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THIRD DIVISION
February 28, 2001 

No. 1-99-0703

JUSTICE WOLFSON delivered the opinion of the court:

There are two issues to decide in this case. First, whether the new transferprovision of the Juvenile Court Act of 1987 applies to this case. See 705 ILCS405/5-805 (West Supp. 1999) (added by the Juvenile Justice Reform Provisions of1998 (Pub. Act 90-590, eff. January 1, 1999)). The trial court held they didnot. Second, whether the trial court erred when it denied the State's motion totransfer the minor respondent (M.C.) to the criminal division. We reverse andremand.

On August 13, 1998, the State filed a petition for adjudication of wardshipcharging M.C. was delinquent because he committed the offenses of aggravatedbattery with a firearm, aggravated discharge of a firearm, aggravated battery,possession of a controlled substance, and possession of cannabis. The petitionalleged M.C. shot a young man in the foot and a young woman in the stomach onAugust 12, 1998.

The State also filed a motion to transfer M.C. from the juvenile division tothe criminal division pursuant to section 5-4(3.3) of the Juvenile Court Act of1987 (the 1996 transfer provision) (705 ILCS 405/5-4(3.3) (West 1996)).

The 1996 transfer provision, section 5-4(3.3)(a), provided: If the State'sAttorney files a motion to prosecute a minor, 15 years of age or older, incriminal court, and the State's Attorney's wardship petition charges the minorwith, inter alia, aggravated discharge of a firearm or aggravatedbattery with a firearm,

"and, if the juvenile judge designated to hear and determine motions to transfer a case for prosecution in the criminal court determines that there is probable cause to believe that the allegations in the petition and motion are true, there is a rebuttable presumption that the minor is not a fit and proper subject to be dealt with under the Juvenile Court Act of 1987, and that, except as provided in paragraph (b), the case should be transferred to the criminal court." 705 ILCS 405/5-4(3.3)(a) (West 1996).

Paragraph (b) provides:

"The judge shall enter an order permitting prosecution under the criminal laws of Illinois unless the judge makes a finding based on evidence that the minor would be amenable to the care, treatment, and training programs available through the facilities of the juvenile court based on an evaluation of the following:

(i) The circumstances and gravity of the offense alleged to have been committed by the minor.

                                       (ii) The age of the minor.

(iii) The degree of criminal sophistication exhibited by the minor.

(iv) Whether there is a reasonable likelihood that the minor can be rehabilitated before the expiration of the juvenile court's jurisdiction.

                                       (v) The minor's previous history of delinquency.

(vi) Whether the offense was committed in an aggressive, premeditated or calculated manner.

(vii) Whether there are sufficient facilities available to the juvenile court for the treatment and rehabilitation of the minor." 705 ILCS 405/5-4(3.3)(b) (West 1996).

On January 25, 1999, the trial court held a hearing on the prosecution'stransfer motion. Dr. Golden Shultz, a psychologist at the department of forensicservices, testified for M.C. Probation officer Tanya Kira testified for theprosecution.

At the conclusion of the hearing, the trial court found the State had met itsburden of providing sufficient evidence to support the charges against M.C. Thecourt entered a finding of probable cause and found "there is a rebuttablepresumption that the minor is not a fit and proper subject for adjudication inJuvenile Court." The court proceeded to analyze M.C.'s case under thesection 5-4(3.3)(b) factors.

1. Circumstances and gravity of the offense

The court found M.C.'s alleged conduct "certainly is a graveoffense." But, the court added, "neither one of these people [thevictims] were seriously injured." The court noted the young man was shot inthe foot, and the young woman was not shot since the bullet passed through herclothing.

2. Age of minor

The court found M.C.'s age at the time of his alleged offense, 16 years and11 months, was obviously "on the high scale of the juvenile agebracket." But, the court observed, "timing is everything in life. Thefact that he wasn't (17) when this occurred is something I can consider."The court summarized: "[w]hile I could look at it as a mark against himthat he was almost (17) when he's charged with this offense, I can also look atit that he wasn't (17); and he was meant to be charged as a juvenile and that'sthe way I choose to look at it today based on the totality of the evidence***."

3. Degree of criminal sophistication

The court candidly acknowledged, "I'm not quite sure what that termmeans, *** and I'm not sure how that differentiates significantly from No.(Five), which is the previous history of the minor ***." The court foundM.C. had a criminal record, including delinquency adjudications for stolen carpossession and drug possession, as well as four station adjustments.

4. Reasonable likelihood of rehabilitation before age 21

The court found M.C. had responded favorably to the structure and theservices of the juvenile home since his detention. The court also found M.C.successfully completed probation after his conviction for stolen car possession.The court added M.C.'s parents "[were] extremely interested in his wellbeing; have stuck by him in spite of the fact that he has caused so much agonyup to this point in time."

5. Previous history of delinquency

The court did not discuss this factor independent of M.C.'s "criminalsophistication."

6. Aggressive, premeditated, or calculated offense

The court found M.C.'s alleged conduct was aggressive and said, "itappears to be premeditated or it's just more of a gang drive-by, stupidincident. I'm not sure how it came about *** so premeditation is just a littlehard to assess ***."

                                       7. Sufficient treatment and rehabilitation facilities

The court found "there are juvenile facilities available in order totreat him