Metropolitan News-Enterprise


Monday, August 13, 2001


Page 1


Appeals Court Rejects Indictments Charging Minors in Adult Court


By ROBERT GREENE, Staff Writer


Juveniles charged with murder and other serious crimes may not be charged by indictment, but only by information following a preliminary hearing, this district’s court of appeal ruled yesterday.

Proposition 21 threw open the door to prosecutions of more juveniles age 14 and over under the adult justice system, but did not allow the initial charging decision to be made by a grand jury, Justice Robert Mallano wrote for Div. One.

The ruling invalidates the murder indictments of  three Glendale teenagers of Armenian descent accused of killing a Latino Glendale High School youth a year ago in an ethnic gang confrontation. Authorities say the slain youth was not a gang member, but died when he tried to break up a fight.

Drafters of the controversial ballot measure specified that minors accused of certain crimes be “prosecuted under the general law in a court of criminal jurisdiction” and required as well that the accusatory pleading be filed by the “prosecuting officer.”

The language was widely seen by proponents and critics during the campaign for the March 2000 initiative as providing new authority for prosecutors, rather than judges, to make the decision of whether to select juvenile or general criminal court. But Mallano said the choice of the words “prosecuting officer” also indicated that the grand jury could not initiate the process.

“An indictment is an ‘accusatory pleading…’, but it is the foreperson of the grand jury, not the district attorney, who presents it to be filed,” Mallano said. “Nor is there any precedent for designating the foreperson of the grand jury a ‘prosecuting officer.’”

The ruling serves to put judges back into the equation, although it does not restore their prior absolute power to determine when a youth could be tried in adult court, subject to the full impact of adult penalties, or in juvenile court, with penalties that lapse once the most serious offenders reach their mid-20s.

The state Supreme Court is currently reviewing a Fourth District Court of Appeal decision from February that struck down the key provision of Proposition 21. The appeals court said it was an unconstitutional breach of separation-of-powers principles to give prosecutors the inherently judicial power to decide whether youths should be sent to juvenile court or tried in adult criminal courts. The court said choice of the court was less a prosecutorial charging decision and more a judicial choice of sentencing scheme.

Just two weeks after the Fourth District decision, this district’s Court of Appeal agreed to hear arguments that defendants Rafael Gevorgyan and Anait Msryan were improperly charged in grand jury indictments. The indictment was not affected as to co-defendant Karen Terteryan, who was accused of personally committing the offense.

Prosecutors initially charged all three with first-degree murder but dropped their charges after obtaining the indictments. Superior Court Judge Larry Fidler ruled that minors could not be indicted.

Preliminary hearings are conducted in open court, with the counsel present for the defendant, and proceed under the watchful eye of a Superior Court judge. Grand juries, although traditionally perceived as acting only at the behest of the prosecutor assigned to “assist,” are officially independent bodies and conduct their investigations behind closed doors, without defense counsel present and without a judicial officer.

Mallano did not focus on the role of the judge in presiding over the charging decision, but instead emphasized the wording of Penal Code Sec. 602(b), requiring that certain minors be “prosecuted under the general law in a court of criminal jurisdiction,” and Sec. 707, which states that for minors not charged under Sec. 602 “the district attorney or other appropriate prosecuting officer may file an accusatory pleading.”

Under Sec. 602(b), which affected Terteryan, mandatory direct filing applies only when the prosecutor alleges that the suspect personally committed the offense, Mallano said. Despite the close relationship between the prosecutor and the grand jury, he stressed, the grand jury’s indictment is not the prosecutor’s allegation.

Sec. 707, affecting the other two defendants, specifically references the district attorney or other prosecuting officer—again, Mallano said, leaving out the grand jury.

The justice rejected prosecutors assertion that the 1991 case of People v. Aguirre establishes that juveniles may be indicted. Aguirre stands only for the proposition that the statute of limitations for an accused juvenile runs from the time of the indictment, he said.

The case is People v. Superior Court, Gevorgyan, RPI, B147799.


Copyright 2001, Metropolitan News Company