Supreme Court of California Justia
Docket No. S109642
Guillory v. Superior Court

Filed 7/17/03


) Ct.App.

Contra Costa County
Real Party in Interest.

Welfare and Institutions Code1 section 602, subdivision (b) (hereafter section
602(b)), as amended on March 7, 2000, by Proposition 21 (entitled the Gang
Violence and Juvenile Crime Prevention Act of 1998), mandates prosecution in
adult criminal court of minors who are at least 14 years of age at the time they
allegedly commit certain murders or sex offenses. In this case we consider
whether a prosecution under section 602(b) may be initiated by grand jury
indictment. We conclude a minor may be indicted under section 602(b), and
therefore affirm the judgment of the Court of Appeal.

All further statutory references are to this code unless otherwise indicated.

On April 18, 2001, a Contra Costa County grand jury returned an indictment
against petitioner Shannon Guillory. Petitioner was a minor at the time of the
alleged offenses. The indictment alleges petitioner was 14 years of age or older
when she personally killed Calvin Curtis, and that a special circumstance
enumerated in Penal Code section 190.2, subdivision (a) was applicable. (Welf. &
Inst. Code, § 602(b).) It further alleges petitioner committed seven felonies: first
degree murder with special circumstances (Pen. Code, §§ 187, 190.2, subd.
(a)(17)), first degree residential robbery (id., §§ 211, 212.5, subd. (a)), carjacking
(id., § 215, subd. (a)), kidnapping for robbery (id., § 209, subd. (b)), kidnapping
for carjacking (id., § 209.5, subd. (a)), felony child abuse (id., § 273a, subd. (a)),
and kidnapping (id., § 207, subd. (a)).
Petitioner demurred to the indictment, ultimately asserting that a juvenile
may not be indicted by a grand jury pursuant to section 602(b). The trial court
overruled the demurrer. The Court of Appeal denied petitioner’s ensuing petition
for writ of mandate in a published opinion, modified the opinion, and denied her
petition for rehearing. Expressly disagreeing with People v. Superior Court
(Gevorgyan) (2001) 91 Cal.App.4th 602 (Gevorgyan), the court held a minor may
be indicted pursuant to section 602(b).
We granted petitioner’s petition for review.
Section 602, subdivision (a), sets forth a general rule that minors who
commit crimes fall within the juvenile court’s jurisdiction.2 (Manduley v.

Section 602, subdivision (a), provides: “Except as provided in subdivision
(b), any person who is under the age of 18 years when he or she violates any law
of this state or of the United States or any ordinance of any city or county of this

(footnote continued on next page)

Superior Court (2002) 27 Cal.4th 537, 548 (Manduley).) Section 602(b) is an
exception to this general rule, providing: “Any person who is alleged, when he or
she was 14 years of age or older, to have committed one of the following offenses
shall be prosecuted under the general law in a court of criminal jurisdiction:
[¶] (1) Murder, as described in Section 187 of the Penal Code, if one of the
circumstances enumerated in subdivision (a) of Section 190.2 of the Penal Code is
alleged by the prosecutor, and the prosecutor alleges that the minor personally
killed the victim. [¶] (2) [Enumerated] sex offenses, if the prosecutor alleges that
the minor personally committed the offense, and if the prosecutor alleges one of
the circumstances enumerated in the One Strike law, subdivision (d) or (e) of
Section 667.61 of the Penal Code, applies . . . .” (Italics added.)
Petitioner does not contend that a juvenile may never be indicted, only that a
prosecution under section 602(b) may not be initiated by indictment. (See People
v. Aguirre (1991) 227 Cal.App.3d 373, 378 [“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”].) In particular, she adopts the interpretation of
section 602(b) in Gevorgyan, which held the language “alleged by the prosecutor”
and “the prosecutor alleges” refers solely to an information because an indictment
contains the allegations of the grand jury, not the prosecutor. (Gevorgyan, supra,
91 Cal.App.4th at pp. 611-612.) The People argue that once an “indictment is
presented to the superior court it becomes the accusatory pleading of the

(footnote continued from previous page)

state defining crime other than an ordinance establishing a curfew based solely on
age, is within the jurisdiction of the juvenile court, which may adjudge such
person to be a ward of the court.”

We agree with the People. The focus of Welfare and Institutions Code
section 602(b) appears to be on the circumstances alleged, not on who alleges
them. Indeed, as a practical matter, because the prosecutor represents the People
in every criminal action whether initiated by indictment or information, he has a
hand in making all such allegations. (Gov. Code, § 26500; Pen. Code, § 684; Dix
v. Superior Court (1991) 53 Cal.3d 442, 451.) In any event, we find persuasive
the following portion of the Court of Appeal’s analysis:
“To assess whether an indictment contains the allegations of the prosecutor,
we first examine the role served by an indictment. The California Constitution
specifies that felonies [shall] be prosecuted either by ‘indictment or, after
examination and commitment by a magistrate, by information.’ (Cal. Const.,
art. I, § 14.) Penal Code section 949 reads in pertinent part, ‘[t]he first pleading on
the part of the people in the superior court in a felony case is the indictment,
information, or the complaint in any case certified to the superior court under
[Penal Code] Section 859a.’ The People of the State of California are the plaintiff
in every criminal proceeding (Pen. Code, § 684), and the public prosecutor has the
sole responsibility to represent the People of the State of California in the
prosecution of criminal offenses. (Dix v. Superior Court[, supra,] 53 Cal.3d 442,
451.) Accordingly, ‘the first pleading by the prosecution in felony cases may be
either an indictment or an information.’ (4 Witkin & Epstein, Cal. Criminal Law
(3d ed. 2000) Pretrial Proceedings, § 169, p. 374, italics added.)
“It is important to understand the role that the grand jury plays in the
indictment process. The grand jury is a judicial body that is part of the judicial
branch of government. (McClatchy Newspapers v. Superior Court (1988) 44
Cal.3d 1162, [1171-]1172.) The role of the grand jury in an indictment proceeding
is to ‘determine whether probable cause exists to accuse a defendant of a particular
crime.’ (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026.) 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.’ (Id.
at p. 1027.) 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
“When the district attorney chooses to proceed by indictment rather than by
information, the indictment itself must be ‘draw[n]’ by the district attorney. (Gov.
Code, § 26502.) However, a prosecutor who draws an indictment acts as more
than a mere scribe. 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.’ The public prosecutor is also specifically charged
‘within his or her discretion’ to ‘initiate and conduct . . . all prosecutions.’ (Gov.
Code, § 26500.) 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.”
In light of the Court of Appeal’s foregoing analysis, once an indictment is
filed in the trial court and the prosecutor carries forward a prosecution based on
that pleading, the indictment necessarily contains the prosecutor’s allegations.
Indeed, the prosecutor has certain discretion regarding the indictment. He may
seek to amend it, for example, to charge prior convictions not included in the
indictment without any further action on the part of the grand jury. (Pen. Code,
§ 969a.) He may also seek dismissal of the action in furtherance of justice. (Pen.
Code, § 1385, subd. (a).)
Moreover, it appears Welfare and Institutions Code section 602(b) does not
come into play until after the indictment is filed in the trial court. Section 602(b)
provides that certain minors “shall be prosecuted under the general law in a court
of criminal jurisdiction.” It then makes reference to the language at issue here
regarding the prosecutor’s allegations. Arguably, the time at which a minor is
“prosecuted under the general law in a court of criminal jurisdiction” (ibid.) is
following the filing of an indictment. That is because the trial court cannot
determine whether the allegations satisfy the Welfare and Institutions Code section
602(b) criteria, and hence the minor is properly in a court of criminal jurisdiction
on that basis, until the indictment is filed. Once the indictment is filed in the trial
court, it is the prosecutor who proceeds with the criminal action. Thus, the
allegations in the indictment essentially become his own. (See Pen. Code, § 949.)
It is significant that at the time Proposition 21 was approved by the voters,
former section 602(b) expressly referred to “the right to a preliminary hearing.”
(Stats. 1999, ch. 996, § 12.2.) Historically, former section 602 simply contained
language similar to that in current section 602, subdivision (a), and hence
contained no exceptions for prosecution in adult criminal court. (See Stats. 1976,
ch. 1071, § 12, p. 4819; Stats. 1972, ch. 84, § 1, p. 109; Stats. 1971, ch. 1748,
§ 66, p. 3766; Stats. 1961, ch. 1616, § 2, p. 3472.) In 1999, prior to the passage of
Proposition 21, former section 602 was amended by the Legislature, effective
January 1, 2000. This amendment required prosecution in adult criminal court for
certain cases and contained the language at issue here, “the prosecutor alleges,” in
some but not all of the delineated offenses.3 (Stats. 1999, ch. 996, § 12.2.)
Most important, former section 602 also contained former subdivision (c),
which provided in part: “Any minor directly charged under subdivision (b) shall
have the right to a preliminary hearing to determine if there is probable cause to
hold him or her to answer.” (Stats. 1999, ch. 996, § 12.2, italics added.) Neither
party here relies on this language in former subdivision (c), which was deleted by
the passage of Proposition 21,4 in interpreting the language “the prosecutor

As amended in 1999, former section 602(b) provided in part:
“(b) Subject to the provisions of this section, any person 16 years of age or
older, who is alleged and proven to have been declared a ward of the court
pursuant to this section on one or more prior occasions for the commission of one
or more felonies, committed after he or she had attained the age of 14 years, shall
be prosecuted in a court of criminal jurisdiction if he or she is alleged to have
committed any of the following criminal offenses:

“(1) Murder in the first degree, as described in Sections 187 and 189 of the
Penal Code, if the prosecutor alleges that the minor personally killed the victim.

“(2) Attempted, willful, deliberate, and premeditated murder, if the
prosecutor alleges that the minor personally attempted to kill the victim.

“(3) [Enumerated] sex offenses, if the prosecutor alleges that the minor
personally committed any of these offenses and that one of the circumstances
enumerated in subdivision (d) or (e) of Section 667.61 of the Penal Code
exists: [¶] . . . [¶]

“(4) Aggravated forms of kidnapping, for which the penalty is life in
prison, and in which the perpetrator personally and intentionally exposed the
victim to a substantial likelihood of death or great bodily injury.

“(5) Any felony enumerated in subdivision (a) of Section 12022.53 of the
Penal Code, in which the minor personally uses and discharges a firearm, within
the meaning of either subdivision (c) or (d) of Section 12022.53 of the Penal
Code.” (Stats. 1999, ch. 996, § 12.2.)
For reasons that are not entirely clear, the ballot pamphlet contains the
1976, not the 1999, version of the statute. (Ballot Pamp., Primary Elec. (Mar. 7,

(footnote continued on next page)

alleges” and “alleged by the prosecutor.” It could be that in referring to “the right
to a preliminary hearing” in former subdivision (c), the Legislature simply
intended to indicate that minors falling within the purview of former section
602(b) were entitled to the same panoply of protections adults received in criminal
court. If so, nothing in the language of current section 602(b) indicates it was
intended to newly give such a right, especially since the language “the right to a
preliminary hearing” is omitted. On the other hand, it could be that minors had the
right to a preliminary hearing under the former statute. If so, then the lack of such
language in current section 602(b) indicates no such right is currently intended. In
any event, it is significant that section 602(b), as amended by Proposition 21,
contains no express reference to a preliminary hearing, despite petitioner’s
argument that a preliminary hearing is the only method by which she may be
prosecuted under that statute.
Finally, nothing in the Proposition 21 ballot materials indicates that a
prosecution under section 602(b) must take a certain form, or may not proceed by
way of indictment. The initiative’s purpose was to “address the problem of violent
crime committed by juveniles and gangs” in part by making “certain minors more
accountable for serious crimes . . . , for example by authorizing prosecution of
these minors in criminal court.” (Manduley, supra, 27 Cal.4th at pp. 575-576.) It
therefore seems unlikely such a limitation on the grand jury’s historic authority to

(footnote continued from previous page)

2000) text of Prop. 21, p. 125.) Even if under these circumstances the electorate is
not presumed to know the law, the fact of the matter is section 602(b) as enacted
by Proposition 21 contains no express reference to a preliminary hearing. (See In
re Lance W.
(1985) 37 Cal.3d 873, 890, fn. 11 [voters presumed to be aware of
existing law].)

indict minors (an authority petitioner concedes) would go unmentioned. As the
Court of Appeal noted, “By any fair reading of Proposition 21, the measure was
intended to expand, not revoke, the authority of courts of criminal jurisdiction over
juveniles, including the authority of grand juries over juveniles. [Fn. omitted.]”
Petitioner notes the grand jury is independent from the prosecutor, and argues
“the allegations of the indictment, whether the prosecutor chooses to pursue them
or not, remain the allegations of the grand jury.” We do not disagree. We merely
conclude that once a prosecutor pursues those allegations, the allegations become
not only those of the grand jury, but also of the prosecutor within the meaning of
section 602(b). Nor, in so doing, are we “conflat[ing]” the roles of prosecutor and
grand jury, as petitioner argues, but rather respecting these roles.
Petitioner further argues that she is entitled to benefit from any reasonable
doubt, or application of the rule of lenity, in the construction of section 602(b).
“[T]he rule of lenity compels courts to resolve true statutory ambiguities in a
defendant’s favor, but this rule applies only if two reasonable interpretations of the
statute stand in relative equipoise.” (People v. Anderson (2002) 28 Cal.4th 767,
780.) That is not the case here.
Petitioner also asserts that “[i]f the specific references to allegations made by
a ‘prosecutor’. . . do not exclude indictments returned by a grand jury,” they are
surplusage. Not so. Notably, section 602(b) does not refer to the prosecutor, but
merely to “[a]ny person who is alleged, when he or she was 14 years of age or
older, to have committed one of the following offenses.” As the People observe,
the phrases “the prosecutor alleges” and “alleged by the prosecutor” in section
602(b)(1) and (2) appear to be used interchangeably with the word “alleged” in
section 602(b). Once again, section 602(b) operates once the case is in the trial
court, at which time it is the prosecutor who is making the relevant allegations.
Nor, contrary to petitioner’s assertion, does our reasonable construction of section
602(b) violate any rule requiring that exceptions to a general rule, such as section
602(b), be strictly construed.
Petitioner argues in her reply brief that “as a matter of due process, it is
doubtful whether anything short of a formal, written act by the District Attorney
could provide the key ingredient to the jurisdiction of the ‘adult’ superior court.
[Citations.] Because of this apparent constitutional infirmity, this Court should
avoid a construction of section 602 that would authorize proceeding on the basis
of these oral or tacit allegations.”
We do not rely, however, on “oral or tacit” allegations. Rather, we conclude
that once the indictment is filed in the trial court, that document contains the
prosecutor’s allegations in the ensuing prosecution. Petitioner was on notice from
the language of section 602(b) that she was subject to trial in a court of criminal
jurisdiction should the indictment filed satisfy the criteria of that subdivision.
The judgment of the Court of Appeal is affirmed.5


People v. Superior Court (Gevorgyan), supra, 91 Cal.App.4th 602, is
disapproved to the extent it is inconsistent with this opinion.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Guillory v. Superior Court

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 100 Cal.App.4th 750
Rehearing Granted


Opinion No.

Date Filed: July 17, 2003


County: Contra Costa
Judge: Richard E. Arnason*


Attorneys for Appellant:

David C. Coleman III, Public Defender, Winnifred S. Gin and Ron Boyer, Deputy Public Defenders, for


Attorneys for Respondent:

No appearance for Respondent.

Gary T. Yancey and Robert J. Kochly, District Attorneys, and L. Douglas Pipes, Deputy District Attorney,
for Real Party in Interest.

*Retired judge of the Contra Costa Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Ron Boyer
Deputy Public Defender
800 Ferry Street
Martinez, CA 94553
(925) 335-8000

L. Douglas Pipes
Deputy District Attorney
County Courthouse, Fourth Floor
P.O. Box 670
Martinez, CA 4553
(925) 957-2222

Opinion Information
Date:Docket Number:
Thu, 07/17/2003S109642

1Guillory, Shannon (Petitioner)
Represented by Ronald Boyer
Deputy Public Defender - Contra Costa County
800 Ferry Street
Martinez, CA

2Superior Court Of Contra Costa County (Respondent)
3The People (Real Party in Interest)
Represented by L. Douglas Pipes
Senior Deputy District Attorney - Contra Costa
725 Court Street, P. O. Box 670
Martinez, CA

4The People (Real Party in Interest)
Represented by Attorney General - San Francisco Office
455 Golden Gate Avenue, Suite 11000
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

Jul 17 2003Opinion: Affirmed

Sep 5 2002Petition for review filed
  by Public Defender, Contra Costa County, for Petitioner Shannon Guillory
Sep 9 2002Record requested
Sep 25 2002Received Court of Appeal record
  accordian file
Sep 27 20022nd record request
  for the rest of the record [petition and exhibits]
Oct 2 2002Received:
  Additional record in one brown file box
Oct 3 2002Telephone conversation with:
  Contra Costa Master Calendar -- Petitioner Shannon Guillory's arraignment is scheduled for 11/15/2002 @ 8:30 a.m., Dept. 28, before Judge Richard Arnason. Contra Costa case #010651-8. [ Master Calendar #(925) 646-1546.
Oct 23 2002Petition for Review Granted; issues limited (criminal case)
  The issue to be briefed and argued shall be limited to whether a prosecution under Welfare and Institutions Code section 602, subdivision (b), can be initiated by grand jury indictment. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Oct 24 2002Note:
  Grant letter processed.
Nov 13 2002Opening brief on the merits filed
  by counsel for petitioner (Shannon Guillory)
Dec 6 2002Answer brief on the merits filed
  RPI People
Dec 16 2002Request for extension of time filed
  by appellant to file the Reply Brief on the Merits to Friday, January 10, 2003.
Dec 18 2002Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the Reply Brief on the Merits is extended to and including January 10, 2003. No further extensions of time will be granted.
Jan 10 2003Reply brief filed (case fully briefed)
  by counsel for petitioner Shannon Guillory
Mar 27 2003Received:
Mar 28 2003Request for judicial notice filed (in non-AA proceeding)
  by RPI People
Apr 9 2003Request for judicial notice granted
Apr 30 2003Case ordered on calendar
  5-28-03, 1:30pm, S.F.
May 28 2003Cause argued and submitted
Jul 17 2003Opinion filed: Judgment affirmed in full
  Majority Opinion by: Brown, J. -- Joined by: George, C. J., Kennard, Baxter, Werdegar, Chin, Moreno, JJ.
Aug 18 2003Remittitur issued (criminal case)
  Two certified copies sent to Court of Appeal, Division Five
Aug 19 2003Received:
  Receipt for remittitur from First District, Division Five, signed for by Mary P. Quilez, Deputy Clerk

Nov 13 2002Opening brief on the merits filed
Dec 6 2002Answer brief on the merits filed
Jan 10 2003Reply brief filed (case fully briefed)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website