ORIGINAL PROCEEDINGS in Mandate. Robert J. Totten, Commissioner. Petition Granted. (Los Angeles County Super. Ct. No. FJ49907)
The opinion of the court was delivered by: Perluss, P. J.
CERTIFIED FOR PUBLICATION
Sixteen-year-old Juan G. was named in two wardship petitions filed in juvenile court alleging he had committed attempted murder and violated a criminal street gang injunction. After the People filed a criminal complaint directly in superior court charging Juan with murder in an unrelated incident, the pending juvenile court petitions were transferred to adult criminal court without a fitness hearing. The juvenile court reasoned the district attorney's discretionary direct filing of the murder complaint constituted a finding of unfitness within the meaning of the governing transfer statute, Welfare and Institutions Code section 707.01, subdivision (a)(3)(A),*fn1 and no formal fitness hearing or additional finding of Juan's unfitness was required to transfer the pending wardship petitions.
We agree with Juan a judicial finding of unfitness following a hearing was required before the wardship petitions could be transferred to adult court. The juvenile court's contrary conclusion failed to consider the express language of section 606, which, in the circumstances presented here, prohibits a criminal prosecution based on the facts underlying a wardship petition absent a finding of unfitness by the juvenile court. In addition, the court's broad construction of the language in the transfer statute ignored the incremental development of the relevant juvenile law and violated fundamental principles of statutory interpretation disfavoring the implied repeal of existing law. Accordingly, we grant Juan's petition for a writ of mandate and direct respondent Los Angeles Superior Court to vacate its order deeming him unfit for juvenile court treatment and thereafter to conduct a formal fitness hearing pursuant to section 707.
FACTUAL AND PROCEDURAL BACKGROUND
On January 13, 2012 the People filed a wardship petition under section 602 alleging Juan had committed the crime of attempted murder (Pen. Code, §§ 187, 664) on January 8, 2012 and further alleging Juan had personally inflicted great bodily injury on the victim and the crime had been committed to benefit a criminal street gang. The petition specifically alleged Juan was 16 years old at the time of the alleged offense. Contemporaneously with their filing of the section 602 petition, the People also filed and served a motion for a determination Juan was not a fit and proper subject to be dealt with under the juvenile court law. (§ 707, subds. (b), (c).)
On February 14, 2012 the People filed a second section 602 petition alleging Juan had violated a criminal street gang injunction, a misdemeanor. (Pen. Code, § 166, subd. (a)(10).) Both matters were continued to February 28, 2012 for the setting of a fitness hearing.
Also on February 14, 2012 the People filed a criminal complaint (People v. Gutierrez-Hernandez and [G.] (Superior Court, Los Angeles County, No. BA393911)), alleging on October 26, 2011 Juan and a confederate had committed the crime of murder (Pen. Code, § 187) with special allegations Juan had personally and intentionally discharged a firearm proximately causing great bodily injury or death (Pen. Code, § 12022.53, subds. (b), (c), (d)) and the crime had been committed to benefit a criminal street gang.
At a hearing to schedule the fitness hearing on February 28, 2012, Commissioner Robert J. Totten, sitting as a juvenile court referee, noted the murder complaint naming Juan as a defendant had been directly filed in criminal court and explained his view of the governing law: "[W]hen there has been a direct filing, that is a determination by the Legislature that the minor is unfit and, therefore, pursuant to [section] 707.01 this case should go up to the adult court." The court then invited argument from counsel. The deputy public defender representing Juan argued transfer of the pending petition to criminal court required a judicial finding of unfitness; the discretionary direct filing of the criminal complaint did not carry with it an implied finding of unfitness within the meaning of section 707.01, the transfer statute. The deputy district attorney agreed with defense counsel's argument: "[I]n order for this case to go up, I believe the court needs to actually make a finding . . . . [T]he court cannot merely deem him unfit on a case without making a finding."
Following argument the court expanded on its reasoning, observing that section 707.01 refers to a finding of unfitness "pursuant to section 707" as a prerequisite to transfer of a pending wardship petition and the authorization for discretionary direct filing in the criminal court is set forth in section 707, subdivision (d): "[I]t doesn't exclude (d)(1), it just says 707." The court also commented it would make no sense to have a minor subject to adult consequences in one case as the result of a direct filing yet continue in juvenile court on another case. Finally, the court expressed the pragmatic assessment that, even if an evidentiary hearing were held, evaluation of the criteria for determining fitness would undoubtedly result in a finding of unfitness in light of the pending criminal charge that "is so heinous that the Legislature determines . . . you have discretion to file as an adult."
The court then ruled "that the minor is, therefore, unfit for juvenile court and that this case is ordered to be filed in the adult court." The minute order reflects the matter was referred to the District Attorney for prosecution in criminal court and the juvenile petition dismissed, with dismissal stayed pending the filing of an adult complaint. The court thereafter stayed its orders pending a rehearing before a superior court judge. Juan timely filed a petition for rehearing, which was summarily denied.
After the stay was lifted, the People filed an amended criminal complaint in the pending felony case (No. BA393911), alleging the October 26, 2011 murder as count 1, the January 8, 2012 attempted murder as count 2 and the December 15, 2011 violation of the criminal street gang injunction as count 3. The two pending section 602 petitions were then dismissed. Juan was arraigned on the amended complaint on May 1, 2012.
On May 21, 2012 Juan petitioned this court for a writ of mandate to compel the juvenile court to vacate its orders deeming him unfit for juvenile court treatment and thereafter to conduct a formal fitness hearing pursuant to section 707. At our request the People filed an informal response to the petition. Although they had previously supported Juan's position and urged the juvenile court to conduct a fitness hearing, in their opposition to the writ petition the People argued Juan was properly found unfit without a hearing based on the discretionary direct filing of a case against him in criminal court.*fn2
On June 21, 2012 we issued an order to show cause why the relief requested in the petition should not be granted. On July 9, 2012 the People filed their return and answer to the ...