Filed 4/28/14; pub. order 5/1/14 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                               DIVISION THREE


THE PEOPLE,

    Plaintiff and Appellant,                              G048659

                  v.                                      (Super. Ct. No. 12ZF0158)

ISAIAS ARROYO,                                            OPINION

    Defendant and Respondent.



                  Appeal from an order of the Superior Court of Orange County, William R.
Froeberg, Judge. Reversed.
                  Tony Rackauckas, District Attorney, and Stephan Sauer, Deputy District
Attorney for Plaintiff and Appellant.
                  Frank Davis, Alternate Defender, and Antony C. Ufland, Deputy Alternate
Defender for Defendant and Respondent.


                                           *         *          *
              The Orange County Grand Jury issued an indictment that charged
defendant Isaias Arroyo and six other persons with conspiracy to commit murder (Pen.
Code, §§ 187 & 182) and active participation in a criminal street gang (Pen. Code,
§ 186.22, subd. (a)), plus alleged the defendants committed count 1 for the benefit of,
at the direction of, or in association with a criminal street gang (Pen. Code, § 186.22,
subd. (b)). The indictment included a finding defendant and two others “were fourteen
years old or over on the date of the violation and the conspiracy to commit murder
charge[] . . . falls within . . . Welfare and Institutions Code section 707[, subdivision]
(d)(2).” (Hereafter section 707(d); all further undesignated statutory references are to the
Welfare and Institutions Code.)
              Defendant initially pleaded not guilty to the charges and denied the
enhancement allegation. He then demurred to the indictment, arguing “[section] 707(d)
mandates that the prosecution proceed by way of [a] preliminary hearing and
[i]nformation” when filing criminal charges against a minor in adult court, and thus “the
grand jury . . . had no legal authority to inquire into the offenses charged as they relate to
[defendant] as he was a juvenile at the time . . . .”
              The court allowed defendant to withdraw his plea and sustained the
demurrer on its merits, concluding section 707(d)(4) “requires a magistrate’s
determination that [a] juvenile” qualifies for prosecution in adult criminal court and thus
the case could not proceed by way of an indictment. The People appeal from this ruling.
(Pen. Code, § 1238, subd. (a)(2) [prosecution may appeal from order sustaining
demurrer].) We agree the trial court erred in interpreting the statute and reverse.




                                               2
                                         DISCUSSION


1. Standard of Review
               A defendant may demur to an indictment on the ground the grand jury
issuing it “had no legal authority to inquire into the offense charged.” (Pen. Code,
§ 1004, subd. (1).) We liberally construe an accusatory pleading, giving it “‘a reasonable
interpretation and read[ing it] as a whole with its parts considered in their context.’”
(People v. Keating (1993) 21 Cal.App.4th 145, 150-151; see also People v. Biane (2013)
58 Cal.4th 381, 388.)
               Since “a demurrer lies only to challenge the sufficiency of the pleading”
(italics omitted) and “is limited to those defects appearing on the face of the accusatory
pleading, [it] raises only issues of law.” (People v. Biane, supra, 58 Cal.4th at p. 388.)
In addition, this case requires us to construe statutory language governing when a
juvenile may be prosecuted in an adult criminal court under the Gang Violence and
Juvenile Crime Prevention Act of 1998 (Proposition 21) approved by the electorate in
2000. Thus, “interpretation of [the Act] is subject to de novo review on appeal.” (Solano
v. Superior Court (2009) 169 Cal.App.4th 1361, 1366.)


2. Background
               Generally, “any person . . . under the age of 18 years when he or she
violates any law of this state . . . defining crime . . . is within the jurisdiction of the
juvenile court . . . .” (§ 602, subd. (a); Solano v. Superior Court, supra, 169
Cal.App.4th at p. 1367.) Before the enactment of Proposition 21, there were only a few
exceptions to this rule. The prosecution was required to file criminal cases in adult court
against a person 16 years old charged with certain enumerated crimes if the minor had
previously been declared a ward of the juvenile court for committing a felony when at



                                                3
least 14 years of age. (Stats. 1999, ch. 996, § 12.2; Manduley v. Superior Court (2002)
27 Cal.4th 537, 549.) While under certain limited circumstances a minor as young as 14
years of age could be prosecuted in adult criminal court, the prosecution could only
proceed against him or her after the juvenile court conducted a hearing and found the
minor unfit to be dealt with in juvenile court. (Stats. 1998, ch. 936, § 21.5; Manduley v.
Superior Court, supra, 27 Cal.4th at pp. 548-549.)
              Proposition 21 broadened the scope of circumstances where prosecutors
can file criminal charges against juveniles without the necessity of a prior fitness hearing
in the juvenile court and even requires the filing of some criminal actions in adult court.
Section 707(d)(1) and (2) now declare that, under certain circumstances, “the district
attorney or other appropriate prosecuting officer may file an accusatory pleading in a
court of criminal jurisdiction against any minor” who is either at least 16 years old and
charged with one of the crimes listed in subdivision (b) of the statute or at least 14 years
of age if one or more criteria are met. (Italics added.) And section 602, subdivision (b)
was amended to declare “[a]ny person who is . . . 14 years of age or older . . . shall be
prosecuted under the general law in a court of criminal jurisdiction” if he or she is
charged with first degree murder with special circumstances or certain sex crimes.
(Italics added.)
              Pertinent to this case, section 707(d)(2)(A) allows for a prosecution of a 14
year old in adult criminal court when “[t]he minor is alleged to have committed an
offense that if committed by an adult would be punishable by death or imprisonment in
the state prison for life.” Count 1 of the indictment charges defendant with conspiracy to
commit murder. Under Penal Code section 182, “in the case of conspiracy to commit
murder, . . . the punishment shall be that prescribed for murder in the first degree.” (Pen.
Code, § 182, subd. (a) 2d unnumbered par.) First degree murder is punishable “by death,
imprisonment in the state prison for life without the possibility of parole, or



                                              4
imprisonment in the state prison for a term of 25 years to life.” (Pen. Code, § 190, subd.
(a).) Here, the indictment contains an express finding defendant fell within the terms of
section 707(d)(2).


3. The Prosecution of a Minor by Indictment
              Relying on the second sentence of section 707(d)(4), defendant argues an
adult criminal prosecution against a minor cannot be commenced by a grand jury
indictment. He claims that sentence means “‘when’ the prosecution files [criminal
charges against] a minor in [a] criminal court, it must be ‘in conjunction with the
preliminary hearing,’ and that ‘a magistrate’ ‘shall’ make a finding” the juvenile falls
within section 707(d)’s criteria. Consequently, defendant asserts the prosecution could
not charge him with a gang-related conspiracy to commit murder by grand jury
indictment. We find this strained construction of section 707(d)(4) unsupportable.
              “In interpreting a statute enacted by means of a voter initiative, ‘“‘we turn
first to the language of the statute, giving the words their ordinary meaning.’”’
[Citation.] Statutory language must be ‘“construed in the context of the statute as a
whole and the overall statutory scheme [in light of the electorate’s intent].”’” (Solano v.
Superior Court, supra, 169 Cal.App.4th at pp. 1366-1367.)
              With certain exceptions not relevant here, “public offenses must be
prosecuted by indictment or information.” (Pen. Code, § 682; see also Cal. Const., art.
I, § 14.) Cases have recognized the historical authority of grand juries to issue
indictments even against a minor. (Guillory v. Superior Court (2003) 31 Cal.4th 168,
173; People v. Aguirre (1991) 227 Cal.App.3d 373, 378.)
              Section 707(d)(4) declares: “In any case in which the district attorney or
other appropriate prosecuting officer has filed an accusatory pleading against a minor in a
court of criminal jurisdiction pursuant to this subdivision, the case shall then proceed



                                             5
according to the laws applicable to a criminal case. In conjunction with the preliminary
hearing as provided in Section 738 of the Penal Code, the magistrate shall make a finding
that reasonable cause exists to believe that the minor comes within this subdivision. If
reasonable cause is not established, the criminal court shall transfer the case to the
juvenile court having jurisdiction over the matter.”
                 The subdivision’s first sentence states that when a “district attorney or other
appropriate prosecuting officer has filed an accusatory pleading against a minor in a
court of criminal jurisdiction pursuant to this subdivision, the case shall then proceed
according to the laws applicable to a criminal case.” (Italics added.) Subdivision (d)(1)
and (2) of section 707 also refer to filing “an accusatory pleading” (italics added) in
enumerating the circumstances when a minor can be charged in adult criminal court. The
Penal Code defines the phrase “‘accusatory pleading’” as “an indictment, an information,
an accusation, and a complaint.” (Pen. Code, § 691, subd. (c); see also Pen. Code,
§ 949.) The last clause of the first sentence also requires the case to “proceed according
to the laws applicable to a criminal case.” (§ 707(d)(4).) In another context we held in
Solano v. Superior Court, supra, 169 Cal.App.4th 1361, the first sentence of section
707(d)(4) “strongly supports the . . . argument that minors should be treated the same as
adults insofar as their cases should proceed according to the laws applicable in criminal
cases.” (Id. at p. 1369.) Thus, the language of section 707(d)(4) can be interpreted to
allow criminal prosecution of a minor by indictment under the criteria of subdivision
(d)(1) or (2).
                 Defendant focuses his argument on the references to the finding required by
a magistrate at a preliminary hearing conducted under Penal Code section 738 [requiring
“a preliminary examination of the case against the defendant and an order holding him to
answer” “[b]efore an information is filed”] appearing in the second and third sentences of
section 707(d)(4). But neither sentence expressly bars commencing a criminal action



                                                6
against a minor by indictment. Nor do they mandate that such a prosecution proceed
solely by way of an information after a preliminary hearing. Further, contrary to
defendant’s assertion these sentences do not create the “right to a preliminary hearing,”
but merely require that a magistrate who conducts a preliminary hearing on a complaint
filed against a juvenile under section 707(d)(4) “make a finding that reasonable cause
exists to believe that the minor comes within this subdivision.”
              Guillory v. Superior Court, supra, 31 Cal.4th 168 rejected an analogous
argument in holding prosecutors could proceed by an indictment when required to charge
a juvenile in adult criminal court under section 602, subdivision (b). Recognizing
Proposition 21 addressed “‘the problem of violent crime committed by juveniles and
gangs’ in part by making ‘certain minors more accountable for serious crimes’” and that
it “‘expand[ed] . . . the authority of courts of criminal jurisdiction over juveniles,
including the authority of grand juries over juveniles’” (id. at pp. 176-177), Guillory
concluded “[i]t therefore seems unlikely such a limitation on the grand jury’s historic
authority to indict minors . . . would go unmentioned” (id. at p. 176).
              In Guillory, the Supreme Court cited with approval this court’s earlier
opinion in People v. Aguirre, supra, 227 Cal.App.3d 373, a pre-Proposition 21 case that
rejected a claim the commencement of a criminal prosecution against a minor by
indictment was a nullity. (Guillory v. Superior Court, supra, 31 Cal.4th at p. 173.) There
the defendant participated in assaulting two persons in 1981. The grand jury timely
issued an indictment charging the defendant and his accomplices with several crimes.
But the defendant fled and was not arrested until 1987. At his arraignment, it was
discovered he was only 16 years old when the crimes occurred. The matter was
remanded to the juvenile court where, after the defendant was found unfit to be dealt with
in that tribunal, the case was returned to adult court. Under the then-applicable case law,
the case proceeded by way of a preliminary hearing and the filing of an information. On



                                               7
appeal, the defendant argued his prosecution was untimely because the initial indictment
was a nullity and the subsequent proceedings did not commence until after the six-year
statute of limitation had expired. Aguirre rejected this argument, stating, “no cases limit
the authority of the grand jury to indict persons of any age, providing the offense has
been committed or is triable within the county.” (People v. Aguirre, supra, 227
Cal.App.3d at p. 378.)
              Defendant cites People v. Superior Court (Gevorgyan) (2001) 91
Cal.App.4th 602 (disapproved in part in Guillory v. Superior Court, supra, 31 Cal.4th at
p. 178, fn. 5) to reach a different conclusion. Gevorgyan involved the indictment of three
juveniles, one subject to section 602, subdivision (b), and two others charged under
section 707(d). The Court of Appeal ordered the indictment dismissed as to all three
juveniles. It concluded that since the statutes referred to charges either “alleged by the
prosecutor” (§ 602, subd. (b)(1)) or filed by “the district attorney or other appropriate
prosecuting officer” (§ 707(d)(1), (2), & (4)) they impliedly barred commencement of a
criminal prosecution against an allegedly eligible juvenile by a grand jury indictment.
(People v. Superior Court (Gevorgyan), supra, 91 Cal.App.4th at pp. 611-615.)
              Discussing section 707(d) Gevorgyan stated: “The use of the words
‘district attorney or other appropriate prosecuting officer has filed’ indicates an intent to
proceed by way of a preliminary hearing, because such language is not consistent with a
grand jury proceeding. So, too, the reference to the preliminary hearing itself, which sets
forth the requirement that the magistrate shall make a finding of reasonable cause that the
minor falls within the scope of section 707[](d)(4). Given that our state Constitution now
forbids a defendant who is being prosecuted by indictment from being afforded a
preliminary hearing [citation], the reference to the duty of the magistrate strongly
suggests that the drafters of Proposition 21 did not envision grand jury indictment as
being a part of the new statutory scheme.” (People v. Superior Court (Gevorgyan),
supra, 91 Cal.App.4th at pp. 613-614.)

                                              8
              Guillory disapproved of Gevorgyan’s interpretation of section 602,
subdivision (b), rejecting the theory the statute’s reference to charges “alleged by a
prosecutor” meant a juvenile could be charged in adult criminal court only by an
information after a preliminary hearing. Guillory explained, “‘When the district attorney
chooses to proceed by indictment rather than by information, the indictment itself must
be “draw[n]” by the district attorney. [Citation.] . . . The prosecutor alleges the facts
contained in the indictment and is bound by rule 5-110 of the California Rules of
Professional Conduct, which prohibits prosecutors from “institut[ing] or caus[ing] to be
instituted criminal charges when the member knows or should know that the charges are
not supported by probable cause.” . . . Therefore, while the indictment may contain the
allegations of the grand jury, it also contains the allegations of the prosecutor, who drafts
the indictment and who is bound to exercise discretion to initiate the prosecution only
upon such charges that the prosecutor knows are supported by probable cause. [¶] ‘Not
only does the indictment contain the allegations of the prosecutor when first presented to
the grand jury, . . . it also effectively contains the prosecutor’s allegations when returned
by the grand jury and filed with the court. As noted above, the indictment is the first
pleading of the prosecution charging the defendant with a crime. The prosecutor does not
thereafter file a separate document containing the charging allegations against the
defendant.’” (Guillory v. Superior Court, supra, 31 Cal.4th at p. 174.)
              Gevorgyan’s parallel construction of section 707(d)(4) suffers from the
same defect as its now-disapproved interpretation of section 602, subdivision (b). In
analyzing both statutes, Gevorgyan arbitrarily focused on a few terms and failed to
“‘“construe[ that language] in the context of the statute as a whole and the overall
statutory scheme [in light of the electorate’s intent].”’” (Solano v. Superior Court, supra,
169 Cal.App.4th at p. 1367.) In addition, while acknowledging the California
Constitution bars a preliminary hearing where a criminal prosecution proceeds by



                                              9
indictment (Cal. Const., art. I, § 14.1), it failed to acknowledge the Constitution also
declares “[f]elonies shall be prosecuted as provided by law, either by indictment or, after
examination and commitment by a magistrate, by information” (Cal. Const., art. I, § 14).
Thus, we conclude Gevorgyan’s analysis of section 707(d)(4) is wrong and decline to
follow it.
              Defendant also argues his interpretation of this statute is supported by the
Supreme Court’s opinion in Manduley v. Superior Court, supra, 27 Cal.4th 537. This
argument lacks merit. Manduley concerned facial constitutional challenges to
Proposition 21. (Id. at p. 544-546.) In describing the changes made by Proposition 21,
Manduley noted, “Where the prosecutor files an accusatory pleading directly in a court of
criminal jurisdiction pursuant to section 707(d), at the preliminary hearing the magistrate
must determine whether ‘reasonable cause exists to believe that the minor comes within
the provisions of’ the statute . . . . If such reasonable cause is not established, the case
must be transferred to the juvenile court.” (Id. at p. 550.) But Manduley involved the
prosecution of several minors commenced by the filing of a felony complaint (id. at
p. 546) and the above-quoted language merely explained the procedure applicable to the
facts of the case. “It is well settled that language contained in a judicial opinion is ‘“to be
understood in the light of the facts and issue then before the court, and an opinion is not
authority for a proposition not therein considered.”’” (People v. Banks (1993) 6
Cal.4th 926, 945.) Manduley did not consider or discuss the issue of how an adult
criminal prosecution of a juvenile under Proposition 21 must be commenced.
              Finally, defendant seeks to uphold his strained construction of
section 707(d)(4) by relying on the legal urban myth that the commencement of a
criminal prosecution by an information after a preliminary hearing before a magistrate is
superior to one commenced by a grand jury indictment. In Bowens v. Superior Court
(1991) 1 Cal.4th 36, the Supreme Court upheld California Constitution, article
I, section 14.1 which bars postindictment preliminary hearings. In that opinion, the court

                                              10
discussed the “important goals” provided by “utilization of the grand jury indictment
process.” (Bowens v. Superior Court, supra, at p. 43, fn. 3.) As noted above, Guillory
found use of the grand jury procedure does not give a prosecutor any more of an
unfettered right to prosecute a defendant than a case commenced by felony complaint
followed by a preliminary hearing before a magistrate. (Guillory v. Superior Court,
supra, 31 Cal.4th at p. 174.) Guillory also explained, “‘the role [of] the grand jury’” is
that of “‘a judicial body’” which “‘is to “determine whether probable cause exists to
accuse a defendant of a particular crime.” [Citation.] In this capacity, the grand jury
serves as the functional equivalent of a magistrate who presides over a preliminary
examination on a felony complaint. “Like the magistrate, the grand jury must determine
whether sufficient evidence has been presented to support holding a defendant to answer
on a criminal complaint.” [Citation.] Thus, the grand jury serves as part of the charging
process in very much the same manner as does a magistrate in a prosecution initiated by
complaint.’” (Ibid.)
              If, as defendant urges, the prosecutor in this case failed to comply with his
statutory obligation to “inform the grand jury of [the] nature and existence” of
“exculpatory evidence” of which he “is aware” (Pen. Code, § 939.71, subd. (a)), upon
remand he may refile and proceed with his motion to dismiss the indictment. (See
Johnson v. Superior Court (1975) 15 Cal.3d 248, 253-255; McGill v. Superior Court
(2011) 195 Cal.App.4th 1454, 1463, 1515-1516; Berardi v. Superior Court (2007) 149
Cal.App.4th 476, 481.)
              We conclude the trial court erred in sustaining the demurrer to the
indictment.




                                             11
                                     DISPOSITION


              The order sustaining the demurrer to the indictment is reversed and the
matter remanded to the superior court for further proceedings not inconsistent with this
opinion.




                                                 RYLAARSDAM, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




                                            12
Filed 5/1/14              CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,

    Plaintiff and Appellant,                            G048659

                 v.                                     (Super. Ct. No. 12ZF0158)

ISAIAS ARROYO,                                          ORDER CERTIFYING OPINION
                                                        FOR PUBLICATION
    Defendant and Respondent.


                 Plaintiff and Appellant has requested that our opinion in this matter filed
April 28, 2014, be certified for publication. It appears that our opinion meets the
standards set forth in California Rules of Court, rule 8.1105(c). The request is
GRANTED. The opinion is ordered published in the Official Reports.




                                                    RYLAARSDAM, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.
