Filed 10/1/19
See Dissenting Opinion

                            CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                        DIVISION TWO



B.M.,

        Petitioner,                                E072265

v.                                                 (Super.Ct.No. RIJ1301366)

THE SUPERIOR COURT OF                              OPINION
RIVERSIDE COUNTY,

        Respondent;

THE PEOPLE,

        Real Party in Interest.



        ORIGINAL PROCEEDING; petition for writ of mandate. Roger A. Luebs, Judge.

Petition granted.

        Steven L. Harmon, Public Defender and David J. Macher, Deputy Public

Defender, for Petitioner.

        Michael A. Hestrin, District Attorney and Robert A. Hightower, Deputy District

Attorney, for Real Party in Interest.




                                             1
       This case concerns the validity of a recent law that raises the minimum age at

which a juvenile can be tried in criminal court. The new law amends a provision of the

“Public Safety and Rehabilitation Act” (Proposition 57), which the voters approved in

2016 with the express goals of reducing prison spending, emphasizing rehabilitation for

youth offenders, and limiting prosecutorial authority over the decision to try a minor as

an adult. To advance these goals, Proposition 57 eliminated prosecutors’ ability to

directly file charges against minors ages 14 to 17 in criminal court, requiring them
                                                                             1
instead to seek the juvenile court’s permission by way of a transfer hearing. Proposition

57 authorized legislative amendments that are “consistent with and further [its] intent.”

(Ballot Pamp., Gen. Elec. (Nov. 8, 2016) (Ballot Pamp.) text of Prop. 57, § 5, p. 145.) In

2018, the Legislature enacted the law at issue here, Senate Bill Number 1391 (2017-2018

Reg. Sess.) (Stats. 2018, ch. 1012, § 1) (SB 1391), which eliminates prosecutors’ ability

to seek transfer hearings for 14 and 15 year olds, effectively raising the minimum age a

child can be tried as an adult from 14 to 16.

       The change affected B.M.’s prosecution for murder. SB 1391 became effective

after the Riverside County District Attorney had filed a wardship petition against the then

15-year-old and had moved to transfer her to criminal court. While the transfer motion

was pending, the juvenile court (respondent Riverside County Superior Court) ruled the

new law is invalid because it does not further what it identified as Proposition 57’s goal

of giving judges the authority to transfer 14 to 17 year olds to criminal court. B.M. filed

       1  For simplicity, when we make unqualified references to a minor’s age, we mean
their age at the time of their alleged offense.

                                                2
a petition for a writ of mandate arguing the court misinterpreted Proposition 57’s purpose

in declaring SB 1391 invalid. We agree.

       The juvenile court’s error was to interpret Proposition 57’s transfer hearing

requirement as a purpose in and of itself, instead of a means to further the purpose of

limiting prosecutorial charging discretion. As we explain, we conclude SB 1391 furthers

each of Proposition 57’s express purposes, including the one concerned with limiting

prosecutorial discretion. We will therefore grant B.M.’s petition for a writ of mandate

and direct the juvenile court to vacate its order declaring SB 1391 invalid.


                                              I

                                          FACTS

       The voters approved Proposition 57 in November 2016. On April 6, 2018, the

Riverside County District Attorney filed a wardship petition against B.M., alleging she

had committed special circumstances arson-murder. (Welf. & Inst. Code, § 602,

unlabeled statutory citations refer to this code; Pen. Code, §§ 187, 190.2, subd.

(a)(17)(H).) Along with the petition, the district attorney requested a transfer hearing,

arguing B.M. was unfit for the juvenile justice system.

       B.M.’s case was continued for several months, and meanwhile in September 2018,

the Legislature passed and the Governor approved SB 1391, which eliminated

prosecutors’ ability to seek transfer hearings for 14 and 15 year olds. The Legislature

declared SB 1391 “is consistent with and furthers the intent of Proposition 57.” (Stats.

2018, ch. 1012, § 3.) In his signing statement, the Governor acknowledged raising the


                                             3
transfer age to 16 would mitigate the consequences for 14 and 15 year olds who had

committed “very serious crimes,” but concluded rehabilitating those young offenders is a

more important aim than punishment. (Sept. 30, 2018, Gov. ltr to Senate.) “There is a

fundamental principle at stake here: whether we want a society which at least attempts to

reform the youngest offenders before consigning them to adult prisons where their

likelihood of becoming a lifelong criminal is so much higher. [¶] My view is that we

should continue to work toward a more just system that respects victims, protects public

safety, holds youth accountable, and also seeks a path of redemption and reformation

wherever possible.” (Ibid.)

       At a hearing in October 2018, B.M.’s counsel, the Riverside County Public

Defender, moved to dismiss the pending transfer motion under SB 1391. The district

attorney opposed, arguing the new law is an invalid legislative amendment because it

conflicts with Proposition 57’s intent to authorize judges to transfer 14 to 17 year olds to

criminal court. After supplemental briefing and a bifurcated hearing on the issue, the

juvenile court agreed with the district attorney and ruled SB 1391 is invalid. The court

concluded Proposition 57’s intent “is explicit in its own language when it says that 14-

and 15-year-olds can be prosecuted for murder in the adult court upon motion of the

People and granting of that motion by the courts.” It further concluded SB 1391

conflicted with that intent by eliminating prosecutors’ ability to file transfer motions for

those juveniles. The court found the Legislature’s declaration that SB 1391 is consistent




                                              4
with Proposition 57’s intent “conclusory,” and found the Governor’s signing statement

“equally unpersuasive.”

                                               II

                                         ANALYSIS

       A.     Standard of Review

       We review the juvenile court’s interpretation of Proposition 57 and SB 1391 de

novo. (People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442,

445 [“The interpretation of a statute and the determination of its constitutionality are

questions of law”].) Where voter initiatives like Proposition 57 are concerned, the

California Constitution limits the power of the Legislature to “undo[] what the people

have done” (Proposition 103 Enforcement Project v. Quackenbush (1998) 64

Cal.App.4th 1473, 1484) by requiring voter approval of any law amending or repealing

an initiative, unless the initiative itself allows legislative amendment. (Cal. Const., art. II,

§ 10, subd. (c).) Proposition 57 contains such an allowance, permitting legislative

amendments that are “consistent with and further [its] intent.” (Ballot Pamp., supra, text

of Prop. 57, § 5 at p. 145; see Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243,

1251 (Amwest) [“It is common for an initiative measure to include a provision

authorizing the Legislature to amend the initiative without voter approval only if the

amendment furthers the purpose of the initiative”].) As our Supreme Court explained in

Amwest, “[s]uch a limitation upon the power of the Legislature must be strictly construed,




                                               5
but it also must be given the effect the voters intended it to have.” (Amwest, supra, 11

Cal.4th at pp. 1255-1256.)

       Thus, when determining whether a legislative amendment furthers an initiative’s

intent, we must apply “a strong presumption of constitutionality [to the] Legislature’s

acts” and uphold the amendment “if, by any reasonable construction, it can be said that

the statute furthers the purposes” of the initiative. (Amwest, supra, 11 Cal.4th at

pp. 1253, 1256, italics added.) We also bear in mind the well-established separation of

powers principle that “[c]ourts should exercise judicial restraint in passing upon the acts

of coordinate branches of government; the presumption is in favor of constitutionality,

and the invalidity of the legislation must be clear before it can be declared

unconstitutional.” (Dittus v. Cranston (1959) 53 Cal.2d 284, 286.) Legislative findings

are entitled to “great weight” and “will be upheld unless they are found to be

unreasonable and arbitrary.” (Amwest, at p. 1252.) This is especially true where the

Legislature has directly considered the constitutional issue and found the amendment

consistent with the voter initiative, as it has here. ‘“Although the ultimate constitutional

interpretation must rest, of course, with the judiciary (see Marbury v. Madison (1803) 5

U.S. (1 Cranch) 137, 176-180 [2 L.Ed. 60]), a focused legislative judgment on the

question enjoys significant weight and deference by the courts.”’ (Property Reserve, Inc.

v. Superior Court (2016) 1 Cal.5th 151, 193.)




                                              6
       B.     Historical Background

       Proposition 57 was not approved in a vacuum. To understand its purpose, it’s

helpful to place the initiative in historical context. (See Amwest, supra, 11 Cal.4th at

p. 1257 [reviewing history of insurance rate regulation “[i]n order to determine the

purposes of Proposition 103”].)

              1.      Differences between the juvenile and criminal justice systems

       Whether a minor remains in the juvenile justice system or is tried as an adult in

criminal court “has potentially major consequences.” (People v. Superior Court (Lara)

(2018) 4 Cal.5th 299, 306 (Lara).) While a minor “convicted of serious crimes in adult

court can be punished by a long prison sentence, juveniles are generally treated quite

differently, with rehabilitation as the goal.” (Ibid.)

       “A ‘juvenile court’ is a separate, civil division of the superior court. (§ 246.) A

prosecutor charges a minor with an offense by filing a juvenile petition, rather than a

criminal complaint. (See §§ 653.7, 655.) Minors ‘admit’ or ‘deny’ an offense, rather

than plead ‘guilty’ or ‘not guilty.’ (§ 702.3.) There are no ‘trials,’ per se, in juvenile

court, rather there is a ‘jurisdictional hearing’ presided over by a juvenile court judge.

(§ 602.) The jurisdictional hearing is equivalent to a ‘bench trial’ in a criminal court.

(See Cal. Rules of Court, rule 5.780.) Although a juvenile court judge adjudicates

alleged law violations, there are no ‘conviction[s]’ in juvenile court. (§ 203.) Rather, the

juvenile court determines—under the familiar beyond [a] reasonable doubt standard and

under the ordinary rules of evidence—whether the allegations are ‘true’ and if the minor


                                               7
comes within its jurisdiction. (See § 602 et seq.)” (People v. Vela (2017) 11 Cal.App.5th

68, 73-74 (Vela).)

       “There is no ‘sentence,’ per se, in juvenile court. Rather, a judge can impose a

wide variety of rehabilitation alternatives after conducting a ‘dispositional hearing,’

which is equivalent to a sentencing hearing in a criminal court. (§ 725.5; In re Devin J.

(1984) 155 Cal.App.3d 1096, 1100.) In the more serious cases, a juvenile court can

‘commit’ a minor to juvenile hall or to the Division of Juvenile Justice (DJJ), formerly

known as the California Youth Authority (CYA). In order to commit a minor to the DJJ,

the record must show that less restrictive alternatives would be ineffective or

inappropriate. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.) The DJJ, rather than

the court, sets a parole consideration date. DJJ commitments can range from one year or

less for nonserious offenses, and up to seven years for the most serious offenses,

including murder. (See Cal. Code Regs, tit. 15, §§ 4951-4957.) A minor committed to

DJJ must generally be discharged no later than 23 years of age. (§ 607, subd. (f).)”

(Vela, supra, 11 Cal.App.5th at pp. 73-74.)

       These “‘[s]ignificant differences between the juvenile and adult offender laws

underscore their different goals: The former seeks to rehabilitate, while the latter seeks to

punish.’” (Vela, supra, 11 Cal.App.5th at p. 73.) The Welfare and Institutions Code

defines the dual goals of the juvenile justice system as (i) “to provide comprehensive

education, training, treatment, and rehabilitative services to youthful offenders under the

jurisdiction of the department, that are designed to promote community restoration,


                                              8
family ties, and accountability to victims” and (ii) “to produce youth who become law-

abiding and productive members of society.” (§ 1710, subd. (b)(2).)

              2.      California’s prosecution of minors

       Because our juvenile justice system was “created to deal with [young offenders] in

an essentially nonpenal manner, for the protection and benefit of the minor” (People v.

Lara (1967) 67 Cal.2d 365, 380), it may come as no surprise that for much of our state’s

history we have shielded all but our oldest minors from criminal court. Initially, “[t]he

general rule used to be . . . a child [under 18] could be tried in criminal court only after a
                                                                                             2
judicial determination . . . he or she was unfit to be dealt with under juvenile court law.”

(Lara, supra, 4 Cal.5th at p. 305, italics added.) However, in 1961, with the enactment of

the “Juvenile Court Law,” the Legislature set the minimum age at which a minor could be

transferred to criminal court at 16 years. (Stats. 1961, ch. 1616, § 2, p. 3485.) The law

was “hailed as a model for other states to follow.” (Boches, Juvenile Justice in

California: A Re-Evaluation (1967) 19 Hastings L.J. 47, 1 [“California can take just

pride in having initiated the trend towards procedural protection of the rights of juveniles

. . . Such basic concepts as detention hearings, right to counsel, appointment of counsel




       2  The predecessor to Welfare and Institutions Code section 707, the provision
governing fitness determinations, was enacted by the Legislature in 1915. That statute
gave the court authority to determine any minor alleged to have violated the law “is not a
fit and proper subject to be dealt with under the [juvenile laws] . . . [and to] dismiss the
petition therein, and direct that said person be prosecuted under the general law.” (Stats.
1915, ch. 631, § 4c, p. 1228.)

                                               9
for indigents, mandatory records of proceedings, and the sealing of records were

spearheaded by California”], fns. omitted.)

       In 1975, the Legislature established the relevant criteria for the fitness or transfer

determination, which remain essentially the same today. Specifically, the juvenile court

must determine whether the minor is “amenable to the care, treatment, and training

program available through the facilities of the juvenile court” based on: (1) the minor’s

criminal sophistication, (2) whether they can be rehabilitated before the juvenile court

will lose jurisdiction, (3) their previous delinquent history, (4) the success of prior

attempts to rehabilitate the minor, and (5) the circumstances and gravity of the alleged

offense. (Welf. & Inst. Code, § 707, subd. (c); cf. Stats. 1975, ch. 1266, § 4.)

       The minimum transfer age remained at 16 for over three decades, until 1994, when

the Legislature lowered it to 14. (Stats. 1994, ch. 453, § 9.5, former Welf. & Inst. Code,

§ 707, subd. (d).) Under that 1994 provision, minors who committed one of several

enumerated serious or violent felonies (including murder, robbery, and forcible rape)

when they were 14 or 15 could be found unfit by the juvenile court and transferred to

criminal court. (Id. at former § 707, subd. (d)(2).)

       The biggest shift in our prosecution of youth offenders, however, occurred in 1999

and 2000, when changes to the Welfare and Institutions Code gave prosecutors authority

to directly file charges against minors in criminal court without a judicial determination

of unfitness. (Lara, supra, 4 Cal.5th at p. 305 [under the 1999 & 2000 amendments

“prosecutors were permitted, and sometimes required, to file charges against a juvenile


                                              10
directly in criminal court, where the juvenile would be treated as an adult”].) The most

significant of these changes was Proposition 21, which California voters passed in 2000,

based primarily on concerns about gang violence. (Ballot Pamp., Primary Elec. (March

2000) text of Prop. 21, § 2.)

       “‘Proposition 21 revised the juvenile court law to broaden the circumstances in

which minors 14 years of age and older can be prosecuted in the criminal division of the

superior court, rather than in juvenile court. [It] authorize[d] specified charges against

certain minors to be filed directly in a court of criminal jurisdiction, without a judicial

determination of unfitness under the juvenile court law.’” (Vela, supra, 11 Cal.App.5th

at p. 74, quoting Manduley v. Superior Court (2002) 27 Cal.4th 537, 549, 574.)

Proposition 21 required district attorneys to file charges directly in criminal court

(mandatory direct filing) against any minor alleged to have committed either special

circumstances murder (Pen. Code, § 190.2) or a One Strike sex offense (Pen. Code,

§ 667.61) when they were 14 or older. (Former Welf. & Inst. Code, § 602, subd. (b),

repealed by Initiative Measure (Prop 57, § 4.1, approved Nov. 8, 2016, eff. Nov. 9,

2016).) For other serious offenses and circumstances, Proposition 57 gave district

attorneys discretion to charge minors age 14 to 17 in criminal court. (Former Welf. &

Inst. Code, § 707, subd. (d), repealed by Initiative Measure (Prop 57, § 4.2, approved

Nov. 8, 2016, eff. Nov. 9, 2016).)

       Less than two decades later, the electorate passed Proposition 57 and repealed the

practice of mandatory and discretionary direct filing, essentially “return[ing] California to


                                              11
[its] historical rule,” where no minor could be tried in criminal court without “a judicial

determination . . . he or she was unfit to be dealt with under juvenile court law.” (Lara, 4

Cal.5th at p. 305.) Under Proposition 57, district attorneys could request to transfer only

two categories of minors—(i) 16 and 17 year olds alleged to have committed a felony and
                                                                                             3
(ii) 14 and 15 year olds alleged to have committed a specified serious or violent felony.

(Former Welf. & Inst. Code, § 707, subd. (b), Prop. 57, § 4.2.) Such minors could be

tried as adults “only after a juvenile court judge conducts a transfer hearing to consider

various factors such as the minor’s maturity, degree of criminal sophistication, prior

delinquent history, and whether the minor can be rehabilitated.” (Lara, supra, 4 Cal.5th

at p. 305; see Welf. & Inst. Code, § 707, subd (a)(1) [listing transfer factors].)

       The voters approved Proposition 57 in the midst of a “sea change in penology

regarding the relative culpability and rehabilitation possibilities for juvenile offenders.”

(Vela, supra, 11 Cal.App.5th at p. 75.) The change is most notably reflected in a series of

United States Supreme Court opinions issued in the 16 years between California’s

approval of Propositions 21 and 57. Recognizing the significant differences between

children and adults, the opinions place constitutional limits on punishments for minors

“even when they commit terrible crimes.” (Miller v. Alabama (2012) 567 U.S. 460, 472

(Miller) [holding unconstitutional mandatory life sentences without parole (LWOP) for

minors, even for homicide offenses, and requiring consideration of youth-related factors


       3 The list of felonies includes murder, attempted murder, robbery, carjacking,
assault with a firearm, and various sex offenses. (§ 707, subd. (b).)

                                              12
at sentencing]; see also, e.g., Graham v. Florida (2010) 560 U.S. 48, 67 [holding

unconstitutional LWOP sentences for minors convicted of nonhomicide offenses];

Montgomery v. Louisiana (2016) 136 S.Ct. 718 [holding Miller’s prohibition on

mandatory LWOP for minors constitutes a new substantive constitutional rule that is

retroactive on state collateral review].)

       The U.S. Supreme Court based those decisions on the “common sense”

differences between children and adults, as well as recent scientific research on

adolescent brain development. (Miller, supra, 567 U.S. at p. 471.) In Miller, the Court

identified “three significant gaps between juveniles and adults” that show “juveniles have

diminished culpability and greater prospects for reform,” and are therefore “‘less

deserving of the most severe punishments.’” (Ibid.) First, juveniles ‘‘“lack [] maturity’’”

and have ‘‘“an underdeveloped sense of responsibility,’’” which leads to “recklessness,

impulsivity, and heedless risk-taking.” (Ibid.) Second, they “‘are more vulnerable . . . to

negative influences and outside pressures,’ including from their family and peers; they

have limited ‘contro[l] over their own environment’ and lack the ability to extricate

themselves from horrific, crime-producing settings.” (Ibid.) And third, ‘“a child’s

character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions

less likely to be ‘evidence of irretrievabl[e] deprav[ity].’” (Ibid.) These traits “lessen[] a

child’s ‘moral culpability’ and enhance[] the prospect that, as the years go by and

neurological development occurs, his ‘“deficiencies will be reformed.”’” (Id. at p. 472.)




                                              13
          The Governor signed SB 1391 into law on September 30, 2018 and it went into

effect on January 1, 2019. As noted, SB 1391 eliminated district attorneys’ ability to

request transfer hearing for 14 and 15 year olds, thereby returning California’s minimum

transfer age to 16.

          C.     SB 1391 Furthers Proposition 57’s Purposes

          Having reviewed the relevant historical background, we turn to identifying

Proposition 57’s purposes and determining whether SB 1391 advances them, under any

reasonable construction. (Amwest, supra, 11 Cal.4th at p. 1256.) “In order to determine

the intent of Proposition 57, we not only look to its provisions, but we may also look to

the ballot materials in support of its passage.” (Vela, supra, 11 Cal.App.5th at p. 75.) As

the Court explained in Amwest, when determining whether a legislative amendment is

consistent with the purpose of a voter initiative, a court is not “limited to the express

statement of purpose included in the initiative.” (Amwest, at p. 1256.) “To the contrary, .

. . ‘evidence of its purpose may be drawn from many sources, including the historical

context of the amendment, and the ballot arguments favoring the measure.’” (Ibid.)

          Proposition 57 contains a “purpose and intent” section that identifies five express
      4
goals. That section says, “[i]n enacting this act, it is the purpose and intent of the people

          4
          Our dissenting colleague faults us for looking at these express goals, as well as
the information in Proposition 57’s ballot pamphlet. Instead, our colleague would go no
further than the text of Proposition 57’s transfer hearing provision, which he concludes
unambiguously demonstrates a single intent—to authorize juvenile courts to make the
transfer decisions concerning 14 to 17 year olds. In our view, the dissent’s analysis is too
narrow and, more importantly, ignores Amwest. That case makes clear that our task is not
to discern the intent of Proposition 57’s transfer hearing provision. Rather, we must
                                                                    [footnote continued on next page]

                                               14
of the State of California to: [¶]1. Protect and enhance public safety. [¶]2. Save money

by reducing wasteful spending on prisons. [¶]3. Prevent federal courts from

indiscriminately releasing prisoners. [¶]4. Stop the revolving door of crime by

emphasizing rehabilitation, especially for juveniles. [¶]5. Require a judge, not a

prosecutor, to decide whether juveniles should be tried in adult court.” (Ballot Pamp.,

supra, text of Prop. 57, § 2 at p. 141.) In addition to these stated goals, we may also

consider the initiative’s ballot materials and historical context to determine its “major

purposes.” (Amwest, supra, 11 Cal.4th at pp. 1256, 1259; Vela, supra, 11 Cal.App.5th at

p. 75 [“In order to determine the intent of Proposition 57, we not only look to its

provisions, but we may also look to the ballot materials in support of its passage”].)

        We start with the most obvious goal of Proposition 57’s juvenile offender

provisions—stopping “the revolving door of crime by emphasizing rehabilitation.”

(Ballot Pamp., supra, text of Prop. 57, § 2 at p. 141.) Proposition 57 furthers this aim by

repealing the practice of prosecutorial direct filing, thereby “broaden[ing] the number of

minors who could potentially stay within the juvenile justice system, with its primary

emphasis on rehabilitation rather than punishment.” (Vela, supra, 11 Cal.App.5th at


[footnote continued from previous page]
[footnote continued from previous page]
discern the intent behind Proposition 57 as a whole and decide whether SB 1391 furthers
that overarching intent under “any reasonable construction,” all the while applying a
“strong presumption of constitutionality [to the] Legislature’s acts.” (Amwest, supra, 11
Cal.4th at pp. 1253, 1256.) There are other reasons we disagree with the dissent’s
analysis, but its failure to apply Amwest is the most significant. (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455-456 [California Supreme Court precedent is
binding on California appellate courts].)

                                             15
p. 76 [interpreting the purpose behind Proposition 57’s juvenile offender provisions],

italics added.) The argument in favor of Proposition 57 in the voter information guide

pointed out, “the more inmates are rehabilitated, the less likely they are to re-offend . . .

[and] minors who remain under juvenile court supervision are less likely to commit new

crimes.” (Ballot Pamp., argument in favor of Prop. 57 at p. 58.) Our Supreme Court

described Proposition 57’s juvenile offender provisions as an “ameliorative change[] to

the criminal law” because they increased the chances more juveniles would receive “the

potential ‘ameliorating benefits’ of rehabilitation (rather than punishment).” (Lara,

supra, 4 Cal.5th at p. 309.)

       SB 1391 goes a step beyond Proposition 57 and shields an entire class of minors

from criminal court. As the Assembly Committee on Public Safety concluded when it

analyzed the legislative amendment, “Keeping 14 and 15 year olds in the juvenile justice

system will help to ensure that youth receive treatment, counseling, and education they

need to develop into healthy, law abiding adults.” (Assem. Com. on Public Safety, Rep.

on SB 1391 (2017-2018 Reg. Sess.) as amended May 25, 2018, p. 4.) “The juvenile

justice system is very different from the adult system. The juvenile system provides age-

appropriate treatment, services, counseling, and education, and a youth’s participation in

these programs is mandatory. The adult system has no age-appropriate services,

participation in rehabilitation programs is voluntary, and in many prisons, programs are

oversubscribed with long waiting lists.” (Sen. Com. on Public Safety, Rep. on SB 1391

(2017-2018 Reg. Sess.) Feb. 16, 2018, p. 3.) Because SB 1391 definitely, not just


                                              16
potentially, increases the number of juveniles who will remain in the juvenile justice

system and receive rehabilitation-focused services as a consequence of their offenses, it

necessarily follows that the legislative amendment furthers Proposition 57’s aim of youth

rehabilitation.

       When it comes to the initiative’s goal of reducing prison spending, the voters

recognized that the more children who remain in the juvenile justice system, the less

money California will spend on “state prison and parole costs as . . . youths would no

longer spend any time in prison or be supervised by state parole agents following their

release.” (Ballot Pamp., supra, analysis by the legislative analyst at p. 57.) Proposition

57 has the potential to reduce prison spending because it makes it more difficult for

prosecutors to try children in criminal court. Again, because SB 1391 will necessarily

result in fewer juveniles being transferred to the criminal justice system, it will result in a

reduction of prison spending, and therefore advances this intent as well.

       SB 1391 also furthers Proposition 57’s goal of enhancing public safety. In 2007,

the Centers for Disease Control and Prevention published a study by an independent task

force that had reviewed the scientific evidence regarding juvenile transfers to the criminal

justice system. The task force concluded that placing minors in the adult criminal justice

system “typically increases rather than decreases rates of violence among transferred

youth” and, based on that conclusion, recommended against laws “facilitating the transfer

of juveniles to the adult criminal justice system.” (Hahn et. al., Effects on Violence of

Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult


                                              17
Justice System: A Report on Recommendations of the Task Force on Community

Preventive Services, Cal. Dept. of Health and Human Services., Centers for Disease

Control and Prevention (Nov. 2007) pp. 1, 6-9.) In 2009, the federal district courts for

the Eastern and Northern Districts of California concluded our state’s overcrowded

prisons had become “criminogenic,” meaning they contribute to, not minimize, the

occurrence of crime. (Coleman v. Schwarzenegger (E.D.Cal. & N.D.Cal. 2009) 922

F.Supp.2d 882, 973 (Coleman).) Proposition 57’s proponents made a similar argument,

pointing out that keeping minors in the juvenile system protects and enhances public

safety, because those “who remain under juvenile court supervision are less likely to

commit new crimes.” (Ballot Pamp., supra, argument in favor of Prop. 57 at p. 58.)

       The Assembly Committee on Public Safety echoed this conclusion in its report on

SB 1391. “When youth are given [the] age-appropriate services and education that are

available in the juvenile justice system, they are less likely to recidivate.” (Assem. Com.

on Public Safety, Rep. on SB 1391, supra, at p. 4.) “Most youth will eventually be

released from prison and in the interest of protecting public safety, we need to ensure

they get the treatment and tools they need to succeed when they return to society.” (Sen.

Com. on Public Safety, Rep. on SB 1391, supra, at p. 4.) SB 1391’s author added that

the practice of transferring 14 and 15 year olds to criminal court “was started in the 90’s,

a time in California history where the state was getting ‘tough on crime,’ but not smart on

crime. Back then, society believed that young people were fully developed at around age

14. Now, research has debunked that myth and cognitive science has proven that


                                             18
children and youth who commit crimes are very capable of change.” (Assem. Com. on

Public Safety, Rep. on SB 1391, at p. 3.)

       SB 1391 can easily be construed to promote public safety and reduce crime, since

it increases the number of youth offenders who will remain in the juvenile justice system

and avoid prison where the chance of recidivism is higher. What’s more, SB 1391 leaves

intact prosecutors’ ability to petition the juvenile court to extend its jurisdiction if

discharging a juvenile offender “would be physically dangerous to the public because of

the person’s mental or physical deficiency, disorder, or abnormality that causes the

person to have serious difficulty controlling his or her dangerous behavior.” (§ 1800,

subd. (a).) This provision recognizes that not every juvenile offender will be successfully

rehabilitated and creates a safety valve for circumstances where an offender remains

dangerous.

       Next, we consider Proposition 57’s goal of limiting prosecutorial charging

discretion by having “a judge, not a prosecutor” making transfer determinations. (Ballot

Pamp., supra, text of Prop. 57, § 2 at p. 141.) The legislative analyst described the

initiative’s procedural safeguard against prosecutorial discretion: “the only way a youth

could be tried in adult court is if the juvenile court judge in the hearing decides to transfer

the youth to adult court . . . [N]o youth could be tried in adult court based only on the

decision of a prosecutor.” (Ballot Pamp., analysis by the legislative analyst at p. 56.) SB

1391 maintains the transfer hearing requirement and places a further limit on

prosecutorial discretion—it prohibits district attorneys from even requesting to transfer


                                               19
14 and 15 year olds to criminal court. Both laws evince a re-evaluation of the tough-on-

crime philosophy underlying Proposition 21 and a desire to return California’s treatment

of youth offenders to where it had been before that initiative. Proposition 57 repealed the

practice of direct filing and re-established the former rule that all minors are entitled to a

judicial determination of unfitness before they can be transferred to criminal court. SB

1391 continues in the same direction of youth justice reform, resetting the minimum

transfer age to 16, where it had been for decades before Proposition 21.

       Finally, SB 1391 advances Proposition 57’s goal of reducing prison overcrowding,

in response to a 2009 federal court order under the Prison Litigation Reform Act (PLRA).

(Coleman, supra, 922 F.Supp.2d at p. 962; see Ballot Pamp., supra, text of Prop. 57 at

p. 141 [identifying a purpose of “prevent[ing] federal courts from indiscriminately

releasing prisoners”].) In Coleman, two federal district courts concluded that decades of

“[t]ough-on-crime politics have increased the population of California’s prisons

dramatically while making necessary reforms impossible,” turning our prisons into

“places ‘of extreme peril to the safety of persons’ they house.” (Coleman, at p. 887.)

Recognizing that population reduction orders are a remedy of “last resort” under the

PLRA, the district courts found the remedy necessary because the overcrowding in our

prisons had reached a “breaking point.” (Id. at pp. 950, 1003.) The courts ordered

California to “reduce the prisoner population to 137.5% of [each prison’s] total design

capacity” and retained jurisdiction to ensure compliance with the order. (Id. at pp. 962,

964.) The courts concluded that our compliance with the order would, among other


                                              20
benefits, enhance public safety “by reducing the criminogenic aspects of [our] prisons.”

(Id. at p. 971.) In approving Proposition 57, the voters recognized that a check on

prosecutorial charging discretion could, in addition to the other benefits just discussed,

also help California comply with the PLRA and population reduction order. SB 1391

provides additional aid in this endeavor by keeping an entire category of offenders out of

prison.

          These are Proposition 57’s five express goals, and SB 1391 plainly advances all of

them. (See Chemerinsky, Prosecutors’ attack on youth justice reform undermines

democracy, The Sacramento Bee (Feb. 10, 2019)

<https://www.sacbee.com/opinion/california-forum/article225921805.html> [observing

the “obvious synergy” between the two laws—“a law that keeps children out of adult

court furthers [Proposition 57’s] twin goals of reducing prison spending and giving youth

more opportunity for rehabilitation”].) Despite this clear consistency, respondent, the

Riverside County District Attorney, and our dissenting colleague would strike SB 1391

down because it eliminates prosecutors’ ability to request transfers of 14 and 15 year

olds. Respondent interpreted Proposition 57’s intent as allowing “14- and 15-year-olds

[to] be prosecuted for [serious crimes] in the adult court upon motion of the People and

granting of that motion by the courts.” As the District Attorney articulates the same

argument, SB 1391 is necessarily inconsistent with Proposition 57 because it “took out

the very ability to prosecute 14 and 15-year old minors that [Proposition 57] put into the

. . . Welfare and Institutions Code.” In fact, the transfer hearing requirement is not


                                              21
something Proposition 57 added to the Welfare and Institutions Code. Transfer hearings

were the norm until Proposition 21. Proposition 57 simply returned California to its

historical practice of making them a prerequisite to all transfers.

       In interpreting Proposition 57’s overarching purpose as confined to its transfer

hearing provision, respondent, the District Attorney, and our dissenting colleague take an

initiative clearly intended to limit prosecutorial power, increase rehabilitative

opportunities for youth, and reduce prison spending, and recharacterize it as a law

concerned with effectuating the transfer of juveniles to criminal court. We disagree with

that characterization. Proposition 57’s plain language and historical context reveal the

juvenile offender provisions are intended to effect rehabilitation-based reform. Our

conclusion finds support in the California Supreme Court’s observation that “‘by its

approval of Proposition 57, . . . the electorate has “expressly determined” that the former

system of direct filing was “too severe.”’” (Lara, supra, 4 Cal.5th at p. 309.) The

purpose of the juvenile offender provisions is to check prosecutorial discretion and

abolish direct filing, not increase the juvenile court’s power to transfer minors to criminal

court. In other words, the transfer hearing requirement is the mechanism by which

Proposition 57 limits prosecutorial charging discretion, it is not the purpose of the

juvenile offender provisions.

       As the court recently explained in People v. Superior Court (Alexander C.) (2019)

34 Cal.App.5th 994 (Alexander C.), the view taken by respondent, the District Attorney,

and the dissent “presumes, incorrectly, that amendments to the provisions of Proposition


                                             22
57 necessarily change the intent of Proposition 57.” (Alexander C., supra, 34

Cal.App.5th at p. 1003.) “Any amendment changes an initiative’s ‘‘“scope or effect . . .,

whether by addition, omission, or substitution of provisions.’”’ [Citation.] But if any

amendment to the provisions of an initiative is considered inconsistent with an initiative’s

intent or purpose, then an initiative such as Proposition 57 could never be amended.

There would be no purpose to having included, as Proposition 57 does, language

expressly allowing legislative amendments that ‘are consistent with and further the

intent’ of the proposition. [Citation.] The District Attorney’s mistake here is to have

defined the intent of the electorate in adopting Proposition 57 at a level so granular as to
                                                                              5
equate that intent with each of the specific provisions in the initiative.”       (Ibid.)

       Next, the District Attorney argues that if we uphold SB 1391, nothing will prevent

the Legislature from eliminating all juvenile transfers in the future. Proposition 57 and

SB 1391 are reforms intended to undo Proposition 21’s more severe juvenile offender

provisions. To accomplish that goal, SB 1391 goes no further than returning the

minimum transfer age to where it was before 1994. Certainly, if the Legislature ever

eliminated transfers for 16 and 17 year olds, that change would bring us into new

territory. But it is not our job to opine on the validity of hypothetical laws, and we

       5  The District Attorney finds it “curious and surprising” the Alexander C. opinion
did not address Gardner v. Schwarzenegger (2009) 178 Cal.App.4th 1366 and
Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th
1354, cases he argues are dispositive because they hold that legislative amendments must
further every purpose of an initiative, and amendments that further only one of multiple
purposes. Given that our colleagues concluded SB 1391 furthered all of Proposition 57’s
purposes, they, like us, would have no occasion to address those cases.

                                              23
decline to decide now whether any future amendment to Proposition 57 would be

consistent with its purposes.

       The District Attorney also argues the Court’s conclusion about the legislative

amendment in Amwest requires us to strike down SB 1391, but we find that case factually

distinguishable. The initiative at issue there (Proposition 103) was a consumer-friendly

reform designed to transform California’s free-market approach to insurance rates to a

regulated approach. In that vein, Proposition 103 imposed two new requirements on

insurance companies—all insurance rates must (i) be approved by the insurance

commissioner and (ii) undergo a 20 percent reduction. (Amwest, supra, 11 Cal.4th at

p. 1259.) Two years later, the Legislature enacted a law that exempted surety insurance

from those two requirements. After reviewing the history of insurance regulation in

California, as well as Proposition 103’s stated purposes and codified provisions, the

Court concluded the legislative amendment was inconsistent with Proposition 103’s

“major purposes” because it exempted surety insurance from the very regulatory system

the initiative established. (Amwest, at pp. 1258-1259.)

       SB 1391 is the mirror image of the amendment in Amwest. Where that

amendment returned a category of insurance to the unregulated, free-market system

Proposition 103 had repealed, SB 1391 does the reverse. It takes Proposition 57’s

protections for youth offenders one step further, by shielding a class of minors from the

criminal justice system. To be analogous to Amwest, SB 1391 would have to subject the

class of minors to the prosecutorial direct filing practices that Proposition 57 repealed.


                                             24
          Finally, we reject the District Attorney’s contention that SB 1391 is invalid

because it unconstitutionally amends Proposition 21, which, unlike Proposition 57, does

not have an allowance provision for amendments consistent with its purpose. “Upon the

passage of Proposition 57, the only provisions in section 707 relating to adult prosecution

of minors under the age of 16 were those added by that voter enactment. All remnants of

Proposition 21 were deleted by passage of Proposition 57. (Compare Voter Information

Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 4.2, pp. 144-145 (2016 Voter Guide)

[striking in their entirety former subds. (c) and (d) of § 707] with Voter Information

Guide, Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 26, pp. 127-129 [amending

former subd. (c) and adding former subd. (d) of § 707 thereby permitting direct adult

prosecution of 14- and 15-year-old minors]; see also J.N. v. Superior Court (2018) 23

Cal.App.5th 706, 710-711, 233 Cal.Rptr.3d 220 [construing Proposition 57 as a rejection

of Proposition 21].)” (People v. Superior Court (K.L.) (2019) 36 Cal.App.5th 529, 534,

fn. 3.)

          The District Attorney has not persuaded us that the voters approved Proposition 57

to create a mechanism to transfer 14 and 15 year olds to criminal court. We take

seriously our duty to ‘“‘“jealously guard”’”’ the electorate’s initiative power (People v.

Kelly (2010) 47 Cal.4th 1008, 1025), but to construe the amendment allowance in

Proposition 57 as respondent and the District Attorney do, would be no allowance at all.

To the contrary, it would unnecessarily and unwisely constrain our lawmakers,

prohibiting them from making well-researched and informed policy decisions based on


                                               25
new scientific research and our changing understanding of criminology and penology. In

other words, it would freeze any effort at youth justice reform in the name of preserving

the integrity of an initiative promoting youth justice reform.

       We have no trouble concluding the voters did not intend such stagnation when

they approved Proposition 57. Given the initiative’s stated goals and historical context,

we think SB 1391 is precisely the type of rehabilitation-based legislation the voters had in

mind when they allowed for future amendments.

                                             III

                                      DISPOSITION

       Let a peremptory writ of mandate issue directing the respondent juvenile court to

(1) vacate its order declaring S.B. 1391 invalid and (2) deny the motion to transfer B.M.

to criminal court. The stay we ordered on March 7, 2019 shall expire upon finality of this

opinion as to this court.

       CERTIFIED FOR PUBLICATION


                                                                 SLOUGH
                                                                                            J.

I concur:


CODRINGTON
                            J.




                                             26
[B.M. v. Superior Court (People), E072265]

       McKINSTER, Acting P.J.

       I respectfully dissent. Three years ago, the voters of the State of California

resoundingly approved the Public Safety and Rehabilitation Act of 2016, more commonly

known as Proposition 57 (Prop. 57).1 Among other things, Prop. 57 amended the

Welfare and Institutions Code so that prosecutors could no longer file criminal charges

against certain 14- and 15-year-old juvenile offenders directly in adult criminal court.

Instead, Prop. 57 requires prosecutors to file a wardship petition in the juvenile court,

then request that the court conduct a “fitness” hearing to determine whether the minor

should stay in juvenile court or be transferred to adult court for criminal prosecution. The

change enacted by Prop. 57 was modest and maintained in place much of the status quo

ante: 14- and 15-year-old juvenile offenders who commit serious felony offenses, and

who are not likely to benefit from rehabilitation and treatment in the juvenile justice

system, are still eligible for transfer to adult criminal court for prosecution. The voters

left open the possibility that the Legislature could amend the changes they made to the

juvenile justice system with Prop. 57, but only if the legislative amendment was

consistent with and furthered the intent of the voters.




       1  The final statewide vote tally for Prop. 57 was 8,790,723 for, and 4,847,354
against. (Cal. Sect. of State, Supp. to Statement of Vote (2016) p. 108, at
<https://elections.cdn.sos.ca.gov/sov/2016-general/ssov/ssov-complete.pdf> [as of Oct. 1,
2019].)



                                              1
       Two years later, the Legislature passed, and the Governor signed into law, Senate

Bill No. 1391 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1012, § 1). That statute once

again amended the portion of the Welfare and Institutions Code that deals with the

transfer of juvenile offenders to adult criminal court. But, whereas Prop. 57 left in place

the ability of the juvenile court to transfer certain 14- and 15-year-old juvenile offenders,

Senate Bill No. 1391 all but eliminated the prosecutor’s ability to even request such a

transfer except for in the extraordinarily rare situation that the minor remains at large and

is not apprehended until after the juvenile court loses jurisdiction.

       The question raised by this original proceeding is simple: Is Senate Bill No. 1391

consistent with Prop. 57 and does it further the intent of the voters who enacted the

initiative? The juvenile court below answered that question “no,” and found Senate Bill

No. 1391 to be unconstitutional in a case where the prosecutor moved to transfer to adult

criminal court a minor who was alleged to have committed special circumstance murder

by arson when she was a mere nine days short of her 16th birthday. The majority reaches

the opposite conclusion and grants the minor’s petition for a writ of mandate directing the

juvenile court to find Senate Bill No. 1391 to be constitutional and effective.

       I disagree with the majority’s interpretation of Prop. 57 and its conclusions about

the intent of the voters who enacted it. Because I conclude Senate Bill No. 1391 is not

consistent with Prop. 57 and does not further the modest goals of the voters vis-à-vis

juvenile justice, I would deny the minor’s petition. Therefore, I must respectfully dissent.



                                              2
                                             I.

       In an April 6, 2018 petition filed in the juvenile court pursuant to Welfare and

Institutions Code section 602, the district attorney alleged petitioner B.M. willfully

murdered her mother when the minor was nine days shy of her 16th birthday. (Pen.

Code, § 187.) The petition also alleged the special circumstance that the murder was

committed during the commission of an arson. (Pen. Code, §§ 190.2, subd. (a)(17)(H),

451, subd. (b).) Because of B.M.’s age and the seriousness of the offense she was

accused of committing, the prosecutor moved the juvenile court to transfer the

proceeding to adult criminal court pursuant to Welfare and Institutions Code section 707

(section 707), arguing B.M. was not amenable to treatment as a juvenile.

       At the time the prosecutor filed his petition and transfer motion, section 707, as

amended by Prop. 57, provided that the prosecutor could move the juvenile court to

transfer 14- and 15-year-old juvenile offenders accused of serious felony offenses,

including murder and arson, to adult criminal court for prosecution. (Former § 707,

subd. (a)(1), as amend. by Prop. 57, Gen. Elec. (Nov. 8, 2016) § 4.2, eff. Nov. 9, 2016;

see id., former § 707, subd. (b)(1)-(2).) The juvenile court was then required to decide

whether the minor should be transferred to adult criminal court after considering certain

criteria, such as the degree of the minor’s criminal sophistication, whether the minor was

amenable to rehabilitation before the expiration of juvenile court jurisdiction, and the

minor’s delinquent history, etc. (Former § 707, subd. (a)(2); see id, subd. (a)(2)(A)-(E).)



                                              3
         While B.M.’s case was pending and before the juvenile court decided the

prosecutor’s transfer motion, the Legislature passed and the Governor signed into law

Senate Bill No. 1391. That law amended section 707 to provide that a prosecutor may

now only move the juvenile court to transfer a 14- or 15-year-old juvenile offender to

adult criminal court if the minor “was not apprehended prior to the end of juvenile court

jurisdiction.” (§ 707, subd. (a)(2), as amend. by Stats. 2018, ch. 1012, § 1, eff. Jan. 1,

2019.)

         Before Senate Bill No. 1391 went into effect, the prosecutor filed a memorandum

of points and authorities in the juvenile court arguing the amendment was ineffective, and

the court should grant the transfer motion. Prop. 57 expressly provided that the changes it

made to section 707 could “be amended so long as such amendments are consistent with

and further the intent of this act by a statute that is passed by a majority vote of the

members of each house of the Legislature and signed by the Governor.” (Prop. 57, § 5;

see Cal. Const., art. II, § 10, subd. (c); People v. Armogeda (2015) 233 Cal.App.4th 428,

434 [“‘When a statute enacted by the initiative process is involved, the Legislature may

amend it only if the voters specifically gave the Legislature that power, and then only

upon whatever conditions the voters attached to the Legislature’s amendatory powers.’”].)




                                               4
The prosecutor argued Senate Bill No. 1391 is not consistent with and does not further the

intent of the voters, as expressed in Prop. 57.2

       In her opposition to the transfer motion, B.M., as represented by the public

defender, argued Senate Bill No. 1391 is consistent with and furthers the aims of Prop. 57

and, therefore, the amendment is effective and prohibits the prosecutor from moving to

transfer her to adult criminal court.

       After hearing arguments from the parties, the juvenile court concluded Senate Bill

No. 1391 is unconstitutional because it conflicts with the express purposes of Prop. 57 as

articulated in the plain language of the initiative. The court stayed proceedings in the

juvenile court and did not rule on the prosecutor’s transfer motion, to permit B.M. to seek

review in this court.

       B.M. then petitioned this court for a writ of mandate, directing the juvenile court

to enter an order concluding Senate Bill No. 1391 is constitutional.




       2  In addressing B.M.’s eligibility for transfer under the pre-Senate Bill No. 1391
version of section 707, the prosecutor echoed the probation department’s conclusion that
B.M. is not an appropriate candidate for treatment as a juvenile. The prosecutor’s
statement of facts, taken from the probation department’s report, indicates the alleged
murder by arson “was not the first time [B.M.] caused a fire at her home. Several months
prior, [B.M.] started a fire, which was ruled accidental.” The fire was started by spraying
insect spray too close to an electrical outlet near the room of an “elderly woman”
(apparently B.M.’s grandmother) who B.M. and her mother were caring for, and the fire
was so severe that the woman had to be rescued, and she received injuries.

                                              5
                                              II.

       To determine whether Senate Bill No. 1391 is consistent with and furthers the

intent of Prop. 57, we must determine what the voters intended when they enacted that

initiative. That is a question of statutory interpretation this court examines de novo.

(People v. Prunty (2015) 62 Cal.4th 59, 71.) “When we interpret an initiative, we apply

the same principles governing statutory construction. We first consider the initiative’s

language, giving the words their ordinary meaning and construing this language in the

context of the statute and initiative as a whole. If the language is not ambiguous, we

presume the voters intended the meaning apparent from that language, and we may not

add to the statute or rewrite it to conform to some assumed intent not apparent from that

language. If the language is ambiguous, courts may consider ballot summaries and

arguments in determining the voters’ intent and understanding of a ballot measure.”

(People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) “In other words, our

‘task is simply to interpret and apply the initiative’s language so as to effectuate the

electorate’s intent.’” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901

(Robert L.).)

       The majority acknowledges the general rules of statutory interpretation applicable

to ballot initiatives. But, the majority then proceeds to discuss the legislative history of

Prop. 57 without expressly finding the language is, in fact, ambiguous. (Maj. opn. ante,

at pp. 14-15.) The relevant portion of Prop. 57 is clear and unambiguous. The initiative

amended section 707, subdivision (a), to reallocate the decisionmaking authority about

                                              6
whether 14-and 15-year-old juvenile offenders should be tried in adult criminal court

from the prosecutor to the juvenile court. Henceforth, prosecutors could no longer

directly file criminal charges against minors in adult criminal court. Instead, they were

required to file a petition in the juvenile court, then request the juvenile court to conduct a

fitness hearing to determine whether the minor should be treated as an adult and

transferred to adult criminal court. (Prop. 57, § 4.2.) That is all Prop. 57 did, period.

       I perceive no ambiguity in Prop. 57 that justifies delving into the legislative

history to discern the voters’ intent because that intent is clearly discernable on the face

of section 707 as amended by the initiative. And, because Senate Bill No. 1391 purports

to amend section 707 to eliminate the prosecutor’s ability to request a fitness hearing

except in the rarest of cases—something Prop. 57 affirmatively granted to prosecutors—I

conclude the amendment is not “consistent with” and does not “further the intent” of the

voters. (Prop. 57, § 5.) Therefore, it cannot stand. And, even if I were to agree with the

majority’s implicit conclusion that Prop. 57 is ambiguous, for the reasons stated, post, I

cannot agree with its conclusion about the voters’ intent.

                                             III.

       If the language of a ballot initiative is ambiguous, “we consider extrinsic evidence

in determining voter intent, including the Legislative Analyst’s analysis and ballot

arguments for and against the initiative.” (Silicon Valley Taxpayers’ Assn. v. Santa Clara

County Open Space Authority (2008) 44 Cal.4th 431, 445.)

       When it enacted Senate Bill No. 1391, the Legislature expressly found “this act is

consistent with and furthers the intent of Proposition 57 . . . .” (Stats. 2018, ch. 1012,

                                              7
§ 3.) Relying on Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, the majority

says we must give that finding “great weight” and uphold it unless it is unreasonable or

arbitrary. (Maj. opn. ante, at p. 6.) I believe the majority reads too much into Amwest.

While discussing “general propositions,” the Amwest court quoted California Housing

Finance Agency v. Elliot (1976) 17 Cal.3d 575 at page 583 (Elliot), as stating,

“‘[L]egislative findings, while not binding on the courts, are given great weight and will

be upheld unless they are found to be unreasonable and arbitrary.’” (Amwest, at p. 1252.)

Elliot, in turn, addressed the “‘public purpose’ exception to the constitutional prohibition

against the gift of public funds” and, in that specific context, stated, “[t]he determination

of whether a particular program serves a public purpose is generally vested in the

Legislature.” (Elliot, at p. 583.) The situation before this court is very different.

Prop. 57 does not require findings of any kind—it mandates that amendments to the

juvenile justice reform it enacted are consistent and further the intent of the voters.

(Prop. 57, § 5.) Therefore, when interpreting Prop. 57, I would not give the Legislature’s

gratuitous finding any greater weight than more salient indicia of the voters’ intent.

       In its discussion, the majority provides an overview of the history of the

prosecution of juvenile offenders in California, and of more recent legislative and judicial

trends at the state and federal level toward keeping juveniles out of adult court. (Maj.

opn. ante, at pp. 7-13.) I assume Prop. 57’s drafters were aware of and influenced by that

trend. But, our Supreme Court “has made it clear that the ‘motive or purpose of the

drafters of a statute is not relevant to its construction, absent reason to conclude that the

body which adopted the statute was aware of that purpose and believed the language of

                                               8
the proposal would accomplish it. [Citations.] The opinion of drafters or legislators who

sponsor an initiative is not relevant since such opinion does not represent the intent of the

electorate and we cannot say with assurance that the voters were aware of the drafters’

intent.’” (Robert L., supra, 30 Cal.4th at p. 904.) Legislative and judicial antecedents

“‘not directly presented to the voters . . . are not relevant to our inquiry.’” (Id. at pp. 904-

905; accord, Delaney v. Superior Court (1990) 50 Cal.3d 785, 801 [history of legislation

related to initiative constitutional amendment “would not provide us with any guidance as

to the voters’ subsequent intent because none of the indicia of the Legislature’s possible

intent (committee analysis and digest and letters from the statute’s author) were before

the voters.”].) The ballot pamphlet for Prop. 57 does not address the history and trends

discussed by the majority, so we must not assume the intent of the voters was influenced

by it.

         The relevant explanatory material for Prop. 57 is found on pages 54 to 59 of the

official ballot pamphlet for the November 8, 2016 election. (Voter Information Guide,

Gen. Elec. (Nov. 8, 2016) pp. 54-59.) The official title and summary prepared by the

Attorney General stated, inter alia, Prop. 57 “[p]rovides [that] juvenile court judges shall

make [a] determination, upon prosecutor motion, whether juveniles age 14 and older

should be prosecuted and sentenced as adults for specified offenses.” (Id., official title

and summary of Prop. 57, p. 54.) The Attorney General also explained that any net

savings to the state and net increases in costs to the counties from the various provisions

of Prop. 57 would “depend on how certain provisions are implemented.” (Ibid.)



                                               9
       In its analysis of Prop. 57, the Legislative Analyst’s Office addressed the

background to the initiative. The Analyst explained that, under certain circumstances,

minors under the age of 18 could be tried in adult court for criminal offenses and

explained how that process worked at the time. (Voter Information Guide, supra,

analysis of Prop. 57, p. 55.) The Analyst stated that, under the then-existing system,

which permitted the prosecutor to directly file charges in adult criminal court against

some minors, less than 600 minors were sent directly to adult court annually and less than

100 more were transferred to adult court after a juvenile court conducted a fitness hearing

and determined adult prosecution was appropriate. (Ibid.)

       The Legislative Analyst further explained that Prop. 57 “changes state law to

require that, before youths can be transferred to adult court, they must have a hearing in

juvenile court to determine whether they should be transferred. As a result, the only way

a youth could be tried in adult court is if the juvenile court in the hearing decides to

transfer the youth to adult court.” (Voter Information Guide, supra, analysis of Prop. 57

at p. 56.) “As a result of these provisions,” the Analyst concluded, “there would be fewer

youths tried in adult court.” (Ibid.) Addressing the fiscal effects of Prop. 57, however,

the Analyst provided a more conservative assessment of the expected savings from the

initiative’s juvenile justice reform. As the Attorney General did in the official title and

summary, the Analyst concluded the net savings to the state would only be realized “[if]

the measure’s transfer hearing requirements result in fewer youths being tried and

convicted in adult court,” and the concomitant net increases in costs to the counties



                                              10
would only be incurred “[if] fewer youths are tried and convicted as adults.” (Id. at p. 57,

italics added.)

       Nothing in the official title and summary, or in the official analysis, supports the

majority’s conclusion that the voters who enacted Prop. 57 intended to effectively

eliminate 14- and 15-year-old juvenile offenders from being eligible for trial in adult

criminal court. This is borne out in the arguments in favor of and against the adoption of

Prop. 57. Reflecting the more modest goals for juvenile justice, the supporters of Prop.

57 stated the initiative “[r]equires judges instead of prosecutors to decide whether minors

should be prosecuted as adults emphasizing rehabilitation for minors in the juvenile

system.” (Voter Information Guide, supra, argument in favor of Prop. 57, p. 58.) In

addition, the supporters argued “minors who remain under juvenile supervision are less

likely to commit new crimes,” and “Prop. 57 focuses on evidence-based rehabilitation

and allows a juvenile court judge to decide whether or not a minor should be prosecuted

as an adult.” (Ibid.) The rebuttal argument focused entirely on the provisions of Prop. 57

that addressed parole and custody credits for adult offenders. (Id., rebuttal to argument in

favor of Prop. 57, p. 58.) Likewise, the argument against Prop. 57 and its rebuttal

focused entirely on how Prop. 57 addressed adult offenders. (Id., argument against

Prop. 57 and rebuttal to argument against Prop. 57, p. 59.)

       If the voters were being asked to change the juvenile justice system to drastically

limit or eliminate the number of 14- and 15-year-old juvenile offenders who could be

tried and convicted in adult criminal court, I would expect to see an argument for and



                                             11
against that result. But that dog did not bark.3 Although “ballot arguments are subject to

word limits” and “cannot cover all situations where a measure might apply,” “total

silence on a subject can indeed be indicative of an absence of intent to affect that

subject.” (Citizens Assn., supra, 209 Cal.App.4th at p. 1197, fn. 19.) As the Supreme

Court said in Penziner v. West American Finance Co. (1937) 10 Cal.2d 160 about the

possible implied repeal of an earlier usury statute by a later constitutional amendment, “It

is quite significant that in the argument in support of the amendment sent to all voters

(there was no argument contra), there is not one word indicating an intent to repeal the

usury law. . . . It is quite unlikely that if the [L]egislature in drafting, and the [P]eople in

adopting, the constitutional provision had intended it to repeal the usury law, such intent

would not have been clearly expressed.” (Penziner, at p. 178; see Citizens Assn., supra,

209 Cal.App.4th at p. 1197, fn. 19.) The fact that neither the supporters nor the

opponents of Prop. 57 stated the initiative would effectively eliminate the ability to

prosecute 14- and 15-year-old juvenile offenders in adult criminal court is strong

evidence that the voters who enacted the initiative did not intend it have that effect.




       3  “This lack of comment, like Sherlock Holmes’s ‘dog in the night-time’ which
tellingly failed to bark (2 Doyle, Silver Blaze, in The Annotated Sherlock Holmes
(Baring-Gould ed. 1967) pp. 277, 280), was in itself evidence.” (Gentry v. City of
Murrieta (1995) 36 Cal.App.4th 1359, 1380; accord, Citizens Assn. of Sunset Beach v.
Orange County Local Agency Formation Com. (2012) 209 Cal.App.4th 1182, 1191
(Citizens Assn.) [“Just as the silence of a dog trained to bark at intruders suggests the
absence of intruders, this silence speaks loudly.”].)

                                               12
       To find such an intent on the part of the voters, the majority relies on Prop. 57’s

uncodified statement of purpose and intent, found on page 141 of the ballot pamphlet.

(Voter Information Guide, supra, text of Prop. 57, p. 141; see maj. opn. ante, at p. 14.)

We are, of course, required to presume the voters who enacted Prop. 57 read the actual

text of the proposed law that was printed 82 pages deeper into the pamphlet from the

ballot materials already discussed, ante.4 (See Brosnahan v. Brown (1982) 32 Cal.3d


       4   I have my doubts as to the continuing validity of the presumption that initiative
voters read the actual text of the proposed laws. In a report prepared by the Initiative and
Referendum Task Force of the National Conference of State Legislatures (NCSL), the
authors conclude, “The ballot title and summary are arguably the most important part of
an initiative in terms of voter education. Many voters never read more than the title and
summary of the text of initiative proposals. Therefore, it is of critical importance that
titles and summaries be concise, accurate and impartial.” (NCSL, Initiative and
Referendum in the 21st Century: Final Report and Recommendations of the NCSL I&R
Task Force (July 2002) p. 24, italics added, at <http://www.ncsl.org/Portals/1/documents/
legismgt/irtaskfc/IandR_report.pdf> [as of Oct. 1, 2019].) Academic commentators echo
those findings. “Because voters typically rely on titles, summaries, or information from
people and organizations that support or oppose a proposition, it is easy to gloss over the
particulars, resulting in confusion or misunderstanding.” (Kashani & Stern, Making
California’s Initiative Process More Deliberative (2011) 47 Cal. Western L.Rev. 311,
317.) “Even among citizens who spend an above-average amount of time deliberating
initiatives, the time the voters devote to studying the measures may still not rise to the
level of deliberation at the legislative level.” (Ibid.; see id. at p. 322 [“[T]he level of
meaningful participation in policy making by voters might not be as great as the
representative democracies set up by the Framers and subsequently by the states.”].)
        Other commentators are more pessimistic about voter education, reporting most
voters do not read the ballot pamphlets at all, let alone the text of proposed laws.
(Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Harvard
U. Press 1989) 82 [citing study of surveys conduct in California that reported “‘most
voters do not read the pamphlet or use it as a source of information for decisions on
propositions.’”]; see Pak, The Counter-Majoritarian Difficulty in Focus: Judicial Review
of Initiatives (1999) 32 Colum. J.L. & Soc. Probs. 237, 254, citing Cronin, at p. 82 [“In
California, most voters do not read the pamphlet purporting to explain the initiatives.”].)

                                             13
236, 252.) Even assuming the voters read Prop. 57’s uncodified statement of purpose and

intent, I believe the majority places far too much weight on that statement. “In

considering the purpose of legislation, statements of the intent of the enacting body

contained in a preamble, while not conclusive, are entitled to consideration. [Citations.]

Although such statements in an uncodified section do not confer power, determine rights,

or enlarge the scope of a measure, they properly may be utilized as an aid in construing a

statute.” (People v. Canty (2004) 32 Cal.4th 1266, 1280, italics added; accord, People v.

Valencia (2017) 3 Cal.5th 347, 362.)

       Prop. 57’s statement of purpose and intent provides: “In enacting this act, it is the

purpose and intent of the [P]eople of the State of California to: [¶] 1. Protect and

enhance public safety. [¶] 2. Save money by reducing wasteful spending on prisons. [¶]

3. Prevent federal courts from indiscriminately releasing prisoners. [¶] 4. Stop the

revolving door of crime by emphasizing rehabilitation, especially for juveniles. [¶] [and]

5. Require a judge, not a prosecutor, to decide whether juveniles should be tried in adult

court.” (Prop. 57, § 2.)

       Even giving Prop. 57’s statement of intent and purpose due “consideration”

(People v. Canty, supra, 32 Cal.4th at p. 1280), it does not bear the weight placed upon it

by the majority. The majority emphasizes some of the stated goals, such as saving

money and stopping the revolving prison doors for minors, but glosses over the fact that,

when it comes to minors, Prop. 57 expressly stated it had the modest goal of reallocating

decisionmaking authority about transfers to adult criminal court from the prosecutor to a

juvenile court judge. (Maj. opn. ante, at pp. 14-20.) True enough, eliminating the ability

                                             14
to try and convict minors in adult court would certainly advance the goals of saving the

state money by reducing the state prison population. But as explained, ante, the ballot

pamphlet carefully explained to the voters that any savings to the state from juvenile

justice reform would only be realized if juvenile court judges, after conducting fitness

hearings, transferred less minors to adult court. By necessary implication, the voters

were told it is entirely possible that the same number of minors would be sent to adult

court and no savings to the state would be realized.

       The leading decision interpreting Prop. 57 supports my conclusion that the intent

of the voters was to enact more modest juvenile justice reforms than the majority suggest

they did. In People v. Superior Court (Lara) (2018) 4 Cal.5th 299, the Supreme Court,

applying In re Estrada (1965) 63 Cal.2d 740, concluded Prop. 57 applied retroactively to

nonfinal cases because “[t]he possibility of being treated as a juvenile in juvenile court—

where rehabilitation is the goal—rather than being tried and sentenced as an adult can

result in dramatically different and more lenient treatment.” (Lara, at p. 303, italics

added.) As the majority correctly recognizes, Senate Bill No. 1391 “goes a step beyond

[Prop. 57] and shields an entire class of minors from criminal court,” and it “definitely,

not just potentially, increases the number of juveniles who will remain in the juvenile

justice system and receive rehabilitation-focused services as a consequence of their

offenses.” (Maj. opn. ante, at pp. 15-16, second italics added.) If the intent of the voters

who enacted Prop. 57 was to modestly reform juvenile justice, but to leave in place the

ability to transfer 14- and 15-year-old juvenile offenders to adult criminal court, I simply

cannot agree with the majority that Senate Bill No. 1391 is a consistent amendment

                                             15
because it goes much farther than the voters intended and eliminates the ability to do so.5

                                             V.

       Finally, it appears to me the majority’s interpretation of Prop. 57, and its

conclusion that Senate Bill No. 1391 is consistent with Prop. 57, raises potential

separation of power problems. (Cf. People v. Superior Court (T.D.), supra,

38 Cal.App.5th at p. 378 (dis. opn. of Poochigian, Acting P.J.) [Sen. Bill No. 1391

“effectively prohibits judges from determining whether certain juveniles should be

transferred to criminal court.”].) The courts have long held that, regardless of who may

or may not request a fitness hearing under section 707, “the court, on its own motion,

[may] order a hearing to determine a person’s fitness.” (Green v. Municipal Court (1976)

67 Cal.App.3d 794, 803; accord, In re Richard C. (1994) 24 Cal.App.4th 966, 971, fn. 8

[“the court may entertain such a petition [for a fitness hearing] on its own motion.”]; In re

       5  The majority is correct that nothing in Prop. 57 was meant to effectuate or
increase the number of minors transferred from juvenile court to adult criminal court.
(Maj. opn. ante, at p. 21.) But that is beside the point. The juvenile justice reform
enacted by Prop. 57 maintained much of the status quo by leaving open the possibility
that 14- and 15-year-old juvenile offenders would still be found unfit for juvenile court
treatment and transferred to adult court. It merely changed who gets to make the
decision.
       Although no Court of Appeal majority concludes as I do, I am not alone. (People
v. Superior Court (S.L.) (Sept. 20, 2019, H046598) ___ Cal.App.5th ___ [2019 Cal.App.
Lexis 904, *14-*17] (dis. opn. of Grover, J.); People v. Superior Court (I.R.) (2019) 38
Cal.App.5th 383, 395-398 (dis. opn. of Poochigian, Acting P.J.); People v. Superior
Court (T.D.) (2019) 38 Cal.App.5th 360, 378-382 (dis. opn. of Poochigian, Acting P.J.).)
I express no opinion on the wisdom of the policy choice to all but eliminate the ability to
try 14- and 15-year-old juvenile offenders in adult criminal court. Nor do I find it
necessary to determine, in this proceeding, whether the Legislature has the power to do
so. Assuming it does have that power, however, I do question the wisdom to make such a
change indirectly by the simple artifice of eliminating the ability of the prosecutor to
request a fitness hearing.

                                             16
Rodney F. (1988) 203 Cal.App.3d 177, 186 [“the court retains discretion in such cases.”];

see People v. Davis (1997) 15 Cal.4th 1096, 1105 (dis. opn. of Mosk, J.) [finding of

unfitness for juvenile treatment “may . . . be made by juvenile court ex mero motu.”];

16 Witkin, Summary of Cal. Law (11th ed. 2017) Juvenile Court Law, § 712, p. 921.)

       Nothing on the face of Prop. 57 or Senate Bill No. 1391 purports to eliminate the

juvenile court’s existing authority to conduct a fitness hearing on its own motion and

transfer 14- and 15-year-old juvenile offenders to adult criminal court in appropriate

cases. In the absence of “‘a clear legislative direction to the contrary’” (People v.

Superior Court (Romero) (1996) 13 Cal.4th 497, 518), I would not casually conclude the

voters and Legislature meant to do so. And, although Senate Bill No. 1391 eliminates the

prosecutor’s ability to officially request a fitness hearing for possible transfer to adult

criminal court, I would conclude the prosecutor is not barred from informally inviting the

juvenile court to exercise its discretion and conduct a fitness hearing on its own motion.

(Cf. People v. Carmony (2004) 33 Cal.4th 367, 375-376 [defendants, who are expressly

barred from moving trial court to dismiss strikes under Pen. Code, § 1385, may

informally invite court to exercise its discretion].)

                                              IV.

       Because I conclude Senate Bill No. 1391 is not consistent with and does not

further the intent of the voters who enacted Prop. 57, and it is ineffective, I would deny

B.M.’s petition. Therefore, I must dissent.

                                                                  McKINSTER
                                                                                   Acting P. J.


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