Delinquency Case Law

People v. Superior Court of Los Angeles County, Rafael Gevorgyan (real party); Karen Terteryan v. Superior Court of Los Angeles County (2001) 91 Cal.App.4th 602 [110 Cal.Rptr.2d 668]. Court of Appeal, Second District, Division 1.

Three children were charged under Welfare and Institutions Code sections 602(b) and 707(d) by grand jury indictment. The indictment alleged that the three defendants, over age 14, committed murder to further the activities of a street gang, committed attempted murder, and engaged in street terrorism.

Terteryan demurred the indictment, alleging that only the prosecutor, under section 602(b)(1), can allege that a child personally killed a victim. The demurrer was overruled, and Terteryan appealed. Gevorgyan and the third defendant demurred the indictment, arguing that section 707(d)(1) requires the district attorney or another prosecuting officer to file the accusatory pleading. The trial court declined to sustain the demurrer but held that, under People v. Aguirre (1991) 227 Cal.App.3d 373, the defendants must be afforded a postindictment preliminary hearing. The People challenged the trial court's decision and petitioned for a writ of mandate. The two petitions were considered concurrently.

The Court of Appeal ordered the trial court to vacate its prior orders. The appellate court interpreted sections 602 and 707 as amended by Proposition 21 and in light of the Aguirre decision. With respect to murder, the prosecutor must allege that the child personally killed the victim under special circumstances. (Welf. & Inst. Code, § 602(b)(1).) An indictment does not contain the allegations of the prosecutor but rather those of the grand jury. Therefore, grand jury indictment cannot trigger direct mandatory filing under section 602(b). Section 707(d)(1) and (2) provides that for children not charged under section 602(b), the district attorney or another appropriate prosecuting officer may file an accusatory pleading. The appellate court stated that an indictment is an accusatory pleading, but it is the foreperson of the grand jury and not the district attorney who presents it to be filed. There is no precedent for designating the foreperson of a grand jury as a "prosecuting officer." Also, under Proposition 21, section 707.1 does not include the foreperson of a grand jury. The appellate court found that under section 707(d)(4) ("when the district attorney or other prosecuting officer has filed an accusatory pleading . . . in conjunction with the preliminary hearing, the magistrate must make a finding of reasonable cause that the child comes within the provision"), the drafters of Proposition 21 did not envision grand jury indictment to be part of the statutory scheme. The appellate court's interpretation of sections 602 and 707 did not support grand jury indictment.

The appellate court also found that postindictment preliminary hearings have been abolished and that Proposition 21 has undercut the rationale of Aguirre. The statute now provides that a child cannot be prosecuted in adult court without being granted a preliminary hearing. The appellate court sustained the demurrers of the three defendants. The trial court was instructed to vacate its orders (1) overruling the demurrers of the three defendants and (2) granting preliminary hearings to Gevorgyan and the third defendant. New orders must be entered sustaining the three demurrers on the ground that instant prosecution may not proceed by grand jury indictment.