for his/her best interest through every stage of the juvenile court process.

Sexual Penetration

Typically, prosecutors have a low tolerance to sex-related delinquent acts, and forcible sexual penetration is not an exemption. Forcible sexual penetration is not an uncommon delinquent act among children, especially when they are in their adolescent stages, which sometimes can begin as early as when a child is ten years old.

Forcible sexual penetration is unlawful according to Penal Code 289 PC, which defines laws for prosecuting this sex offense. Forcible sexual penetration involves the use of force, fear, violence, or threat to make another person consent to sexual penetration in the vagina or anus using a foreign object/substance.

The judge might find forcible sexual penetration allegations against your child to be true if the other person (victim) was incapable of consent. As mentioned above, a person is incapable of consent if he/she is unconscious, intoxicated, or has a mental disorder.

Since forcible sexual penetration is chargeable under the juvenile delinquency system, even when a minor is below the age of twelve years, you should retain the services of a juvenile defense attorney for your child's legal representation.

A reliable and experienced juvenile defense attorney might manage to counter these charges against your child even before they reach the juvenile court.

Possible Dispositions/Sentences a Minor Unprotected by SB 439 Can Face

Depending on the seriousness and gravity of your child's delinquency case, the juvenile court judge will come up with a reasonable and appropriate disposition that fits your child's specific wrongdoing.

Because the purpose of the juvenile delinquency system is to discipline and make a child a law-abiding and productive individual, the judge should craft a disposition or sentence that will achieve this. Below are probable dispositions/sentences a minor unprotected by SB 439 can face if the judge sustains a juvenile petition against him/her:

Formal Juvenile Probation

A child who is a "ward of the court," meaning the juvenile court as the jurisdiction over his/her delinquent act case, could be subject to formal juvenile probation at home, a relative's home, or a camp. During this probation's term, your child must comply with various conditions such as:

  • Performing community service work
  • Paying restitution to the victims if any
  • Abide by the required curfew restrictions
  • Mandatory school attendance

Division of Juvenile Justice (DJJ) Commitment

Apart from confinement in the adult prison, the most severe disposition option your child might be subject to in the juvenile delinquency system is a commitment to the DJJ. Typically, the DJJ is a rehabilitation and confinement system for minors responsible for committing severe felonies.

Confinement in a DJJ correctional detention center can impact your child the same way as confinement in an adult prison because your child will spend time with minors older than him/her. The term of confinement in a DJJ detention center is the same as the term an adult would stay in an adult prison for a conviction of the same offense.

Typically, a sustained juvenile petition for the commission of any sex offense listed under PC 290.008 (c) and offenses specified under section 707(b) of the Welfare and Institution Code (WIC) can make your child subject to DJJ commitment. Below are factors of consideration when assigning DJJ detention centers to minors with sustained juvenile petitions:

  • A child's education requirements/needs
  • A child's maturity level
  • A child's age
  • Treatment requirements and individual risks

Since the enactment of SB 439, several problems persist in the current juvenile delinquency system. Despite its excellent objectives on how to treat minors who are below the age of twelve years, the juvenile delinquency system still attracts immense criticism because of the following reasons:

  • At the DJJ detention centers or facilities, minors have a mandatory legal obligation to go to school, although they cannot come out of those cage-like walls.
  • While at these DJJ detention centers, minors do not acquire or receive adequate mental and physical health services

Find a Juvenile Defense Attorney Near Me

Most parents never think or imagine that their child can come into contact with the juvenile delinquency system. When your child under the age of 12 years runs afoul with the law, attorneys at Orange County Criminal Defense Attorney Law Firm are here for you. We can help you understand how Senate Bill 439 can work out in your child's best interest to avoid the harsh juvenile delinquency system.

We invite you to contact us at 714-740-7848 to book your initial appointment with our friendly and courteous attorneys.