Jose D. v. Superior Court of San Diego Cty.

Opinion

NARES, J.

Petitioner was found guilty by jury in superior court of second degree murder with personal use of a deadly weapon and two counts of assault with a deadly weapon and great bodily injury. During his probation interview petitioner asserted he was a juvenile at the time of the offense. The court found that petitioner was a minor and ruled he had waived his right to be tried and sentenced in juvenile court by not disclosing his minority. Petitioner asked this court to transfer the case to juvenile court for a determination of his fitness for treatment as a juvenile. We stayed sentencing. After receiving a response from the People, we issued the peremptory writ directing transfer of the case to juvenile court to determine whether petitioner should be tried and sentenced as an adult or as a juvenile and making the opinion final five days after filing. When an error was brought to our attention, we had lost jurisdiction. The Supreme Court granted review on its own motion and transferred the matter back to this court for further proceedings. We again issue the peremptory writ directing transfer of the

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case to juvenile court to determine whether petitioner should be sentenced as an adult or a juvenile.

Discussion

The People agree the court, after satisfying itself that petitioner was a minor, should have suspended proceedings and referred the case to juvenile court. (Welf. & Inst. Code,

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§ 604, subd. (a).) In this particular case, since the minor meets the criteria of section 707, the juvenile court will need to determine whether the minor is unfit to be tried as a juvenile. If the court so finds, the case should return to superior court for sentencing (§ 707.1, subd. (a)). However, if the juvenile court determines the minor is amenable to the care and treatment of juvenile court, the question arises whether the trial already completed in superior court must be repeated. In other words, may an adult who was a minor at the time of the offense and who is found fit to be tried as a juvenile, waive the benefits of the juvenile law as to trial but not as to sentencing. We conclude he may.