People v. Superior Court

• Decision Date: 10 August 2001
• Docket Number: No. B147452.,No. B147799.,B147452.,B147799.
• Citation: 91 Cal.App.4th 602,110 Cal.Rptr.2d 668
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Rafael Gevorgyan et al., Real Parties in Interest. Karen Terteryan, Petitioner, v. The Superior Court of Los Angeles County, Respondent; The People, Real Party in Interest.

110 Cal.Rptr.2d 668

91 Cal.App.4th 602

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los

Angeles County, Respondent;

Rafael Gevorgyan et al., Real Parties in Interest.

Karen Terteryan, Petitioner, v. The Superior Court of Los Angeles County, Respondent;

The People, Real Party in Interest.

No. B147452.

No. B147799.

Court of Appeal, Second District, Division 1.

August 10, 2001.

Review Denied November 20, 2001.^*

Steve Cooley, District Attorney, George M. Palmer, Head Deputy District Attorney, and Matthew G. Monforton, Deputy District Attorney, for Petitioner and Real Party in Interest the People.

Geragos & Geragos and Mark J. Geragos, Los Angeles, for Petitioner Karen Terteryan.

No appearance for Respondent.

Andrew Reed Flier, for Real Party in Interest Rafael Gevorgyan.

Theodore S. Flier, Encino, for Real Party in Interest Anait Msryan.

MALLANO, J.

Traditionally, minors could be tried as adults only when a juvenile court found them unfit for that court's jurisdiction. But Proposition 21, the Gang Violence and Juvenile Crime Prevention Act, passed by the electorate on March 7, 2000, changed that. Now 14-through 17-year-olds accused of certain crimes are subject to mandatory direct filing in adult court (Welf. & Inst.Code, § 602, subd. (b)), and the prosecution has discretion to bring charges directly in adult court on other enumerated offenses without the necessity of a finding of unfitness (id., § 707, subd. (d)). The three minor defendants in this case were charged under Welfare and Institutions Code sections 602, subdivision (b), and 707, subdivision (d), by grand jury indictment. We conclude that Proposition 21 requires that juveniles be prosecuted by way of information following a preliminary hearing and not by indictment by grand jury. Accordingly, we grant relief requiring that the indictment in this case be dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Karen Terteryan and real parties in interest Rafael Gevorgyan and Anait Msryan were named in a three-count indictment returned by the Grand Jury of Los Angeles County and filed in respondent superior court on August 14, 2000. (The indictment was returned after a criminal complaint containing similar charges against defendants was dismissed.) The indictment, which arose from an incident that occurred on May 5, 2000, was later amended. As amended, the indictment alleges that defendants, all of whom are 14 years of age or older, committed (1) murder with the special circumstance that the murder was committed to further the activities of a street gang, (2) attempted murder, and (3) street terrorism. The indictment further alleges that Terteryan personally killed the murder victim. (Well & Inst Code, § 602, subd. (b)(1); unless otherwise specified, further section references are to the Welf. & Inst.Code.)¹ Gevorgyan and Msryan are alleged to have committed an offense that, if committed by an adult, would be punishable by death or life imprisonment (§ 707, subd. (d)(2), criterion (A)), and that was committed for the benefit of a criminal street gang (§ 707, subd. (d)(2), criterion (C)(ii)).²

Terteryan demurred to the indictment. He argued that indictment was precluded because section 602, subdivision (b)(1), requires that the prosecutor (rather than a grand jury) allege the existence of a special circumstance and that the minor personally killed the victim. The demurrer was overruled, and Terteryan petitioned for extraordinary relief. We issued an order to show cause and requested further briefing. (B147799.)

Gevorgyan and Msryan also demurred to the indictment. They argued that the indictment was precluded because section 707, subdivision (d)(1), requires that the district attorney or other prosecuting officer file the accusatory pleading. They also relied on a reference to a preliminary hearing in section 707, subdivision (d)(4).³ The trial court overruled their demurrer, but held that, under People v. Aguirre (1991) 227 Cal.App.3d 373, 277 Cal.Rptr. 771, the prosecution could not proceed unless defendants were afforded a preliminary hearing. The People petitioned for a writ of mandate, challenging the trial court's decision. We issued an order to show cause and requested further briefing. (B147452.)

We have ordered that the two petitions be considered concurrently to determine whether the instant prosecutions may proceed by indictment. We conclude that they may not. In so doing, we recognize that the People petitioned this court seeking to overturn the portion of the trial court's order granting a preliminary hearing to Gevorgyan and Msryan, and that Gevorgyan and Msryan did not file petitions on their own behalf asserting that they were not subject to indictment. Nevertheless, the issue of whether Gevorgyan and Msryan are subject to indictment was argued extensively in the trial court and is included in the parties' briefing to this court. In addition, whether Gevorgyan and Msryan are not subject to indictment is closely related to the issues raised by Terteryan. Therefore, we find it proper in this opinion to grant relief to Gevorgyan and Msryan as well as to Terteryan.

The petitions also raise other issues that were asserted in the trial court, including those pending before our Supreme Court in Manduley v. Superior Court (2001) 86 Cal.App.4th 1198, 104 Cal.Rptr.2d 140, review granted April 25, 2001, S095992, and the applicability of an amendment to section 602 that took effect on January 1, 2000 (Stats.1999, ch. 996, § 12.2). We do not reach those issues in this opinion.

DISCUSSION

I

California's Juvenile Court Law is set forth in division 2, chapter 2 of the Welfare and Institutions Code. (§ 202 et seq.) Nowhere in the text of this law, both before and after the adoption of Proposition 21, do the words "grand jury" or "indictment" appear. Nor are they included in the summary, argument, or analysis of Proposition 21 that was submitted to the voters. Yet, the People assert that under People v. Aguirre, supra, 227 Cal.App.3d at page 380, 277 Cal.Rptr. 771, People v. Aikens (1969) 70 Cal.2d 369, 372-373, 74 Cal.Rptr. 882, 450 P.2d 258, and In re Hartman (1949) 93 Cal.App.2d 801, 802-803, 210 P.2d 53, "[a] grand jury's authority to indict juveniles is unquestioned. [Citations.]" The assertion is an overstatement that begs the question raised in this case.

The Aikens and Hartman opinions recite by way of background that the defendants in those cases were originally indicted by grand jury, then certified to juvenile court because they were minors, and finally prosecuted as adults when the juvenile courts declined jurisdiction. Because the appropriateness of the grand jury indictment is not mentioned in either case, they are not authority on this point. (See People v. Hill (1974) 12 Cal.3d 731, 766, fn. 34, 117 Cal.Rptr. 393, 528 P.2d 1, overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal. Rptr. 786, 558 P.2d 872.) Consequently, Aguirre is the only California appellate decision to date that discusses the propriety and consequences of initiating the prosecution of a minor by indictment and is the foundation of the People's argument that they may proceed by indictment against defendants in this case.

In Aguirre, the defendant committed multiple felonies, including sex crimes, during a nighttime assault on a young couple on the beach in 1981. The offenses were subject to a six-year statute of limitations, and an indictment charging the defendant with those crimes was returned in 1985. When the defendant was later arrested and appeared in superior court, it was discovered that he was 16 years old at the time of the crimes. Criminal proceedings were suspended and the matter was certified to juvenile court, where the defendant appeared in 1988. The juvenile court found the defendant unfit and returned him to superior court. There, he was arraigned and given a preliminary hearing. After the defendant was held to answer, the People filed an information that was identical to the 1985 indictment. The defendant pleaded guilty to the charges in the information. (227 Cal. App.3d at pp. 376-378, 277 Cal.Rptr. 771.)

By the time the defendant in Aguirre had been brought before the juvenile court, more than six years had elapsed since the commission of his offenses. On appeal, the defendant raised the statute of limitations, contending that "(1) the juvenile court has exclusive initial jurisdiction over persons under 18 years of age who commit acts in violation of criminal laws; (2) an order of the juvenile court adjudging such a minor to be a ward of juvenile court is not deemed a conviction of a crime for any purpose; (3) a grand jury may only inquire into and indict for the commission of `public offenses' and, therefore, (4) a grand jury has no jurisdiction to indict a person under the age of 18 until after that person has been the subject of a juvenile court petition and been found unfit to be handled under the juvenile court law." (227 Cal.App.3d at p. 378, 277 Cal. Rptr. 771.) Based on these arguments, the defendant urged that the prosecution against him did not commence with the 1985 grand jury indictment because it was a nullity, and any proceedings against him after the statute of limitations expired in 1987 (namely, both the juvenile petition and the superior court information) were therefore barred. (Ibid.)

The Court of Appeal rejected the defendant's position on the primary ground the defendant "cite[d] no case authority for his contention that the grand jury has no jurisdiction to indict a minor, and our own research has not found any cases in California or any other state which support that conclusion." (227 Cal.App.3d at p. 378, 277 Cal.Rptr. 771.) The court then reviewed the history of grand jury indictments and of juvenile court law. In so doing, it observed that notwithstanding section 203's rule that "`[a]n order adjudging a minor to be a ward of the juvenile court shall not be...