Original proceedings; petition for a writ of prohibition/mandate to challenge an order of the Superior Court of Orange County, M. Marc Kelly, Judge. Petition denied. (Super. Ct. No. 06CF3960).
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
A felony complaint was filed directly in the criminal court against petitioner Raul Hernandez Solano, a minor, pursuant to Welfare and Institutions Code section 707, subdivision (d)(2). Following a preliminary hearing, the magistrate did not hold petitioner to answer for any crime that would permit direct filing in the criminal court under that section. The district attorney then filed an information charging the same crimes alleged in the complaint to challenge the magistrate's probable cause findings. Petitioner moved to dismiss the information. (Pen. Code, § 995.) The criminal court denied the motion to dismiss, and petitioner filed a petition for a writ of mandate and/or prohibition.
In this case of first impression, we hold that under Welfare and Institutions Code section 707, subdivision (d)(4), the prosecuting attorney may file an information challenging a magistrate's finding of lack of reasonable cause on a complaint filed in the criminal court before any transfer of the case to the juvenile court. We therefore deny the petition.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On December 10, 2006, 15-year-old petitioner, Adriana Delmoro, Randy Garcia, and Jose Mendoza began an evening of gang-related vandalism, including tagging specific targets in Santa Ana. At approximately 1:00 a.m. on December 11, the group stopped in front of a house at the corner of 7th and Raitt Streets. D.C., who was inside the house, heard a car door slam. He looked through the front door window of the house and saw a silver- or metallic-colored Chevy Malibu with a female driver parked in front of the house. A passenger in the car was a male Hispanic, with a shaved head, whose upper torso stuck out of the backseat window. D.C. also saw another male standing in the driveway behind D.C.'s father's car.
D.C. turned on the porch light and opened the front door of the house. The male standing in the driveway moved toward the Chevy Malibu in the street; as he did, he turned around and pointed a handgun in D.C.'s direction. D.C. heard two gunshots and saw muzzle flashes. He then saw another male run from the other side of his house to the car in the street, and get in the driver's side rear seat. At field showups that evening, D.C. said petitioner resembled the person who ran from the side of his house after the shots were fired, and identified Garcia as the shooter, Delmoro as the driver, and Mendoza as the person he had seen in the backseat of the car.
Petitioner and his three co-defendants were soon stopped by the police. Mendoza made a statement after being advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436. He told the police officers that on December 10, Delmoro drove him to a liquor store where Mendoza purchased two cans of spray paint. Mendoza said he intended to go tagging for his gang. Later, Mendoza met with petitioner and Garcia, and Garcia called Delmoro to meet them. While waiting for Delmoro, Mendoza allowed petitioner and Garcia to handle a nine-millimeter Glock and a .45-caliber Glock he carried for "protection" while tagging. Mendoza stated either petitioner or Garcia had a .22-caliber handgun in his possession. When Delmoro arrived, the group discussed tagging different locations that night.
Delmoro drove the Chevy Malibu, and Garcia sat in the front passenger's seat; petitioner was sitting behind Delmoro, and Mendoza was sitting behind Garcia. Petitioner, Garcia, and Mendoza tagged "F-Troop" and Mendoza tagged his moniker at eight or nine locations. At the last location they tagged, a house at the corner of 7th and Raitt Streets, something went "wrong." According to Mendoza, after he tagged the sidewall of the house and returned to the car, either Garcia or petitioner fired two shots.
D.C.'s house had been spray painted with F-Troop gang graffiti. One of the cars in the driveway of the house had also been spray painted with F-Troop gang graffiti, and had a bullet hole in the trunk. A single bullet casing was found on the driveway; no bullet hole was found on the exterior of the house. The investigating officer testified that both the car and the house would have been in the line of fire for a person shooting from where D.C. had described.
A felony complaint charged petitioner with willful, premeditated and deliberate attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)); shooting at an inhabited dwelling (id., § 246); street terrorism (id., § 186.22, subd. (a)); conspiracy to commit vandalism (§§ 182, subd. (a)(1), 594, subds. (a) & (b)(1)); and possession of a firearm by a minor (id., § 12101, subd. (a)(1)). The counts of attempted murder, conspiracy, and possession of a firearm by a minor were alleged to have been committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of the gang. (Id., § 186.22, subd. (b).) The complaint stated it was filed directly in the criminal court pursuant to Welfare and Institutions Code section 707, subdivision (d)(1) and (2).
At the outset of a preliminary examination, the prosecutor moved for the magistrate to dismiss the attempted murder count; the motion was granted. At the end of the hearing, the magistrate held petitioner to answer for all remaining counts and enhancements, with one exception: The magistrate found there was not sufficient evidence that petitioner had shot at an inhabited dwelling (Pen. Code, § 246), ...