 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                   DIVISION ONE
                         Respondent,
                                                   No. 78591-5-I (consol. with
               v.                                  No. 78660-1-I)

 CRISTIAN ALEXANDER QUIJAS,                        PUBLISHED OPINION

                        Appellant.                 FILED: February 18, 2020


       DWYER, J.    —   Cristian Quijas, born on November 27, 2001, was a juvenile

when he was charged with murder in the second degree. After a hearing on the

State’s motion for a discretionary decline, Quijas was declined to superior court,

where he pled guilty and was sentenced. He now appeals from the decline

order. Because the juvenile court did not rule on Quijas’s claim that the decline

proceeding was improperly influenced by implicit or explicit racial bias, and

because Quijas is now an adult, we reverse and remand to the superior court for

a new hearing on whether declination was appropriate.



       In March 2017, Cristian Quijas was 15 years old and living with his mother

in Burlington. He was a member of a local gang, the Surenos (Southsiders),

which had a rivalry with another gang, the Norteños (Northsiders). Angel

Estrada, a member of the Northsiders, was the boyfriend of Quijas’s sister, C.Q.

Quijas took issue with Estrada dating his sister, as did other members of the

Southsiders. Estrada was 17 years old in March 2017.
No. 78591-5-1/2

        On March 30, 2017, Marcia Thompson, the mother of Quijas and C.Q.,

agreed to babysit C.Q.’s infant child while C.Q. spent time with Estrada. C.Q.,

accompanied by Estrada, drove to Thompson’s apartment to drop off the child.

The apartment was located on a residential street. C.Q. entered the home.

Estrada stayed outside in the vehicle C.Q. had driven because Quijas and Daniel

Gracidas, another Southsider, were inside the apartment.

        Quijas attempted to go outside to confront Estrada but was restrained by

Thompson. After C.Q. returned to the vehicle and began to drive away, Quijas

and Gracidas ran out of the apartment and began chasing the car. C.Q. was

aware that Gracidas had given Quijas a handgun earlier that evening.

        C.Q. pulled over when Estrada attempted to exit the moving vehicle in

order to confront Quijas and Gracidas. Quijas and Estrada began a physical

altercation, during which C.Q. heard Quijas call Estrada a “fucking buster”—

“buster” being a slang term for a rival gang member—and yell “die, buster bitch.”

During the fight, Quijas produced the handgun and shot Estrada twice. After

Estrada collapsed to the ground, Quijas shot him thrice more. Five bullets were

later removed from Estrada’s body. Quijas and Gracidas fled the scene, but

Quijas was soon thereafter arrested at the residence of an adult Southsiders

member.

        On April 4, 2017, Quijas was charged with murder in the second degree in

juvenile court. On that same day, the State filed a motion for discretionary

decline to adult court. The five-day decline hearing commenced on October 11,

2017.



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No. 78591-5-1/3

       At the hearing, the juvenile court heard testimony from officers of the

Burlington and Mount Vernon Police Departments, Quijas’s probation officer,

Burlington-Edison High School’s assistant principal, a Department of Corrections

officer, and defense expert Dr. Ronald Roesch, a psychologist. Through this

testimony, the court learned that Quijas had associated with the Southsiders

gang since the age of 12 and, from this age forward, he had a series of

problematic encounters with law enforcement.

       At 12, Quijas was arrested for stealing paint and painting gang graffiti on

property and vehicles. At 13, when police contacted him and other juveniles

smoking marijuana, he brandished a knife and was arrested for obstructing. Also

at 13, he was charged with theft. Thereafter, he accrued numerous violations of

court orders, including orders to not trespass at a local mall, to not possess

weapons or gang attire, and not to be outside home unsupervised. The court

heard testimony that Quijas sought out firearms, used both marijuana and pills,

and got into fights at school.

       Quijas did not attempt to justify his actions with regard to killing Estrada

but argued for retention of juvenile court jurisdiction. Dr. Roesch noted the

adverse effect of a broken home on Quijas’s psychological development—

Quijas’s father was deported when Quijas was seven years old—and testified

that Quijas’s gang activity suggested a lack of capacity to appreciate the

consequences of his actions and a juvenile desire to fit in with his peers.

       In his briefing on the motion for discretionary decline, Quijas, who is

Hispanic, also alleged that juvenile court jurisdiction is declined, both in Skagit



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 No. 78591-5-1/4

 County and statewide, in a racially disproportionate manner. The primary

 evidence for this contention was a 2014 bulletin by the Washington State

 Partnership Council on Juvenile Justice, which stated that, despite youths of

color comprising only one-third of Washington’s youth population, black and

 Hispanic youths alone comprised 55.7 percent of the state’s discretionary

juvenile decline cases.1 Quijas’s attorney also presented evidence that, between

2008 and 2017, Hispanic youths in Skagit County made up 34 percent of the

local school population but 79 percent of the youth declined from juvenile court.

Also according to these statistics, only 21 percent of Hispanic youths in the

county had their cases sent back to juvenile court from the superior court after an

automatic decline, compared with 30 percent of white youths.2 However, only 4

of the 53 cases on record involved discretionary declines, while 12 of the 53 saw

no disposition at all.

         On October 27, 2017, the juvenile court entered its findings of fact and

conclusions of law and granted the motion for discretionary decline. The court

did not, however, anywhere in its decision, acknowledge Quijas’s proffered

evidence of discriminatory practices. Nowhere did it address the assertions of

implicit or explicit bias raised by the admitted evidence. After his case was


         I   WASH. STATE P’SHIP COUNCIL ON JUVENILE JUSTICE,    A SUMMARY OF WASHINGTON STATE
 DATA AND RECENT STUDY FINDINGS: THE TRANSFER OF YOUTH (UNDER AGE 18) TO THE ADULT
 CRIMINAL JUSTICE SYSTEM (undated),
 htt~s://www.dcyf.wa.pov/sites/defauIt/fiIes/pdf/decljne Final. odf [https:Ilperma.ccI5C5T-XRT7].
          2 RCW I 3.04.030(e)(v)(A) through (C) list offenses that warrant automatic decline from

juvenile to adult court. RCW 13.04.030(e)(v)(C)(lll) provides that, in cases when a juvenile has
 been automatically declined to adult court, “[t]he prosecutor and respondent may agree to
juvenile court jurisdiction and waive application of exclusive adult criminal jurisdiction in (e)(v)(A)
through (C) of this subsection and remove the proceeding back to juvenile court with the court’s
approval.”



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No. 78591-5-1/5

directed to the superior court, Quijas entered a plea of guilty. On June 19, 2018,

the court sentenced Quijas to confinement for 180 months. Quijas now appeals

the juvenile court’s decision on the motion for discretionary decline.



       Quijas contends that the juvenile court erred by declining jurisdiction. He

asserts that the court based its decision solely on the seriousness of the crime

with which Quijas was charged. We disagree. The record demonstrates that the

juvenile court considered each of the eight required factors and that substantial

evidence supports the court’s finding with respect to each factor.

       A juvenile court’s decision to decline jurisdiction is discretionary and is

subject to reversal only when it is manifestly unreasonable or based on clearly

untenable grounds. State v. M.A., 106 Wn. App. 493, 498, 23 P.3d 508 (2001).

The court’s factual findings will not be reversed if they are supported by

substantial evidence. M.A., 106 Wn. App. at 498. Substantial evidence is that

which is sufficient to persuade a fair-minded, rational person of the truth of the

premise. State v. Ware, 1 11 Wn. App. 738, 742, 46 P.3d 280 (2002).

       RCW 13.40.110(3) states:

       The court after a decline hearing may 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. The court shall
       consider the relevant reports, facts, opinions, and arguments
       presented by the parties and their counsel.

       The State has the burden of proving by a preponderance of the evidence

that declining jurisdiction is in the best interest of the juvenile or the public. State

v. Massey, 60 Wn. App. 131, 137, 803 P.2d 340 (1990). In determining whether



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No. 78591-5-1/6

to decline jurisdiction, the juvenile court must consider eight factors, originally

enumerated by the United States Supreme Court in Kent v. United States, 383

U.S. 541, 566-67, 86S. Ct. 1045, 16 L. Ed. 2d 84(1966). Our Supreme Court

has adopted the Kent factors to govern decline hearings in Washington. See

State v. Williams, 75 Wn.2d 604, 606-07, 453 P.2d 418 (1969); see also Massey,

60 Wn. App. at 137.

       The Kent factors are:

       (1) the seriousness of the alleged offense and whether the
       protection of the community requires waiver; (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 accomplice in the alleged
       offense are adults; (6) the juvenile’s sophistication and maturity as
       determined by consideration of his or her home, environmental
       situation, emotional attitude, and pattern of living; (7) the juvenile’s
       record and previous history; and (8) 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 available in the juvenile court.
MA., 106 Wn. App. at 497-98.

       Not all eight of the Kent factors must be proved in order to justify

declination. However, the juvenile court’s failure to give appropriate

consideration to the Kent factors constitutes an abuse of discretion. M.A., 106

Wn. App. at 498. “This court examines the entire record, including the court’s

oral opinion, to determine the sufficiency of the court’s reasons for declination.”

Statev. H.O., 119 Wn.App. 549,556,81 P.3d 883 (2003).

       Quijas asserts that the juvenile court erred by concluding that the State

had proved that transfer to adult court would be in the best interest of Quijas or


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No. 78591-5-1/7

the public. He contends that the court “relied on the seriousness of the offense,

by itself, to decline” jurisdiction. The record, however, establishes that the

juvenile court gave appropriate consideration to each of the Kent factors.

Moreover, the record amply supports the trial court’s findings.

       Quijas’s argument is premised on the court’s finding that

       the State has proven by a preponderance of the evidence that
       declination would be in the best interests of the public. The Court
       also finds that the Kent factor #1 is sufficient, by itself, to justify
       declination to adult status.

       The court’s analysis of Kent factor 1, the seriousness of the offense,

considered both the nature of the charged offense—murder in the second

degree—and the circumstances unique to Quijas’s alleged actions. There was

evidence Quijas sought out a firearm, desired to hunt “chaps” and, when

presented with the opportunity, fired six bullets (five of which were recovered

from Estrada’s body) in a residential neighborhood. The court found that

“heightened protection from this type of activity in our community” was

necessary. However, although the court did state that the seriousness of the

offense would alone be sufficient to justify declination, it did not, in fact, base its

decision solely on this factor. Instead, the court analyzed each Kent factor

thoroughly.

       Quijas appears to argue that juvenile courts must place greater weight on

the final three Kent factors because they account for the circumstances of the

individual, something that he avers has assumed greater importance in the half

century since the Kent decision due to new research on child and adolescent

psychology. In fact, the juvenile court found that each of these factors weighed


                                           7
No. 78591-5-1/8

in favor of declining jurisdiction. Considering the sixth Kent factor, the court found

that Quijas, from age 12,

       has shown a sophisticated gang affiliation and unhealthy attitude
       towards police officers. He has been aggressive towards law
       enforcement, given false identities, and gave credit to someone
       who shot a local police officer.  . He’s solicited drugs to sell, is
                                             .   .


       addicted to marijuana, and spoke of killing rival gang members. He
       has not been scared to miss school, do poorly in school, lie to
       police or violate probation and court conditions. He has not shown
       to be empathetic or remorseful for his actions or gang lifestyle.
       Respondent is street smart and gang smart.

       In reaching its decision, the court did consider the body of scientific

evidence regarding juvenile brain development and the effect of incomplete brain

development on culpability. Nonetheless, it found that the evidence of Quijas’s

relative sophistication and maturity weighed in favor of declination.

       As to the seventh Kent factor, the court considered Quijas’s history in the

juvenile justice system. This included convictions for gang-related malicious

mischief in the second degree and theft in the third degree, violations of

probation conditions incurred in connection with these convictions, and contacts

with law enforcement that included truancy, trespass, drug use, assault, and lying

to police. All of this, the court held, weighed in favor of declining jurisdiction.

       As to the eighth factor, the court carefully considered the testimony of

defense expert Dr. Ronald Roesch. Dr. Roesch did not opine on Quijas’s relative

level of risk to reoffend upon release from a juvenile rehabilitation administration

(JRA) facility or from adult prison, but the court took note of his statement that

Quijas “is amenable to treatment, has done well in detention pending this

proceeding, wants to leave the gang, and has family support.”



                                                 8
No. 78591-5-1/9

       The court also noted that ‘the policy of the [JRA] is to release as early as

possible,” that Quijas could be released into the community after serving only a

portion of a standard-range sentence, and that he could be transferred to a

“supervised, but.   .   .   not locked down” community facility. The court contrasted

this with the options that would be available were Quijas declined to adult

jurisdiction, including the Youthful Offender Program, which would allow Quijas to

serve his sentence in a JRA facility until at least age 18 (and possibly age 21). In

addition, he would “have opportunities of treatment, vocational programs,

transition back into society assistance and DCC community custody for up to 36

months.” The court determined that, while declination carried its own attendant

set of risks, the uncertainty of a sentence available at a JRA facility and of the

relative likelihood of recidivism, weighed in favor of declining jurisdiction.

       As to Kent factors 2, 3, and 4—respectively, whether the commission of

the offense was aggressive, violent, premeditated or willful, whether the crime

was against a person as opposed to property, and whether the case had

prosecutive merit—the court found each to weigh in favor of decline, Its analysis

of factor 2 was colored by evidence of Quijas’s anger at a rival gang member

dating his sister, of his aggression in the encounter that led to Estrada’s death,

and of his shooting Estrada multiple times in the back while yelling “die, buster

bitch.” The offense was indeed committed against a person, resulting in the

person’s death. The court found that the prosecutive merit of the case was

bolstered by Quijas’s social media presence, through which he “wrote of




                                              9
No. 78591-5-1110

obtaining a gun and that ‘it was his turn             .    .   .   to start smoking chaps.   .   .   just

pushing a button     .   .   .   that’s all that is” and told his sister to “pray for Estrada.”3

        Not all eight of the Kent factors must be established in order to justify

declination. M.A., 106 Wn. App. at 498. Thus, it is not beyond the realm of

possibility or legality that a court, after duly considering each factor, could find a

single factor sufficient on its own to justify a decline. However, the record herein

reflects that the juvenile court considered all of the Kent factors as required,

M.A., 106 Wn. App. at 498, and that substantial evidence supports the court’s

findings. Ware, 111 Wn. App. at 742. Because the juvenile court’s decision was

not based on manifestly unreasonable grounds, M.A., 106 Wn. App. at 498, the

court did not abuse its discretion in this regard. Quijas’s assertion to the contrary

is unavailing.

                                                     Ill

                                                     A

        The next issue is whether the juvenile court was required to rule on

Quijas’s claim that the declination process was tainted by racial prejudice. It

was.

        This omission does not pertain to any of the Kent considerations. Rather,

Quijas assigns error to the court’s omission of any ruling or discussion of his

evidence concerning the effect of racial bias in juvenile court decline




        ~ The court found that the fifth Kent factor—judicial efficiency when the juvenile’s
associate in the offense is an adult—did not apply, as Gracidas, 17 years old at the time of the
shooting, had already been sentenced as an adult.

                                                     10
No. 78591-5-I/Il

determinations, both in Skagit County and statewide. This omission, he avers,

left unanswered his claim that racial bias influenced this proceeding.

       In his briefing before the juvenile court, Quijas alleged that

       in Washington State, and locally in Skagit County, Hispanic youth
       are being declined and tried in adult court at a rate disproportionate
       to their percentage of the population. This should be a concern to
       the court, as it raises both equal protection and due process
       concerns. As we know that declining a youth increases their
       chances of recidivism, by declining Hispanic youth we are
       contributing to the further racial disparity seen in the adult prison
       population.

(Emphasis added.)

       Article I, section 12 of our state constitution provides: “No law shall be

passed granting to any citizen, class of citizens, or corporation other than

municipal, privileges or immunities which upon the same terms shall not equally

belong to all citizens, or corporations.” The Fourteenth Amendment to the

federal constitution provides: “No State shall   .   .   .   deny.   .   .   any person within its

jurisdiction the equal protection of the laws.” U.S. CONST. AMEND. XIV,                   § 1.   Our

Supreme Court has held that the equal protection clause of article I, section 12

and that of the Fourteenth Amendment are substantially identical and subject to

the same analysis. State v. Shawn P., 122 Wn.2d 553, 559-60, 859 P.2d 1220

(1993); see also State v. Dhaliwal, 150 Wn.2d 559, 581-83, 79 P.3d 432 (2003)

(Chambers, J., concurring) (racial bias antithetical to a fair and impartial

proceeding and violates federal due process and equal protection rights).

       “[lit is essential that once a claim of racial bias is raised, investigations into

allegations of racial bias are conducted on the record and with the oversight of

the court.” State v. Berhe, 193 Wn.2d 647, 661, 444 P.3d 1172 (2019). In the


                                           11
No. 78591-5-1/12

context of jury trials, the Supreme Court has made clear that an allegation of

explicit or implicit bias at any stage of a proceeding impugns a defendant’s Sixth

Amendment right to an impartial jury.

           Thus, in State v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011), the

Supreme Court held that a defendant’s right to an impartial jury was fatally

undermined by appeals to racial bias. Therein, a prosecutor attempted to

discredit African-American witnesses in a murder trial by repeatedly adopting an

exaggerated pronunciation of “‘police” as “‘po-leese” and intimating, or outright

stating, that these witnesses followed a “code” that dictated “black folk don’t

testify against black folk.” Monday, 171 Wn.2d at 678-79. The court held that

this was prosecutorial misconduct incapable of remedy by a curative instruction,

stating:

              In this case, we cannot say beyond a reasonable doubt that
       the error did not contribute to the verdicts. The prosecutor’s
       misconduct tainted nearly every lay witness’s testimony. It planted
       the seed in the jury’s mind that most of the witnesses were, at best,
       shading the truth to benefit the defendant.

Monday, 171 Wn.2d at 681.
       “The fact of racial and ethnic disproportionality in our criminal justice

system is indisputable.” TASK FORCE ON RACE & CRIMINAL JUSTICE Sys.,

PRELIMINARY REPORT ON RACE AND WASHINGTON’S CRIMINAL JUSTICE SYSTEM 1

(2011) [https://perma.cc/GP5C-VQ85]. Our Supreme Court has made clear that

trial courts must be vigilant in addressing the threat of explicit or implicit racial

bias that affects a defendant’s right to a fair trial. We hold that equal vigilance is

required when racial bias is alleged to undermine a criminal defendant’s



                                           12
 No. 78591-5-1113


 constitutional rights at any stage of a proceeding. When confronted by such a

claim, supported by some evidence in the record, the trial court must rule. It

cannot ignore the evidence or the claim. And we cannot affirm the result of a

proceeding in which such a necessary ruling is absent.4

                                                  B

         The juvenile court did not rule on Quijas’s claim of racial bias. This

renders the declination decision defective. What is the proper remedy?

         This question is complicated by Quijas’s attainment, in the intervening

period since the decline hearing, of the age of majority. Such a situation

confronted the Supreme Court in Dillenburci v. Maxwell, 70 Wn.2d 331, 422 P.2d

783 (1967). The relevant facts of that case, and the rule set forth in its holding,

have been summarized as follows:

                 In Dillenbur.q, 70 Wn.2d at 333, the petitioner filed for a writ
         of habeas corpus in superior court, arguing he was improperly tried
         in adult court. This court initially concluded that the petitioner had
         been improperly transferred to adult court and reversed for a new
        trial. ki. at 345-46. However, upon reconsideration, the court
        concluded that where the petitioner has demonstrated that a
        transfer from juvenile court was faulty, the proper remedy is a de
         novo hearing in superior court on whether declination of juvenile
        jurisdiction would have been appropriate.         at 355. If declination
        would have been appropriate, then the conviction stands. ki.
        Otherwise, the conviction is set aside and a new trial must occur in

          ~ The State postulates that the juvenile court presumably considered” Quijas’s argument
regarding racial bias and evidence of disproportionality but concluded that the evidence was
insufficient to merit any consideration on the record. However, with no reference whatsoever to
this issue or the evidence in the trial court’s findings and conclusions, we lack any indication that
the juvenile court adopted any position on the question. Indeed, in arguing otherwise, the State
substitutes its own evaluation of the evidence for the nonexistent findings of the trial court. “This
court is not in a position to speculate about what might have happened” at the trial court level.
Statev. Dye, 178 Wn.2d 541, 556, 309 P.3d 1192 (2013). When an allegation of racial bias—
either implicit or explicit—is both made and supported by some evidence, the trial court must rule.
This court did not.



                                                 13
No. 78591-5-1/14

        adult criminal court if the defendant has since turned 18. Id. at 356.
        Subsequently, Washington courts have consistently applied this
        remedy when lack of adult criminal jurisdiction is successfully
        argued on appeal. See [State v. lMendoza-Lopez, 105 Wn. App.
        [382,] 390[, 19 P.3d 1123 (2001)]; [State v. lAnderson, 83 Wn. App.
        [515,] 522[, 922 P.2d 163 (1996)].

In re Pers. Restraint of Dalluqe, 152 Wn.2d 772, 785-86, 100 P.3d 279 (2004)

(footnote omitted). Our Supreme Court applied that very remedy in Dalluqe, 152

Wn.2d at 786-87.

       Thus, when a juvenile is convicted and sentenced as an adult but, after

attaining the age of majority, demonstrates that an order of decline was entered

improperly, the Dillenburg remedy applies. DalluQe, 152 Wn.2d at 786-87.

Quijas has shown that the transfer of his case to adult court was done improperly

because his claim of racial bias was never addressed by the juvenile court.

Thus, we remand the matter to superior court for further proceedings consistent

with this opinion.

       Reversed in part and remanded.


                                              --~,




WE CONCUR:



                                              4Wa4in     ,vc~—~




                                         14
