Filed 6/8/17
                             CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                  STATE OF CALIFORNIA



THE PEOPLE,                                   D071461

        Petitioner,
                                              (Super. Ct. No. RIF1201399)
        v.

THE SUPERIOR COURT OF
RIVERSIDE COUNTY,

        Respondent;

JEREMY WALKER,

        Real Party in Interest.


        PETITION for writ of mandate from the Superior Court of Riverside County,

Becky L. Dugan, Judge. Petition granted.

        Michael A. Hestrin, District Attorney, and Donald W. Ostertag, Deputy District

Attorney for Petitioner.

        Bonnie M. Dumanis, District Attorney, Peter J. Cross, Deputy District Attorney,

as Amicus Curiae on behalf of Petitioner.

        No appearance for Respondent.
       Robert J. Booher, under appointment by the Court of Appeal, for Real Party in

Interest.

       California Public Defenders Association, Law Offices of the Public Defender and

Laura B. Arnold, as Amicus Curiae on behalf of Real Party in Interest.

                                               I.

                                      INTRODUCTION

       On November 8, 2016, the voters passed Proposition 57,1 and the new law became

effective the following day. As relevant to this writ proceeding, Proposition 57

eliminated the People's ability to directly file criminal charges against a juvenile

defendant2 in a court of criminal jurisdiction (Adult Court). We must determine whether

Proposition 57 applies to a pending case that the People directly filed in Adult Court

against real party in interest, Jeremy Walker, several years prior to the effective date of

the new law. We conclude that Proposition 57 does not apply to Walker's case and that

the trial court's transfer of Walker's case from Adult Court to the juvenile court (Juvenile

Court) pursuant to the new law was erroneous.3 Accordingly, we grant the People's writ


1       Proposition 57 is officially titled, "The Public Safety and Rehabilitation Act of
2016." (Prop. 57, § 1.)
2       Unless otherwise specified, in referring to a "juvenile defendant," "juvenile," or
"minor," we intend to refer to a person who allegedly committed a crime while under 18
years of age.
3       Juvenile Court and Adult Court are both divisions of the superior court, and thus, a
transfer from one of these courts to the other does not implicate the subject matter
jurisdiction of either court, but rather, "the statutory authority of the particular division of
the superior court, in a given case, to proceed under the juvenile court law or the law
generally applicable in criminal actions." (Manduley v. Superior Court (2002) 27 Cal.4th
537, 548, fn. 3 (Manduley).)
                                               2
petition and direct the trial court to vacate its order transferring Walker's case from Adult

Court to Juvenile Court.

                                             II.

                              PROCEDURAL BACKGROUND

       In February 2012, the People filed a complaint against Walker in Adult Court,

alleging two counts of attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a))

and one count of active participation in a gang (Pen. Code, § 186.22, subd. (a)). With

respect to the attempted murder counts, the People alleged two firearm enhancements

(Pen. Code, § 12022.53, subds. (d), (e)) and a gang enhancement (Pen. Code, § 186.22,

subd. (b)). The record indicates that Walker was 17 years old at the time of the events

giving rise to the charges.

       The People filed the complaint pursuant to former section 707, subdivision (d) of

the Welfare and Institutions Code.4 That statute permitted the direct filing of criminal

charges in Adult Court against a person who was under 18 years of age at the time the

crime was allegedly committed, under certain specified circumstances.

       A jury found Walker guilty as charged. The jury also found the firearm and gang

enhancements true. The trial court sentenced Walker to 80 years to life in prison.

       In May 2015, this court ruled that the trial court erred in admitting certain

evidence at Walker's trial and reversed his convictions. In September 2015, the remittitur




4      Unless otherwise specified, all subsequent statutory references are to the Welfare
and Institutions Code.
                                              3
issued in Walker's appeal. Since the issuance of the remittitur, Walker has been awaiting

retrial.

           On November 8, 2016, the voters passed Proposition 57, which became effective

the following day.

           In late November 2016, Walker filed a motion to transfer his case from Adult

Court to Juvenile Court, in light of Proposition 57. In his motion, Walker argued that

Proposition 57 "applies retroactively to direct file cases which are not yet final."

(Formatting omitted.)

           The People filed an opposition to the motion in which they argued that Proposition

57 did not apply retroactively to cases filed in Adult Court prior to the effective date of

the new law.

           The trial court held a hearing on Walker's motion on December 12, 2016. At the

conclusion of the hearing, the court granted the motion, ruling in relevant part:

              "One side is, it goes to [J]uvenile [C]ourt, because Prop 57 is to be
              broadly construed. It doesn't speak to retroactivity at all, which of
              course is the People's argument, if it doesn't speak to it, that means
              it's prospective.

              "So these cases are going to have to be adjudicated again by
              eventually the Supreme Court, I'm sure, but my order right now is
              I'm going to grant the motion and order it — put it in [J]uvenile
              [C]ourt, because I think that's what the intent of the proposition is."

           The trial court stayed its order to permit the People to seek appellate review.

           That same day, the People filed a petition for writ of mandate/prohibition in the

Court of Appeal, Fourth Appellate District, Division 2. In their petition, the People

requested that the Court of Appeal order the trial court to vacate its order granting

                                                 4
Walker's motion. Three days later, the Administrative Presiding Justice of the Court of

Appeal, Fourth Appellate District, transferred the matter to this court.5

       On December 22, this court issued an order to show cause, directed Walker to file

a return, permitted the People to file a traverse, and stayed all further proceedings in the

trial court. Thereafter, Walker filed a return, the People filed a traverse, and this court

heard argument in the matter.6

                                              III.

                                        DISCUSSION

The trial court's order granting Walker's motion to transfer the case from Adult Court to
 Juvenile Court is premised on an improper retroactive application of Proposition 57

       In their petition, the People argue that this court should order the trial court to

vacate its order granting Walker's motion. In support of this contention, the People argue

that Proposition 57 does not apply retroactively to cases properly filed in Adult Court

prior to the effective date of the proposition, and that the trial court's order transferring

Walker's case to Juvenile Court is premised on an improper retroactive application of the

law.

5      The matter was transferred to this court in light of our prior decision in Walker's
appeal. (See Cal. Rules of Court, rule 10.1000(B)(1)(A) ["If multiple appeals or writ
petitions arise from the same trial court action or proceeding, the presiding justice may
transfer the later appeals or petitions to the division assigned the first appeal or
petition"].)
6      While this writ proceeding was pending, we granted the San Diego County
District Attorney's application to file an amicus brief on behalf of the People. We also
granted an application to file an amicus brief on behalf of Walker filed by the California
Public Defenders Association and the Law Offices of the Public Defender, County of
Riverside. We have considered these amicus briefs, as well as Walker's answer brief to
the San Diego County District Attorney's amicus brief.
                                               5
       Walker contends that Proposition 57 applies retroactively to cases filed in Adult

Court prior to the effective date of the proposition. In the alternative, Walker contends

that the trial court's order constitutes a prospective application of the new law. Walker

also argues that the Adult Court lacks jurisdiction over his case pursuant to a section of

the Welfare and Institutions Code (§ 602) as amended by Proposition 57. Finally, Walker

maintains that to fail to apply Proposition 57 to his case would constitute a denial of

equal protection of the law.

       We first provide a summary of Proposition 57, before considering whether the

proposition may be applied retroactively to cases properly filed in Adult Court before the

effective date of the statute. After concluding that Proposition 57 may not be applied

retroactively, we next consider whether the trial court's order is premised on a

prospective application of the new law. We conclude that the trial court's application of

Proposition 57 to Walker's case constitutes an improper retroactive application of the law.

We further conclude that the Adult Court does not lack jurisdiction over Walker's case

under section 602 and that failing to apply Proposition 57 to Walker's case would not

deny him equal protection of the law.

A. Proposition 57

       1. Summary of Proposition 57

       In People v. Cervantes (2017) 9 Cal.App.5th 569 (Cervantes), review granted May

17, 2017, S241323, the Court of Appeal summarized the state of the law governing the

filing of criminal charges against juveniles prior to the enactment of Proposition 57.



                                             6
          "Historically, California required a judicial determination of
          unfitness for juvenile court before a minor could be prosecuted in
          adult court. [Citations.] Beginning in March 2000 [with the passage
          of Proposition 217] and continuing until the adoption of Proposition
          57, however, the district attorney was authorized, as a matter of
          executive discretion, to file a criminal action against a juvenile in
          certain defined circumstances, rather than filing the case in juvenile
          court, a practice known as 'direct filing' or 'discretionary direct
          filing.' [Citations.] Some crimes . . . were considered so serious by
          the voters that, if committed by a minor age 14 or older, juvenile
          court was not an option; filing in adult criminal court was mandated
          by statute ('mandatory direct filing')." (Cervantes, at pp. 595–596,
          fn. omitted.)

       As noted previously, the electorate adopted Proposition 57 on November 8, 2016,

and it became effective the following day. The proposition eliminated the People's

ability to directly file charges against a juvenile defendant in Adult Court.8 (See

Cervantes, supra, 9 Cal.App.5th at p. 596; People v. Superior Court (Lara) (2017) 9

Cal.App.5th 753, 758 (Lara), review granted May 17, 2017, S241231.) The Cervantes

court summarized Proposition 57 as follows:

          "Proposition 57 was designed to undo Proposition 21. After the
          passage of Proposition 57, the charging instrument for all juvenile
          crimes must be filed in juvenile court. (See Welf. & Inst. Code,
          § 602.) While prosecuting attorneys may move to transfer certain
          categories of cases to criminal court (Welf. & Inst. Code, § 707,
          subd. (a)(1)), they have no authority to directly and independently

7      "Proposition 21, titled the Gang Violence and Juvenile Crime Prevention Act of
1998 and approved by the voters at the March 7, 2000, Primary Election (Proposition 21),
made a number of changes to laws applicable to minors accused of committing criminal
offenses." (Manduley, supra, 27 Cal.4th at pp. 544–545.)
8      In addition to the juvenile defendant provisions and several uncodified sections,
Proposition 57 also amended Article 1, section 32 of the California Constitution
governing the consideration of parole and the earning of behavior credits in state prison.
Unless otherwise specified, in referring to Proposition 57, we refer to the juvenile
defendant provisions and the uncodified sections of the proposition.
                                             7
         file a criminal complaint against someone who broke the law as a
         juvenile, even by committing the crimes that previously qualified for
         mandatory direct filing. In cases where transfer to adult court is
         authorized (§ 707, subd. (b)) (and not all cases qualify), the juvenile
         court now has sole authority to determine whether the minor should
         be transferred. (Welf. & Inst. Code, § 707, subd. (a)(2); see Brown
         v. Superior Court (2016) 63 Cal.4th 335, 340–341 . . . [describing
         history and general provisions of the initiative measure].) Thus,
         Proposition 57 effectively guarantees a juvenile accused felon a right
         to a fitness hearing before he or she may be sent to the criminal
         division for prosecution as an adult." (Cervantes, at pp. 596–597, fn.
         omitted.)

      2. Proposition 57's amendments of sections 602 and 707

      As suggested by the Cervantes court's summary, Proposition 57 amended sections

602 and 707. As amended by Proposition 57, section 602 provides:

         "Except as provided in Section 707, any person who is under 18
         years of age 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 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."9

      As amended by Proposition 57, section 707, subdivision (a)(1) provides:



9     Prior to the adoption of Proposition 57, former section 602 provided:
         "(a) Except as provided in subdivision (b), any person who is under
         18 years of age 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 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.
         "(b) 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:
         [certain special circumstances murders and various specified sex
         offenses]."
                                            8
          "(a)(1) In any case in which a minor is alleged to be a person
          described in Section 602 by reason of the violation, when he or she
          was 16 years of age or older, of any felony criminal statute, or of an
          offense listed in subdivision (b) when he or she was 14 or 15 years
          of age, the district attorney or other appropriate prosecuting officer
          may make a motion to transfer the minor from juvenile court to a
          court of criminal jurisdiction. The motion must be made prior to the
          attachment of jeopardy. Upon such motion, the juvenile court shall
          order the probation officer to submit a report on the behavioral
          patterns and social history of the minor. The report shall include any
          written or oral statement offered by the victim pursuant to Section
          656.2.[10]"

       Proposition 57 also added section 707, subdivision (a)(2), which specifies certain

criteria that the Juvenile Court shall consider in "decid[ing] whether the minor should be

transferred to a court of criminal jurisdiction [(i.e., Adult Court)]." (§ 707, subd.

(a)(2).)11 The criteria include the degree of criminal sophistication exhibited by the

minor (§ 707, subd. (a)(2)(A)(i)), the minor's prospects for timely rehabilitation (§ 707,

subd. (a)(2)(B)(i)), the minor's history of delinquency (§ 707, subd. (a)(2)(C)(i)), the

success of prior attempts by the Juvenile Court to rehabilitate the minor (§ 707, subd.


10     Section 656.2 specifies certain rights of the victims of crimes allegedly committed
by juvenile defendants.
11     Section 707, subdivision (a)(2) provides in relevant part:
          "Following submission and consideration of the report, and of any
          other relevant evidence that the petitioner or the minor may wish to
          submit, the juvenile court shall decide whether the minor should be
          transferred to a court of criminal jurisdiction. In making its decision,
          the court shall consider the criteria specified in subparagraphs (A) to
          (E). If the court orders a transfer of jurisdiction, the court shall
          recite the basis for its decision in an order entered upon the minutes.
          In any case in which a hearing has been noticed pursuant to this
          section, the court shall postpone the taking of a plea to the petition
          until the conclusion of the transfer hearing, and no plea that may
          have been entered already shall constitute evidence at the hearing."
                                              9
(a)(2)(D)(i)), and the circumstances and gravity of the commitment offense (§ 707, subd.

(a)(2)(E)(i)).

       Proposition 57 also amended section 707, subdivision (b) to state as follows:

           "Subdivision (a) shall be applicable in any case in which a minor is
           alleged to be a person described in Section 602 by reason of the
           violation of one of the following offenses when he or she was 14 or
           15 years of age: [list of numerous offenses including attempted
           murder]."

       Finally, and importantly for this case, Proposition 57 repealed former section 707,

subdivision (d), which permitted the People to directly file criminal charges against

minors in Adult Court under certain specified circumstances. As applicable to this case,

former section 707, subdivision (d)(1) provided in relevant part:

           "[T]he district attorney or other appropriate prosecuting officer may
           file an accusatory pleading in a court of criminal jurisdiction against
           any minor 16 years of age or older who is accused of committing an
           offense enumerated in subdivision (b).[12]"

       Proposition 57 also eliminated various presumptions to be applied by the Juvenile

Court in determining whether a minor is "a fit and proper subject to be dealt with under

the juvenile court law," (former § 707, subd. (c)) by amending section 707, subdivision

(a)(2) and repealing former section 707, subdivision (c).

       3. Proposition 57's uncodified sections

       Proposition 57 contains a number of uncodified sections, three of which Walker

cites in his brief. Section 2 of Proposition 57 provides in relevant part:



12     As does section 707, subdivision (b), as amended by Proposition 57, former
section 707, subdivision (b) included attempted murder as among the listed offenses.
                                             10
          "Purpose and Intent.

          "In enacting this act, it is the purpose and intent of the people of the
          State of California to:

          "[¶] . . . [¶]

          "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."

       Section 5 of Proposition 57 provides, "Amendment. This act shall be broadly

construed to accomplish its purposes. The provisions of Sections 4.1 and 4.2 of this

act[13] may 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."

       Finally, section 9 provides, "Liberal Construction. This act shall be liberally

construed to effectuate its purposes."

       4. The distinctions between the prosecution of offenses in Adult Court and in
          Juvenile Court

       "Significant differences between the juvenile and adult offender laws underscore

their different goals: The former seeks to rehabilitate, while the latter seeks to punish."

(In re Julian R. (2009) 47 Cal.4th 487, 496.) The court in People v. Vela (2017) 11

Cal.App.5th 68 (Vela) outlined some of these differences:




13    The amendments to sections 602 and 707 are contained in Section 4.1 and 4.2 of
Proposition 57.
                                             11
          "A prosecutor charges a minor with an offense by filing a juvenile
          petition, rather than a criminal complaint. [Citations.] Minors
          'admit' or 'deny' an offense, rather than plead 'guilty' or 'not guilty.'
          [Citation.] There are no 'trials,' per se, in juvenile court, rather there
          is a 'jurisdictional hearing' presided over by a juvenile court judge.
          [Citation.] The jurisdictional hearing is equivalent to a 'bench trial'
          in a criminal court. [Citation.] Although a juvenile court judge
          adjudicates alleged law violations, there are no 'conviction[s]' in
          juvenile court. [Citation.] Rather, the juvenile court determines—
          under the familiar beyond the reasonable doubt standard and under
          the ordinary rules of evidence—whether the allegations are 'true' and
          if the minor comes within its jurisdiction. [Citation.]

          "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. [Citations.] 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. [Citation.] 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. [Citation.] A minor
          committed to DJJ must generally be discharged no later than 23
          years of age." (Id. at pp. 73–74.)

B. The electorate did not intend for Proposition 57 to apply retroactively

      The People contend that the electorate did not intend for Proposition 57 to apply

retroactively. "Whether the voters intended Proposition 57 to apply retroactively is a

question of law to which we apply our independent judgment." (People v. Mendoza

(2017) 10 Cal.App.5th 327, 344 (Mendoza).)

      1. Principles governing the interpretation of a voter initiative

      "When interpreting a voter initiative, we apply the same rules that govern statutory

construction. We first look to the language of the enactment, giving the words their

                                             12
ordinary meaning. If the law is ambiguous, we refer to other sources of voter intent,

including the arguments and analyses contained in the official voter information guide."

(Mendoza, supra, 10 Cal.App.5th at p. 344.)

       2. The presumption in favor of the prospective application of statutes

       "It is well settled that a new statute is presumed to operate prospectively absent an

express declaration of retrospectivity or a clear indication that the electorate, or the

Legislature, intended otherwise." (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287

(Tapia).)14 "The presumption of prospectivity assures that reasonable reliance on

current legal principles will not be defeated in the absence of a clear indication of a

legislative intent to override such reliance." (Evangelatos v. Superior Court (1988) 44

Cal.3d 1188, 1214 (Evangelatos).)

       The Supreme Court reaffirmed this principle in People v. Brown (2012) 54 Cal.4th

314, 319–320 (Brown) by referring to " 'the time-honored principle . . . that in the

absence of an express retroactivity provision, a statute will not be applied retroactively

unless it is very clear from extrinsic sources that the [enacting body] . . . must have

intended a retroactive application.' " The Brown court explained further that, "[i]n

applying this principle, [the California Supreme Court has] been cautious not to infer



14     While certain codes statutorily codify this principle (see, e.g., Pen. Code, § 3,
Code Civ. Proc., § 3), the Supreme Court has made clear that language in these codes
merely "codif[ies] a general rule of construction" (Stenger v. Anderson (1967) 66 Cal.2d
970, 977, fn. 13), and thus, the presumption in favor of prospective application applies
with respect to the interpretation of statutes generally. (See ibid. [applying rule of
prospective application to provision in Welfare and Institutions Code].)

                                              13
retroactive intent from vague phrases and broad, general language in statutes." (Id. at p.

319.) In short, " ' "a statute that is ambiguous with respect to retroactive application is

construed . . . to be unambiguously prospective." ' " (Id. at p. 320.)

         3. Neither the text nor the ballot materials establish that the electorate intended
            for Proposition 57 to be applied retroactively

         The People argue that "there is nothing in either the text of Proposition 57, or the

ballot materials submitted to the voters, that demonstrates an intent for the juvenile

portions of the law to apply retroactively to cases that have already been filed." We

agree.

         The Mendoza court reviewed the text of Proposition 57 and concluded, "The text

of Proposition 57 contains no express statement of intent regarding prospective or

retroactive application." (Mendoza, supra, 10 Cal.App.5th at p. 344.) Our review of the

text of the proposition leads us to the same conclusion.

         Walker contends that we may infer the electorate's intent to apply Proposition 57

retroactively given the enumeration in section 2 of the stated purposes for the law (i.e., to

"[s]top the revolving door of crime by emphasizing rehabilitation, especially for

juveniles," and to "[r]equire a judge, not a prosecutor, to decide whether juveniles should

be tried in adult court") (Prop. 57, § 2) as well as the statement in section 5 that the act

"shall be broadly construed to accomplish its purposes." (Prop. 57, § 5.) We disagree.

Both statements fall far short of the clear indication of retroactivity required under




                                               14
California law. (See Brown, supra, 54 Cal.4th at p. 319.)15 To apply Proposition 57

retroactively based on these statements would amount to improperly inferring

"retroactive intent from vague phrases and broad, general language . . . ." (Brown, at p.

319.)

        Walker also contends that the following statement in the Legislative Analyst's

analysis of Proposition 57 supports the conclusion that the electorate intended for the

proposition to apply retroactively:

           "The measure 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
           judge in the hearing decides to transfer the youth to adult court."
           (Voter Guide, supra, analysis of Prop. 57 by Legis. Analyst, p. 56,
           italics added in Walker's brief.)

        This statement merely describes the effect of changes in the law wrought by

Proposition 57, and says nothing about whether those changes are to apply retroactively.

For the same reason, we are unpersuaded by Walker's contention that the electorate's

intent to apply the law retroactively is demonstrated by the Legislative Analyst's

reference to potential costs savings premised on youths spending less time in prison and

on parole as a result of the proposition. (See Voter Guide, supra, at p. 57.) This analysis



15     California voters are familiar with text that expresses an intent to have a law apply
retroactively. At the same election at which voters adopted Proposition 57, they also
voted on Proposition 62, the text of which states: "SEC. 10. Retroactive Application of
Act. (a) In order to best achieve the purpose of this act . . . and to achieve fairness,
equality, and uniformity in sentencing, this act shall be applied retroactively." (Voter
Information Guide, Gen. Elec. (Nov. 8, 2016) (hereafter "Voter Guide") text of Prop. 62,
p. 163.)
                                             15
reflects the Legislative Analyst's prediction with respect to the cost savings related to the

implementation of the law generally. Nothing in the analysis suggests that the savings

predicted—which was estimated to be "a few million dollars annually" (Voter Guide,

supra, at p. 57)—was in any way based on the proposition being applied retroactively.16

       We also are unpersuaded by Walker's contention that Proposition 57 may be

applied retroactively because "[n]othing in the language of the measure or the Legislative

Analyst's treatment of the measure suggested an intention to limit the applicability to

those whose cases have been filed or who were at any specific stage of the proceedings."

In light of the well-established presumption in favor of the prospective application of

statutes (e.g., Tapia, supra, 53 Cal.3d at p. 287), the absence of language in Proposition

57 reflecting an intent to apply the proposition prospectively does not demonstrate that

the voters intended for the law to be applied retroactively.

       In sum, "the voters did not make their intent clear regarding retroactive application

in the text of Proposition 57 nor can we clearly discern their intent from the voter

information guide." (Mendoza, supra, 10 Cal.App.5th at p. 345.) Accordingly, we must

apply Proposition 57 prospectively, unless an exception to the presumption in favor or

prospective application applies. (Mendoza, at p. 345; see People v. Marquez (2017)



16      Even assuming that there was evidence that the Legislative Analyst's prediction
was based on a retroactive application of Proposition 57, this would not demonstrate a
clear intent of the electorate to have the proposition apply retroactively. (See California
Comp. & Fire Co. v. State Bd. of Equalization (1982) 132 Cal.App.3d 25, 29 [rejecting as
"totally unpersuasive" the argument that a law should be applied retroactively because the
Legislative Analyst's revenue projection was based on retroactive application of the
law].)
                                             16
___ Cal.App.5th ___ [2017 Cal.App. Lexis 440, *5–7] [concluding Proposition 57 is

silent on retroactivity] (Marquez).) We consider that issue below.

       4. The Estrada qualification to the presumption of prospective application does
          not apply

              a. Estrada and its progeny

       In Mendoza, supra, 10 Cal.App.5th 327, the Court of Appeal summarized a

qualification to the ordinary presumption of prospective application of statutes that the

Supreme Court first developed in In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada):

           "Even in the absence of voter intent to apply a proposition
           retroactively, the Estrada rule provides a 'contextually specific
           qualification to the ordinary presumption' of prospective application.
           (Brown, supra, 54 Cal.4th at p. 323, citing Estrada, supra, 63 Cal.2d
           740.) When the electorate (or Legislature) amends 'a statute to
           reduce the punishment for a particular criminal offense,' the Estrada
           rule provides an inference that the voters 'intended the amended
           statute to apply to all defendants whose judgments are not yet final
           on the statute's operative date.' (Brown, at p. 323.) That conclusion
           is based on the 'premise that " '[a] legislative mitigation of the
           penalty for a particular crime represents a legislative judgment that
           the lesser penalty or the different treatment is sufficient to meet the
           legitimate ends of the criminal law.' " ' (Ibid., quoting Estrada, at p.
           745, italics added by Brown.)" (Mendoza, at p. 346, italics
           added.)17

       The Supreme Court has subsequently emphasized that Estrada "is today properly

understood, not as weakening or modifying the default rule of prospective operation . . .


17     Courts have relied on Estrada in concluding that a change in the law that entirely
decriminalizes conduct or provides a defendant with a new defense to an offense applies
retroactively to cases that are not yet final, absent indicia of a contrary intent in the law.
(See e.g., People v. Rossi (1976) 18 Cal.3d 295, 299–302 (Rossi) ["the common law
principles reiterated in Estrada apply a fortiori when criminal sanctions have been
completely repealed before a criminal conviction becomes final"]; People v. Wright
(2006) 40 Cal.4th 81, 94–95 (Wright) [discussing Rossi and cases following Rossi].)
                                              17
but rather as informing the rule's application in a specific context by articulating the

reasonable presumption that a legislative act mitigating the punishment for a particular

criminal offense is intended to apply to all nonfinal judgments." (Brown, supra, 54

Cal.4th at p. 324.) The Brown court explained that "the rule and logic of Estrada" (id. at

p. 325) is that a retroactive application of a statute mitigating the penalty for a particular

crime is supported by the "inference that the Legislature would prefer to impose the new,

shorter penalty rather than to ' "satisfy a desire for vengeance." ' " (Ibid., quoting

Estrada, supra, 63 Cal.2d at p. 745.) As the Brown court explained:

           " ' "Nothing is to be gained," ' we reasoned [in Estrada], ' "by
           imposing the more severe penalty after such a pronouncement . . .
           other than to satisfy a desire for vengeance" ' [Estrada, supra, at p.
           745]—a motive we were unwilling to attribute to the Legislature.
           On this basis we concluded the inference was 'inevitable . . . that the
           Legislature must have intended that the new statute imposing the
           new lighter penalty now deemed to be sufficient should apply to
           every case to which it constitutionally could apply.' (Ibid.)"
           (Brown, at p. 323.)

       However, the Supreme Court has concluded that for statutes for which it can be

said that the enacting body may have had a legitimate motive for applying the statute

prospectively, the "inevitable" inference of retroactive intent referred to in Estrada

(Estrada, supra, 63 Cal.2d at p. 745) does not apply, even where the statute has a clear

ameliorative effect. For example, in Brown, the Supreme Court concluded that a statute

that temporarily increased the rate at which inmates could earn presentence conduct

credits did not apply retroactively. (Brown, supra, 54 Cal.4th at pp. 317–318.) While

acknowledging that a "prisoner who is released a day early is punished a day less" (id. at

p. 325), the Brown court reasoned that the Legislature may have reasonably believed that

                                              18
"a law that rewards good behavior in prison," (ibid.) should only be applied prospectively

because "it is impossible to influence behavior after it has occurred." (Id. at p. 327.)

Thus, the Brown court concluded that the "logic of Estrada" (id. at p. 325) did not

support a retroactive application.

       Similarly, in People v. Conley (2016) 63 Cal.4th 646 (Conley), the Supreme Court

concluded that the Three Strikes Reform Act (Reform Act) could not be applied

retroactively pursuant to Estrada so as to mandate "automatic resentencing for third

strike defendants serving nonfinal sentences imposed under the former version of the

Three Strikes law." (Conley, at p. 657.) The Supreme Court explained that,

notwithstanding that there could "be no doubt that the Reform Act was motivated in large

measure by a determination that sentences under the prior version of the Three Strikes

law were excessive," (id. at p. 658) the "presumption about legislative intent," (id. at p.

656) reflected in Estrada did not apply. In support of this conclusion, the Conley court

noted that the Reform Act did not merely reduce penalties, as in Estrada. (Conley, at p.

659.) Rather, the Reform Act also contained a "new set of disqualifying factors that

preclude a third strike defendant from receiving a second strike sentence" (Conley, at p.

659); thus, as the Conley court explained, an "application of the Reform Act's revised

sentencing scheme would not be so simple as mechanically substituting a second strike

sentence for a previously imposed indeterminate life term." (Id. at p. 660.) Under these

circumstances, the Conley court refused to apply Estrada because it could not say with

"confidence, as [it] did in Estrada, that the enacting body lacked any discernible reason



                                             19
to limit application of the law with respect to cases pending on direct review." (Id. at pp.

658–659.)

              b. Estrada does not support a retroactive application of Proposition 57

       Five decisions of the Courts of Appeal have considered whether Estrada applies

with respect to Proposition 57. (Mendoza, supra, 10 Cal.App.5th at pp. 345–349; Lara,

supra, 9 Cal.App.5th at p. 774; Cervantes, supra, 9 Cal.App.5th at pp. 600–602; Vela,

supra, 11 Cal.App.5th at pp. 76–81; Marquez, supra, ___ Cal.App.5th at pp. ___ [2017

Cal.App. Lexis 440, *9–17].) In four of these cases, the courts have concluded that

Estrada does not apply. (Mendoza, at pp. 346–349; Lara, at p. 774;18 Cervantes, at p.

601; Marquez, at p. ___ [2017 Cal.App. Lexis 440, *17]; but see Vela, at p. 78 [stating

"we find an 'inevitable inference' that the electorate 'must have intended' that the potential

'ameliorating benefits' of rehabilitation (rather than punishment), which now extend to

every eligible minor, must now also 'apply to every case to which it constitutionally could

apply,' " quoting Estrada, supra, 63 Cal.2d at pp. 744–745].) We agree with the

conclusions of the courts in Mendoza, Lara, and Cervantes. Most fundamentally,

Estrada does not apply because "Proposition 57 does not mitigate the penalty for a

particular crime." (Mendoza, at p. 347; Cervantes, at p. 600; see Brown, supra, 54



18      The Lara court's conclusion on this issue is not entirely clear. The Lara court
stated, "We also agree with the petition that [Estrada, supra, 63 Cal.2d 740], the case that
spawned a well-known exception to the default rule of prospectivity, does not apply
here." (Lara, supra, 9 Cal.App.5th at p. 774, italics added.) However, the Lara court
then stated, "Real party in interest does not argue that, and we therefore do not consider,
whether Proposition 57 amounts to a legislative reduction in the punishment for a crime."
(Ibid., italics added.)
                                             20
Cal.4th at p. 324 [Estrada applies to changes in the law "mitigating the punishment for a

particular criminal offense" (italics added)].)19

       Further, the logic of Estrada does not support a retroactive application of

Proposition 57. (See Cervantes, supra, 9 Cal.App.5th at p. 601.) As the Cervantes court

explained, "We find the rationale underlying Estrada . . . inapplicable to the procedural

changes implemented by Proposition 57. While Proposition 57 will have a substantive

impact on time in custody in some cases—sometimes a big impact—the transfer

procedure required under . . . section 707 does not resemble the clear-cut reduction in

penalty involved in Estrada." (Ibid.)

       To the Cervantes court's observations, we would add that, much like the statutes at

issue and Brown and Conley, we cannot say with any confidence that the voters clearly

would have intended the "fundamental policy shift," (Cervantes, supra, 9 Cal.App.5th at

p. 605) brought about by the enactment of Proposition 57 to be applied to cases filed in

Adult Court prior to the proposition's effective date. That is because, as with the

statutory scheme at issue in Conley, applying Proposition 57 to such cases would require

much more than simply substituting in a more lenient sentence upon a defendant's

conviction. (See Conley, supra, 63 Cal.4th at p. 660.)


19     Nor can it be said that Proposition 57 is "akin to a defense to criminal charges," as
Walker argues in his brief. (Boldface & capitalization omitted.) The statutory changes to
sections 602 and 707 summarized in part III.A.2, ante, pertain to in which division of the
superior court criminal charges against a juvenile may be filed and which law will be
applied upon such filings. These amendments bear no resemblance to statutory changes
that provide a complete defense to previously criminal conduct, which Estrada's progeny
have ruled are presumptively retroactive. (See, e.g., Wright, supra, 40 Cal.4th at pp. 94–
95.)
                                             21
       For example, in Vela, supra, 11 Cal.App.5th 68, prior to the effective date of

Proposition 57, the People charged a juvenile defendant in Adult Court and a jury found

the defendant guilty of several crimes, including murder. (Vela, at p. 71.) While the

defendant's case was pending on appeal, Proposition 57 became effective. (Vela, at p.

72.) The Vela court concluded that Estrada applied and that Proposition 57 applied

retroactively to defendant's case. (Vela, at p. 72.) Accordingly, the Vela court was

tasked with determining "what should happen with [defendant's] judgment." (Id. at p.

81.) The defendant argued that his convictions should be reversed. (Ibid.) The Vela

court disagreed, reasoning: "The jury's convictions, as well as its true findings as to the

sentencing enhancements, will remain in place. Nothing is to be gained by having a

'dispositional hearing,' or effectively a second trial, in the juvenile court." (Ibid.) After

rejecting the People's argument that the failure to provide a transfer hearing constituted

harmless error, the Vela court stated that it would "seek to strike a middle ground."

(Ibid.) Accordingly, the Vela court conditionally reversed the judgment of the Adult

Court and remanded the matter to the Juvenile Court with directions to hold a transfer

hearing. (Id. at p. 82.)

       The Vela court explained that "[w]hen conducting the transfer hearing, the

[J]uvenile [C]ourt shall, to the extent possible, treat the matter as though the prosecutor

had originally filed a juvenile petition in [J]uvenile [C]ourt and had then moved to

transfer Vela's cause to [Adult Court]." (Vela, supra, 11 Cal.App.5th at p. 82.) The court

further directed that the Adult Court judgment would be reinstated if "the [J]uvenile

[C]ourt determines that it would have transferred [defendant] to [Adult Court]." (Ibid.)

                                              22
On the other hand, the Vela court concluded that "[if] the [J]uvenile [C]ourt determines

that it would not have transferred [defendant] to [Adult Court], then [defendant's]

criminal convictions and enhancements will be deemed to be juvenile adjudications as of

that date." (Id. at pp. 82–83.) The competing arguments at play in Vela and that court's

selection of the "middle ground" (id. at p. 81) demonstrate that, contrary to the

straightforward sentence reduction that may be implemented where Estrada properly may

be applied (Conley, supra, 63 Cal.4th at p. 660), applying Proposition 57 to cases

pending in Adult Court or on appeal would, in many cases, be procedurally complex.20

       Thus, we are unpersuaded by the Vela court's contention that in order not to

provide retroactive effect to Proposition 57 "we would have to conclude that the

electorate was motivated 'by a desire for vengeance' against [the defendant] and similarly

situated minors." (Vela, supra, 11 Cal.App.5th at p. 78.) On the contrary, clearly a voter

who agreed with Proposition 57's policy changes could also reasonably intend, for any

number of reasons other than "vengeance" (Estrada, supra, 63 Cal.2d at p. 745), that the

change in the law not apply to such defendants. For example, as the Mendoza court

observed, such a voter might reasonably believe that judicial economy would not be best

served by transferring a case from Adult Court to Juvenile Court after proceedings in

Adult Court have already commenced. (See Mendoza, supra, 10 Cal.App.5th at pp. 351–

352 ["The voters could rationally conclude that applying Proposition 57 prospectively



20    One need only read the disposition in Cervantes, see footnote 32, post, to
appreciate the complexity of attempting to apply Proposition 57 to cases that were filed in
Adult Court prior to its enactment.
                                             23
would serve the legitimate purpose of not overwhelming the juvenile courts with requests

for fitness hearings by those who had already been convicted in adult court for crimes

committed as juveniles"].) Thus, a voter might reasonably intend for the new law not to

be applied to cases filed in Adult Court prior to the effective date of the proposition in

order to avoid the procedural difficulties created by such an application. Plainly, such a

voter would not be acting out of "vengeance." (Estrada, at p. 745.) In short, both the

procedural difficulties with respect to how to apply Proposition 57 retroactively, as well

as the existence of a legitimate motive that voters may have had for intending that the

proposition apply only prospectively, support our conclusion that Estrada does not

require a retroactive application of the new law. (See Conley, supra, 63 Cal.4th at pp.

658–660.)

       Accordingly, we conclude that Estrada and its progeny do not support the

conclusion that Proposition 57 should be applied retroactively to Walker's case.

C. Applying Proposition 57 to Walker's case constitutes an improper retroactive
   application of the law

       Having concluded that Proposition 57 may not be applied retroactively (see pt.

III.B, ante), we must consider whether the trial court's order is proper on the ground that

it is premised on a prospective application of Proposition 57.21 Walker contends that the

trial court properly applied Proposition 57 to his case because applying the proposition to


21     In the trial court, Walker's motion to transfer the case to the Juvenile Court was
based exclusively on the contention that Proposition 57 applied retroactively. In this
court, Walker contends that the trial court's order constitutes a proper prospective
application of Proposition 57. The People contend that the trial court's order is premised
on an improper retroactive application of Proposition 57.
                                             24
a juvenile defendant who has not yet been tried in Adult Court constitutes a prospective

application of the law.22

       1. The test for determining whether a law is being applied retroactively or
          prospectively

       In Tapia, supra, 53 Cal.3d 282, the Supreme Court considered whether various

changes in the criminal law made by Proposition 115 could be applied to crimes

committed before the proposition's effective date. (Tapia, at p. 286.) After determining

that the law could be applied only prospectively (id. at p. 287), the Supreme Court

considered "what the terms 'prospective' and 'retrospective' mean." (Id. at p. 288.) The

defendant in Tapia argued that a law is applied retroactively "if it is applied to the

prosecution of a crime committed before the law's effective date." (Ibid.) The Tapia

court agreed that "[f]or some types of laws, the test which [defendant] proposes is clearly

appropriate." (Ibid.) Specifically, the Tapia court stated that "a law is retrospective if it

defines past conduct as a crime, increases the punishment for such conduct, or eliminates

a defense to a criminal charge based on such conduct." (Ibid.)

       However, the Tapia court reasoned that the defendant's "proposed test is not

appropriate . . . for laws which address the conduct of trials which have yet to take place,

rather than criminal behavior which has already taken place." (Tapia, supra, 53 Cal.3d at

p. 288, italics added.) Laws that address the conduct of trials may be applied irrespective

of the date on which criminal conduct occurred. (Ibid.) Further, laws that address the


22      While Walker has been tried in Adult Court, he contends that, in light of this
court's reversal of the judgment based on that trial, he stands in the same position as any
other juvenile awaiting trial in Adult Court.
                                              25
conduct of trials, may be applied prospectively to the extent that "they relate to the

procedure to be followed in the future." (Ibid., italics added.) The Tapia court explained,

"[I]t is evident that a law governing the conduct of trials is being applied 'prospectively'

when it is applied to a trial occurring after the law's effective date, regardless of when the

underlying crime was committed or the underlying cause of action arose." (Id. at p. 289,

italics added.)

       In explaining the distinction between prospective and retroactive statutes, the

Tapia court distinguished People v. Hayes (1989) 49 Cal.3d 1260 (Hayes), in which the

court concluded that a statute that required the exclusion of certain prehypnotic

evidence,23 could not be applied to a defendant where the hypnosis occurred prior to the

effective date of the statute:

           "[Defendant] also interprets our opinion in . . . Hayes, supra, 49
           Cal.3d 1260, as supporting his position. It does not. In Hayes[,] we
           considered the effect of Evidence Code section 795, which requires
           the exclusion of prehypnotic testimony unless certain statutory
           procedures were followed at the time of hypnosis. As in our
           previous cases, we began by reaffirming the presumption that new
           statutes operate prospectively and proceeded to determine what
           'prospective' operation meant in the case before us. We did not hold
           that the statute would apply, or not, based upon the date the alleged
           crime was committed. Instead, we looked to the date of the conduct
           regulated by the statute. Because the prehypnotic evidence in
           question predated the statute, we held that '[t]o invoke section 795 to
           exclude such evidence . . . would be tantamount to giving the statute


23     "Prehypnotic evidence" refers to evidence obtained from a witness prior to the
witness undergoing hypnosis. (Hayes, supra, 49 Cal.3d at p. 1274.) In Hayes, the court
explained that while prior case law established that posthypnotic evidence is generally
inadmissible (id. at p. 1268, italics added), "a witness who has undergone hypnosis is not
barred from testifying to events which the court finds were recalled and related prior to
the hypnotic session." (Id. at p. 1270, italics added.)
                                             26
          retroactive effect.' ( . . . Hayes, supra, 49 Cal.3d at p. 1274.) The
          past conduct to which the statute attached legal consequences was
          the use of hypnosis; the date of the offense was irrelevant." (Tapia,
          supra, 53 Cal.3d at p. 291, italics added.)

       The Tapia court then applied its definition of the terms "prospective" and

"retrospective" in "determin[ing] which of Proposition 115's provisions may and may not

be applied to the prosecution of crimes committed before the measure's effective date."

(Tapia, supra, 53 Cal.3d at p. 297.) The Tapia court noted that the provisions in

Proposition 115 fell into four categories: "(A) provisions which change the legal

consequences of criminal behavior to the detriment of defendants; (B) provisions which

address the conduct of trials; (C) provisions which clearly benefit defendants; and (D) a

single provision which codifies existing law." (Tapia, at p. 297.)

       After stating that laws that change the legal consequences of behavior to a

defendant's detriment may not be applied to crimes committed before the proposition's

effective date (category A) (Tapia, supra, 53 Cal.3d at pp. 298–299), the Tapia court

stated the following:

          "Other provisions of Proposition 115 address the conduct of trials
          rather than the definition of, punishment for, or defenses to crimes.
          These provisions include section 2 . . . which eliminates
          postindictment preliminary hearings; section 4 . . . which gives the
          People the right to due process and a speedy trial; section 5 . . .
          which provides that the Constitution shall not be construed to
          prohibit joinder, makes hearsay evidence admissible at preliminary
          hearings, and makes discovery reciprocal; sections 6, 7, and 7.5 . . .
          which reform voir dire; sections 8, 15, 16, 17, and 18 . . . which
          reform preliminary hearing procedures; section 19 . . . which
          provides that the absence of cross-admissibility is not a ground for
          severance; section 20 . . . which requires appointment of counsel
          who is ready to proceed; section 21 . . . which provides that felony
          trials shall take place within 60 days of arraignment; section 22 . . .

                                             27
           which authorizes continuances to maintain joinder; sections 23, 24,
           25, and 27 . . . which reform discovery procedures and provide for
           reciprocal discovery; and section 28 . . . which provides for appellate
           review of trial dates and continuances." (Id. at p. 299.)

       As the quotation indicates, the Tapia court defined as provisions "address[ing] the

conduct of trials" (Tapia, supra, 53 Cal.3d at p. 299, italics added), numerous changes in

the law governing pretrial proceedings (e.g., the elimination of postindictment

preliminary hearings, proceedings governing the admission of hearsay at preliminary

hearings, and reciprocal discovery procedures). (Ibid.) The Tapia court concluded that

"certain [of these] provisions addressing the conduct of trials," (id. at p. 286, italics

added) could be applied in the prosecutions of crimes committed prior to Proposition

115's effective date. (Tapia, at p. 286.)

       In addressing which of the provisions addressing the conduct of trials could be

applied to the defendant, the Tapia court noted that the defendant had "advanced several

arguments in an effort to show that application of such provisions in his case, even

though addressed on their face to the conduct of future trials and not to past criminal

behavior, will nevertheless be 'retrospective' as applied to him." (Tapia, supra, 53 Cal.3d

at p. 299.) The Tapia court rejected the defendant's argument that changes to procedures




                                              28
governing voir dire could not be applied to him,24 since voir dire had yet to commence in

his trial.25 (Tapia, at pp. 299–300.)

       However, and critical for this case, the Tapia court concluded that Proposition

115's reciprocal discovery provisions could not properly be applied prospectively to

compel the production of evidence obtained by defense counsel before the effective date

of the proposition. The Tapia court reasoned that use of the new law in this context

would in fact constitute an impermissible retroactive application of Proposition 115:

          "Application of the discovery provisions to compel production of
          evidence obtained by defense counsel before Proposition 115's
          effective date would be retroactive under the principles we have
          already discussed. This is because counsel can only be guided,
          while conducting an investigation, by the discovery rules then in
          force." (Tapia, supra, 53 Cal.3d at p. 300.)26

       In the wake of Tapia, the Supreme Court has made clear that "a change in

procedural law is not retroactive when applied to proceedings that take place after its

enactment." (People v. Sandoval (2007) 41 Cal.4th 825, 845, italics added (Sandoval).)

24      According to the defendant, the changes in the voir dire statute could not be
applied to him because his counsel "might have sought an earlier ruling on a motion to
change venue rather than waiting for the results of voir dire." (Tapia, supra, 53 Cal.3d at
p. 299.)
25      In describing the procedural history of the case, the Tapia court expressly stated
that voir dire had yet to commence in the defendant's trial at the time Proposition 115
became effective. (Tapia, supra, 53 Cal.3d at p. 286.)
26      Although not of relevance to this issue, the Tapia court stated that provisions in
Category C could be applied to the defendant under case law extending Estrada to
provisions "redefin[ing], to the benefit of defendants, conduct subject to criminal
sanctions." (Tapia, supra, 53 Cal.3d at p. 301 [citing Rossi, supra, 18 Cal.3d 295].) We
explained in pt. III.B.4, ante, why Estrada and its progeny, such as Rossi, do not apply in
this case. In addition, although not of relevance to this appeal, the Tapia court stated that
a provision that codified existing law may be applied to crimes committed before the
codification (Category D). (Tapia, at pp. 301–302.)
                                             29
       For example, in People v. Ledesma (2006) 39 Cal.4th 641 (Ledesma), the Supreme

Court considered whether a change in the law reducing the number of peremptory

challenges that each side could employ in a capital trial could be applied lawfully to the

defendant. (Id. at p. 663.) The amendment to the law became effective while the

defendant was awaiting retrial. (Ibid.) Specifically, the law became effective after

"pretrial proceedings—including motions and discovery— [had begun] in his retrial," but

prior to the selection of the jury in the retrial. (Ibid.) The Ledesma court held that

reducing the number of peremptory challenges that the parties could exercise was not an

improper retroactive application of the statute because the conduct regulated by the

statute—the selection of jurors—had yet to occur:

          "We reject defendant's argument that application of [the new law] to
          his case is retroactive because the pretrial portions of his trial began
          before that statute went into effect. The operative date for
          determining prospective application of a statute is the 'date of the
          conduct regulated by the statute.' (Tapia . . . , supra, 53 Cal.3d at p.
          291; see [Hayes, supra,] 49 Cal.3d [at p. 1274] [holding that a new
          statute specifying conditions under which the testimony of a witness
          who has undergone hypnosis may be admitted could not be applied
          in a retrial after the effective date of the statute when the witness had
          been interviewed under hypnosis before the effective date of the
          statute].) [The new law] governs the conduct of the jury selection
          portion of the trial. Therefore, application of the statute that was in
          effect at the time defendant's jury was selected is a proper,
          prospective application of the statute." (Id. at p. 664.)

       2. Applying Proposition 57 to Walker's case constitutes an impermissible
          retroactive application of Proposition 57

       It is undisputed that, prior to the effective date of Proposition 57, the People

properly filed charges against Walker in Adult Court pursuant to former section 707,



                                             30
subdivision (d).27 As outlined in part III.A.1, ante, "Proposition 57 eliminated the

People's ability to directly file charges against a juvenile [defendant] in adult court . . . ."

(Lara, supra, 9 Cal.App.5th at p. 758, italics added; see Cervantes, supra, 9 Cal.App.5th

at p. 596 ["After the passage of Proposition 57, the charging instrument for all juvenile

crimes must be filed in juvenile court" (italics added)].) Thus, to apply Proposition 57's

new filing provisions to conclude that a case properly filed in Adult Court before

Proposition 57's effective date must be transferred to Juvenile Court would be a

retroactive application of Proposition 57 under Tapia. (See Tapia, supra, 53 Cal.3d at p.

300 ["Application of the discovery provisions to compel production of evidence obtained

by defense counsel before Proposition 115's effective date would be retroactive" (italics

added)].) Stated differently, "the conduct regulated by [Proposition 57]" (id. at p. 291,

discussing Hayes) is the filing of charges against a juvenile defendant, and thus,

Proposition 57's changes to the law governing the filing of charges may not be applied to

cases properly filed in Adult Court "before the effective date of the statute." (Ledesma,

supra, 39 Cal.4th at p. 664, discussing Hayes, italics added.)

       Conversely, because the amendments to sections 602 and 707 brought about by

Proposition 57 pertain to the filing of criminal charges, as applied to Walker, they do not

" 'relate to the procedure to be followed in the future' " (Tapia, supra, 53 Cal.3d at p. 288,

italics added) and do not "appl[y] to proceedings that [will] take place after its

enactment." (Sandoval, supra, 41 Cal.4th at p. 845, italics added.) Criminal charges


27    As noted previously (see pt. II, ante), the People filed the initial complaint against
Walker more than four years prior to Proposition 57's effective date.
                                               31
were filed against Walker well before the enactment of Proposition 57. (Compare with

Tapia, at pp. 286, 299 [changes to law governing voir dire may be applied prospectively

where voir dire has not occurred]; and Ledesma, supra, 39 Cal.4th at p. 664 [changes to

law governing jury selection may be applied prospectively where jury selection has not

occurred].)

       While Walker suggests that Tapia provides that the application of a law is

necessarily prospectively so long as the trial has not begun, Tapia is clear that applying a

change in the law to a pretrial procedure that has already occurred constitutes an

impermissible retroactive application of the law. (Tapia, supra, 53 Cal.3d at p. 300

[applying change in law mandating reciprocal discovery to discovery obtained prior to

the change in the law constitutes a retroactive application of the law].) Further, all of the

cases cited in Walker's brief in support of his contention that Proposition 57 may be

applied in his case are distinguishable because they involve the prospective application of

a statute to a procedure that will occur in the future. For example, in Bourquez v.

Superior Court (2007) 156 Cal.App.4th 1275 (Bourquez), the Court of Appeal concluded

that a change in the law occasioned by Proposition 83 to provide for the indeterminate

commitment of persons committed under the Sexual Violent Predator Act (§ 6600) could

prospectively be applied to individuals whose commitment proceedings were pending at

the time of the effective date of the change in the law. (Bourquez, at p. 1289.) The

Bourquez court explained that " 'the critical question for determining retroactivity usually

is whether the last act or event necessary to trigger application of the statute occurred

before or after the statute's effective date.' " (Id. at p. 1288.) The Bourquez court

                                             32
concluded that the last event necessary to trigger the application of the statute at issue in

that case would occur at the time of the commitment, and thus, after the passage of

Proposition 83:

          "In determining whether someone is [a sexually violent predator
          under the law], the last event necessary is the person's mental state at
          the time of the commitment. For pending petitions, the person's
          mental state will be determined after the passage of Proposition 83,
          at the time of commitment." (Bourquez, at p. 1289.)

       Similarly, in John L. v. Superior Court (2004) 33 Cal.4th 158 (John L.), the

Supreme Court concluded that certain changes in the law brought about by Proposition

21 pertaining to the standard of proof and the admissibility of evidence in juvenile

probation proceedings conducted pursuant to section 777 could lawfully be applied to

future proceedings. (John L., at p. 171.) The John L. court reasoned, "Proposition 21's

standard of proof and evidentiary provisions concern the conduct and procedure to be

followed in future section 777 proceedings, i.e., juvenile probation violation hearings held

after [the effective date of Proposition 21]." (Ibid., italics added; see also In re Chong K.

(2006) 145 Cal.App.4th 13, 18–19 (Chong) [relying on John L. and concluding that

"Proposition 21's amendment to section 781 [governing requests to seal juvenile records]

applies to all petitions to seal juvenile records brought under that statute on or after [the

effective date of Proposition 21], regardless of when the underlying offenses occurred"

(italics added)].)28



28      Although the Chong court described its application of the statutory changes at
issue in that case as a "retrospective" application of the law (Chong, supra, 145
Cal.App.4th at p. 19), it is clear that the Chong court meant only that the law could be
                                              33
       Strauch v. Superior Court (1980) 107 Cal.App.3d 45 (Strauch),29 is not to the

contrary. In Strauch, a plaintiff who filed a medical malpractice complaint failed to

attach to the complaint a certificate of merit, as had been mandated under the law at the

time of the filing of the complaint. (Strauch, at p. 47.) The defendants moved to strike

the complaint, and the trial court granted plaintiff's motion for relief from the late filing

for mistake of law pursuant to Code of Civil Procedure section 473. (Strauch, at p. 47.)

After the trial court's ruling, but while the defendant's petition for writ of mandate

challenging the trial court's ruling remained pending, the law requiring the filing of the

certificate of merit at the time of the filing of the complaint was amended in such a way

so as to "validate" the timing of the plaintiff's filing of the complaint. (Id. at p. 48.) The

Court of Appeal concluded that a prospective application of the new statute cured the

plaintiff's filing and the court was not required to consider the propriety of the trial court's

ruling under Code of Civil Procedure section 473. (Strauch, at p 49.) Thus, in Strauch,

the validity of the procedural action at issue remained pending at the time of the effective

date of the new law. In this case, in contrast, the filing of the accusatory pleading against


applied to offenses committed before the effective date of the statute. This is made clear
by the fact that the Chong court relied on John L. in concluding that the change in the law
could be applied to petitions to seal brought on or after the effective date of statute,
regardless of when the underlying offenses occurred. (Ibid.) Thus, properly understood,
Chong stands for the proposition that the changes to Proposition 21 pertaining to petitions
to seal juvenile records may be applied prospectively to petitions filed on or after the
effective date of the statute. We disagree with the Chong court to the extent that it
described this application of Proposition 21 as being "retrospective" (Chong, at p. 19), as
that term is used in Tapia and John L.
29      The Lara court heavily relied on Strauch. (Lara, supra, 9 Cal.App.5th at pp. 775–
776.) Walker cited Strauch both in a supplemental brief discussing Lara and Cervantes
and in his answer brief to the San Diego County District Attorney's amicus brief.
                                              34
Walker pursuant to former section 707, subdivision (d) occurred more than four years

prior to Proposition 57's repeal of that provision.

       In sum, as outlined above, Proposition 57 changes the law governing a procedural

event that had already been fully completed in this case as of the effective date of

Proposition 57—the filing of charges against Walker. Applying Proposition 57 to

Walker's case would thus constitute an improper retroactive application of the law

because it would "attach[ ] new legal consequences to . . . an event . . . that was

completed before the law's effective date." (Bourquez, supra, 156 Cal.App.4th at p.

1288.) Such an application is improper under Tapia and its progeny because, in filing

charges against Walker, the People could "only be guided . . . by the [law] then in force."

(Tapia, supra, 53 Cal.3d at p. 300.)

       Accordingly, we conclude that the trial court's application of Proposition 57 to

Walker's case constitutes an improper retroactive application of the proposition.

       3. We respectfully disagree with the conclusions of the Courts of Appeal in
          Cervantes and Lara that a prospective application of Proposition 57 requires
          that a fitness hearing be held in cases directly filed in Adult Court prior to the
          effective date of Proposition 57

       We have carefully considered the decisions of the Courts of Appeal in Cervantes

and Lara concluding that Proposition 57 properly applies prospectively to cases directly

filed in Adult Court before the effective date of Proposition 57. (See Cervantes, supra, 9

Cal.App.5th at p. 602; Lara, supra, 9 Cal.App.5th at p. 774–775.) We respectfully

disagree with the reasoning and conclusions in both cases.




                                             35
       In Cervantes, the Court of Appeal concluded that "applied prospectively,

Proposition 57 requires a fitness hearing before a juvenile felon is 'tried in Adult Court'

initially or on remand." (Cervantes, supra, 9 Cal.App.5th at p. 602, capitalization &

italics omitted, quoting Prop. 57, § 2.) In support of this conclusion, the Cervantes court

noted that both the uncodified statement of purpose and intent in section 2 of Proposition

57 as well as the Legislative Analyst's summary of the proposition refer to the law as

changing whether a juvenile could be "tried in adult court." (Prop. 57, § 2 ["In enacting

this act, it is the purpose and intent of the people of the State of California to . . . [r]equire

a judge, not a prosecutor, to decide whether juveniles should be tried in adult court"

(italics added), (Voter Guide, supra, analysis of Prop. 57 by Legis. Analyst, p. 56 ["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" (italics added)].) From such statements, the

Cervantes court concluded, "the phrase, 'tried in adult court'—or the prospect of being

tried in adult court upon the filing of a transfer motion—appears to be the trigger for a

juvenile's right to a fitness hearing." (Cervantes, at p. 602; see also Lara, supra, 9

Cal.App.5th at pp. 776–777 [employing similar reasoning].)

       The difficulty with this reasoning is that it is unmoored to any of the operative text

of Proposition 57. As the Cervantes court acknowledged, while statements of intent or

purpose "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."

(Cervantes, supra, 9 Cal.App.5th at p. 604.) However, such provisions are "not intended

to be a substantive part of the code section or general law that the bill enacts . . . ."

                                               36
(People v. Allen (1999) 21 Cal.4th 846, 858, fn. 13; accord 1A Sutherland, Statutory

Construction (7th ed.) § 20:3.) In addition, while we have no quarrel with the Cervantes

court's statement that "the Legislative Analyst's interpretation" of a statute may be useful

in determining "voter intent" (Cervantes, at p. 604), the plain text of a statute must

prevail over unenacted language in legislative history. (See In re Cervera (2001) 24

Cal.4th 1073, 1079–1080 [declining to give effect to statements in legislative history

concerning effect of Three Strikes law because "it was the Three Strikes law that was

enacted, not any of the documents within its legislative or initiative history. A statute, of

course, must prevail over any summary [in the legislative history]".)

       Neither the Lara court nor the Cervantes court cites to any language in the

operative text of Proposition 57 stating that a juvenile may no longer be tried in Adult

Court without a transfer hearing. That is because there is no such language. As

discussed above, Proposition 57 eliminated the People's ability to directly file charges

against a juvenile defendant in Adult Court. (See pt. III.A.1, ante.) If the text of

Proposition 57 provided that a juvenile may no longer be tried in Adult Court, then we

might agree with the Lara and Cervantes courts that, under Tapia, the change in the law

would apply to cases not yet tried. (See Tapia, supra, 53 Cal.3d at p. 289 ["a law

governing the conduct of trials is being applied 'prospectively' when it is applied to a trial

occurring after the law's effective date" (italics added)].) However, absent such text, we

cannot agree with the courts in Lara and Cervantes that Proposition 57 may properly be

applied prospectively to cases filed in Adult Court prior to the effective date of the

proposition.

                                             37
       The remainder of the arguments offered by the Cervantes and Lara courts are also

unpersuasive. The Cervantes court suggested that Proposition 57 may be applied to cases

pending in Adult Court at the time the proposition became effective for the following

reason:

          "Section 707 describes its reach broadly, indicating it applies '[i]n
          any case in which a minor is alleged to be a person described in
          Section 602.' (Welf. & Inst. Code, § 707, subd. (a)(1), italics added.)
          We see nothing in Welfare and Institutions Code section 707 that
          requires the allegation to be pending in [J]uvenile [C]ourt at the
          time of the fitness hearing." (Cervantes, supra, 9 Cal.App.5th at p.
          602, second italics added.)

       However, section 707, subdivision (a)(1) further provides:

          "In any case in which a minor is alleged to be a person described in
          Section 602 by reason of the violation, when he or she was 16 years
          of age or older, of any felony criminal statute, or of an offense listed
          in subdivision (b) when he or she was 14 or 15 years of age, the
          district attorney or other appropriate prosecuting officer may make
          a motion to transfer the minor from juvenile court to a court of
          criminal jurisdiction." (Italics added.)

       The italicized text above makes clear that a motion to transfer under section 707

applies where the matter is "pending in [J]uvenile [C]ourt" (Cervantes, supra, 9

Cal.App.5th at p. 602). Otherwise, there would be no need for the prosecuting attorney to

make a motion to transfer the minor from Juvenile Court to Adult Court.

       The Cervantes court also stated that the uncodified provisions of Proposition 57

such as section 5 (mandating that Prop. 57 be "broadly construed to accomplish its

purposes") and section 9 (stating that Prop. 57 shall be "liberally construed to effectuate

its purposes") support the conclusion that Proposition 57 is to be applied to cases filed in

Adult Court before the effective date of the proposition. (Cervantes, supra, 9

                                             38
Cal.App.5th at p. 604). As discussed above, to rely on such broad principles of

interpretation, in the absence of any statutory text supporting a retroactive application of

the statute, is contrary to the Supreme Court's admonishment not to "infer retroactive

intent from vague phrases and broad, general language." (Brown, supra, 54 Cal.4th at p.

319.) Indeed, the Supreme Court has specifically rejected such reasoning. (DiGenova v.

State Board of Education (1962) 57 Cal.2d 167, 173 ["The statement in the Education

Code that its provisions are to be liberally construed with the view to effect its objects

and promote justice (§ 2) cannot be interpreted as a declaration that any of its sections is

to be given retroactive effect"].)

       Similarly, the Cervantes court stated that the tenet of statutory interpretation that

courts must "read a statute in a manner to effectuate its underlying purpose," (Cervantes,

supra, 9 Cal.App.5th at p. 604) is "significant, [and] indeed controlling." (Ibid.) The

Supreme Court has rejected similar reasoning:

           "[D]efendants' claim that the 'remedial' purpose of the measure
           necessarily demonstrates that the electorate must have intended that
           the proposition apply retroactively cannot be sustained. Although
           the 'findings and declaration of purpose' included in the proposition
           clearly indicate that the measure was proposed to remedy . . .
           perceived inequities . . . , such a remedial purpose does not
           necessarily indicate an intent to apply the statute retroactively. Most
           statutory changes are, of course, intended to improve a preexisting
           situation and to bring about a fairer state of affairs, and if such an
           objective were itself sufficient to demonstrate a clear legislative
           intent to apply a statute retroactively, almost all statutory provisions
           and initiative measures would apply retroactively rather than
           prospectively." (Evangelatos, supra, 44 Cal.3d at p. 1213.)

       We are also unpersuaded by the Cervantes court's related reasoning that

Proposition 57 must be applied to cases filed in Adult Court prior to its effective date in

                                             39
order to effectuate the "fundamental policy shift" of the proposition's "rejection of the

concept of mandatory direct filing" (Cervantes, supra, 9 Cal.App.5th at p. 605), and to

further the electorate's "[a]meliorative [i]ntent" (id. at p. 605, italics omitted). With

respect to the first rationale, the Cervantes court cited no authority, and we are aware of

none, that supports the conclusion that the magnitude of the public policy change caused

by a new law is relevant in determining whether a change in the law may be applied to a

procedure that has already occurred in the case. In our view, the second rationale

("ameliorative intent") echoes Estrada, which, as the Cervantes court concluded, is

improper. (Compare Cervantes, at p. 595 ["the statutory amendments under Proposition

57 do not amount to a reduction of a penalty and are not subject to retroactive application

under Estrada"] with id. at pp. 606–607 [stating that the opportunity for a transfer

hearing "while not a 'mitigation of penalty' in the Estrada sense, must be recognized as

ameliorative in intent, and sometimes in substance"].)

       We also do not find the reasoning of the Lara court to be convincing. After

discussing the Supreme Court's decision in Tapia, the Lara court reasoned:

           "The legislative changes at issue in this petition fit easily into this
           framework. Requiring a juvenile judge to assess whether real party
           in interest is tried in adult court strikes us as a 'law governing the
           conduct of trials.' (Tapia, supra, 53 Cal.3d at p. 289.) Because
           Proposition 57 can only apply to trials that have yet to occur, it can
           only be applied prospectively." (Lara, supra, 9 Cal.App.5th at pp.
           774–775.)

       To begin with, the Lara court's analysis appears to assume that all laws governing

the "conduct of trials," are laws pertaining to "trials that have yet to occur." (Lara, supra,

9 Cal.App.5th at pp. 774–775.) However, as discussed above (see pt. III.C.1, ante),

                                              40
Tapia makes clear that the category of laws governing "the conduct of trials" includes

many pretrial procedures, such as reciprocal discovery procedures. (Tapia, supra, 53

Cal.3d at p. 299.) Tapia also makes clear that the application of a change in the law to an

event that has already occurred in a case, is a retroactive application of the law. (Tapia,

at p. 300 [to apply change in the law governing reciprocal discovery provisions to

discovery obtained prior to the effective date of the changed law "would be retroactive

under the principles we have already discussed"].) Thus, as discussed above (see pt.

III.C.2, ante), to apply Proposition 57's change in the law governing the filing of charges

against juveniles to filings that had occurred prior to the effective date of the changed law

is a retroactive application of the proposition. (See Tapia, at p. 300.)

       We are similarly unconvinced by the Lara court's dismissal of the People's

contention in that case, which we find persuasive, that Proposition 57 may not be applied

prospectively to the procedural aspects of a case that have already occurred, such as the

direct filing of the case in Adult Court, because such an application is, in fact, a

retroactive application of the law. In rejecting this contention, the Lara court reasoned as

follows:

           "[T]he People reason that 'Proposition 57's procedural changes can
           only be applied to 'new' and 'future' proceedings [citation] and
           cannot be applied to procedural aspects that have already taken
           place, such as the previous direct-filing of a case . . . . [¶] This
           position is unavailing. Although real party in interest is now under
           the jurisdiction of the [J]uvenile [C]ourt, the People may move to
           have him transferred to [A]dult [C]ourt if they think he meets the
           criteria for trial there. ( . . . § 707, subd. (a).) Even assuming the
           decision to directly file a complaint against real party in interest in
           [A]dult [C]ourt is in fact the last act before Proposition 57 can be
           applied, the People's position fails because they have not identified

                                              41
          how asking them to get the [J]uvenile [C]ourt's permission before
          proceeding to a final adjudication in adult court 'attaches new legal
          consequences to, or increases a party's liability for, an event,
          transaction, or conduct that was completed before the law's effective
          date.' " (Lara, supra, 9 Cal.App.5th at p. 775.)

       To begin with, the Lara court's unexplained assertion that the real party was "now

under the jurisdiction of the [J]uvenile [C]ourt" is conclusory, (Lara, supra, 9

Cal.App.5th at p. 775)30 and we are not persuaded by the Lara court's suggestion that

Proposition 57 requires the People to get "permission" from the Juvenile Court before

proceeding to a "final adjudication" in a case that was properly filed in Adult Court prior

to the effective date of the proposition. (Lara, at p. 775.) On the contrary, as we have

explained, Proposition 57 changes the court in which the People may file criminal

charges, and in that way alters where the People may commence a proceeding, rather than

barring the People from proceeding to a "final adjudication" (Lara, at p. 775, italics

added) in Adult Court. Finally, contrary to the Lara court, we conclude that applying

Proposition 57 to cases properly filed in Adult Court under prior law does attach a new

legal consequence to an event completed prior to the change in the law. (Lara, at p. 775.)

Specifically, such application attaches a new legal consequence to the prior proper filing

of charges in Adult Court, an event completed prior to the change in the law, by

invalidating the filing and transferring the matter back to Juvenile Court.




30      Elsewhere in its opinion, the Lara court explained that "[p]rior to the passage of
Proposition 57, the People directly filed a complaint against real party in interest, a
minor, in [A]dult [C]ourt under the authority of former section 707, subdivision
(d)(2) . . . ." (Lara, supra, 9 Cal.App.5th at p. 758.)
                                             42
       Finally, neither the Cervantes court nor the Lara court identified any procedural

mechanism in Proposition 57 by which an Adult Court may transfer to the Juvenile Court

a case that was pending in Adult Court as of the effective date of the proposition. As

discussed above, the Lara court merely asserted that the real party was now under the

jurisdiction of the Juvenile Court (Lara, supra, 9 Cal.App.5th at p. 775), and the

Cervantes court looked to two statutes, section 604 and Penal Code section 1170.17,31 as

"analogue[s]," that could "provide a procedural framework for a transfer to juvenile

court." (Cervantes, supra, 9 Cal.App.5th at pp. 613–614.) In our view, the absence of

any mechanism within Proposition 57 to effectuate such transfers further demonstrates




31      The Cervantes court explained that section 604 "provides for suspension of
proceedings in criminal court and certification to juvenile court when it is discovered that
the defendant was a minor when the crime was committed." (Cervantes, supra, 9
Cal.App.5th at pp. 613–614.)
        The Cervantes court stated that Penal Code section 1170.17 "provides for a
judicial assessment of fitness before sentencing whenever a juvenile felon has been
'prosecuted' under the criminal law 'and the prosecution was lawfully initiated in a court
of criminal jurisdiction without a prior finding that the person is not a fit and proper
subject to be dealt with under the juvenile court law.' " (Cervantes, at pp. 614.)
However, the Cervantes court noted that "[u]nder the California Rules of Court . . . [the
defendant] and other juvenile felons tried in criminal court under the direct filing
procedure are not eligible to bring a motion under [Penal Code] section 1170.17. The
procedure described in that section may nevertheless be used on remand for the fitness
hearing we order under Proposition 57." (Ibid.)
        While this appeal was pending, we asked the parties for supplemental briefing
concerning what effect, if any, Penal Code section 1170.17 has on the issue in this case.
The People argued that the electorate's failure to abrogate Penal Code section 1170.17
"indicates an intent for [Proposition 57] to apply prospectively." We need not address the
People's argument in light of our conclusion that Proposition 57 does not apply to cases
filed in Adult Court prior to the effective date of the proposition, for the reasons stated in
the text.
                                             43
that the proposition was not intended to be applied to cases filed in Adult Court prior to

the effective date of the proposition.

       In short, the procedure approved in Cervantes and Lara—the transfer of a minor's

case from Adult Court to Juvenile Court to permit the People to bring a motion to transfer

the case back to Adult Court under the new law—does not constitute a proper prospective

application of Proposition 57. Rather such a procedure is premised on the combination

of an impermissible retroactive application of Proposition 57 to invalidate a properly

direct filed case under the former law and the borrowed "procedural framework"

(Cervantes, supra, 9 Cal.App.5th at p. 613) of a law outside of Proposition 57 to transfer

the case from the Adult Court to the Juvenile Court. Because we see nothing in either

Proposition 57 or California law that would justify or require such transfers, we decline

to follow the Cervantes and Lara courts. (See Taxpayers to Limit Campaign Spending v.

Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 772 [refusing to "usurp the legislative

role, creating, in the worst scenario, a Frankenstein's monster whose existence the voters

never contemplated"].)32


32     For the reasons stated in the text, the absence of any procedural mechanism within
Proposition 57 with respect to the manner in which it should be applied to cases filed in
Adult Court prior to the effective date of the statute demonstrates that the electorate did
not intend for it to be applied to such cases as a matter of statutory interpretation.
Further, the absence of any such statutory procedural mechanisms would likely pose
great challenges for trial courts as they attempt to uniformly implement Proposition 57 in
such cases. Consider the complexity of the disposition in Cervantes, in which the Court
of Appeal explained how Proposition 57 should be applied on remand in an appeal in
which the judgment was affirmed in part and reversed in part:
          "The judgment is affirmed as to counts 3, 8, 9, 11, 12, 13 and 14 and
          their accompanying enhancements and findings. The judgment is
                                             44
D. The Adult Court continues to have jurisdiction over Walker, notwithstanding
   Proposition 57's amendment of section 602

        Walker argues in the alternative, in an undeveloped argument, that "[u]nder the

language of [§ 602], the moment Proposition 57 became effective, all juvenile

[defendants] prosecuted in [Adult Court] without a transfer hearing fell under the

jurisdiction[33] of the [J]uvenile [C]ourt." Walker's claim raises an issue of statutory

interpretation, which we review de novo, applying the principles outlined in part III.B.1,

ante.



           reversed as to counts 1, 2, 4 through 7, 10 and 15, together with
           accompanying enhancements and findings, as is the sentence on all
           counts. . . . The cause is remanded for further proceedings in
           accordance with this opinion. [¶] Before any further proceedings are
           conducted in criminal court, Cervantes may avail himself of a fitness
           hearing, and if he does so, the matter shall be transferred to the
           juvenile court for a transfer hearing under . . . section 707. The trial
           court shall suspend criminal proceedings pending the outcome of
           that hearing. The transfer hearing shall be conducted substantially in
           compliance with the views expressed in this opinion. . . . [¶] After
           the transfer hearing, if the case is transferred to the criminal court,
           the district attorney may elect to retry the reversed counts within the
           time allowed by statute. The time limit shall run from the date of the
           juvenile division's order on the fitness hearing. If the district
           attorney elects not to retry those counts, the charges shall be
           dismissed. After retrial, or after dismissal of the reversed counts,
           Cervantes shall be resentenced . . . ."
33      As alluded to in part I, ante, the Supreme Court has explained that the term
"jurisdiction" in section 602 does not refer to "subject matter jurisdiction," but rather, to
"the statutory authority of the particular division of the superior court, in a given case, to
proceed under the juvenile court law or the law generally applicable in criminal actions."
(Manduley, supra, 27 Cal.4th at p. 548, fn. 3 [discussing former section 602, subdivision
(a)].) Thus, we interpret Walker's argument as a contention that section 602 provides that
the juvenile court law applies to all juvenile defendants whose cases were pending in
Adult Court, without having been subject to a transfer hearing, upon the effective date of
the statute.
                                             45
       As noted previously (see part III.A.1, ante), as amended by Proposition 57, section

602 provides:

          "Except as provided in Section 707, any person who is under 18
          years of age 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 state
          defining crime other than an ordinance establishing a curfew based
          solely on age, is within the jurisdiction of the [J]uvenile [C]ourt,
          which may adjudge such person to be a ward of the court." (Italics
          added.)

       To begin with, while section 602 describes those persons who are within the

jurisdiction of the Juvenile Court, section 602 does not state that such persons are

exclusively within the jurisdiction of the Juvenile Court. (See Cervantes, supra, 9

Cal.App.5th at p. 598 [stating that section 602 "does not use the term 'exclusive' "].)

Nor does section 602 contain any express restrictions on the jurisdiction of the Adult

Court. (See Cervantes, at p. 598 [rejecting juvenile defendant's contention that section

602 "gives the [J]uvenile [C]ourt 'exclusive jurisdiction' over his case and the cases of all

juvenile [defendants] whose cases are not yet final on appeal—at least until a fitness

hearing is conducted" (fn. omitted)].)

       Further, in light of the reference to section 707 in section 602, section 602 is best

interpreted as providing that "[a]fter the passage of Proposition 57, the charging

instrument for all juvenile crimes must be filed in juvenile court," (Cervantes, supra, 9

Cal.App.5th at p. 596, citing § 602, italics added) and that a prosecutor may file a

"motion to transfer," (§ 707, subd. (a)(1)) the case from Juvenile Court to Adult Court.

We are unpersuaded by Walker's contentions that interpreting section 602 as providing

that the Adult Court lacks jurisdiction over his case is necessary in order to further the

                                             46
voters' intent "that more juveniles be rehabilitated,"34 for all of the reasons discussed in

part III.C, ante, in connection with our discussion of whether the application of

Proposition 57 to Walker's case to require that the case be transferred from Adult Court to

Juvenile Court would constitute a prospective application of the provisions enacted under

the proposition. In short, we agree with the Cervantes court that section 602 does not

"oust the [Adult Court] of jurisdiction," (Cervantes, at p. 599) in a case already pending

in Adult Court under former law. (See ibid. ["Here, [Adult Court] lawfully assumed

jurisdiction under pre-Proposition 57 law and retained jurisdiction throughout the trial;

section 602 does not oust the criminal division of jurisdiction upon remand after an

appeal"].)

       Accordingly, we conclude that the Adult Court continues to have jurisdiction over

Walker, notwithstanding Proposition 57's amendment of section 602.

E. Failing to apply Proposition 57 to Walker's case does not constitute a denial of equal
   protection of the law

       Walker contends that to fail to apply Proposition 57 to him and other "minors like

him," would violate his right to equal protection under the state and federal constitutions.

We apply the de novo standard of review to this claim. (See Yohner v. California Dept.

of Justice (2015) 237 Cal.App.4th 1, 11–12 [applying de novo standard of review to

claim that law violated " 'equal protection principles' " (id. at p. 11)].)



34      In support of this argument, Walker cites to the uncodified portions of Proposition
57 discussing the rehabilitative purpose of the proposition (Prop. 57, § 2) and the voter's
intent that the proposition be construed "broadly" (id., § 5) and "liberally" (id., § 9) that
we address in part III.B.3 and III.C.3, ante.
                                               47
       1. Governing law

       Both the United States Constitution and the California Constitution guarantee the

equal protection of the laws. (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7; see

In re Evans (1996) 49 Cal.App.4th 1263, 1270 [noting that "(t)he scope and effect of the

two clauses is the same"].)

       "The concept of equal protection recognizes that persons who are similarly

situated with respect to a law's legitimate purposes must be treated equally. [Citation.]

Accordingly, ' "[t]he first prerequisite to a meritorious claim under the equal protection

clause is a showing that the state has adopted a classification that affects two or more

similarly situated groups in an unequal manner." ' [Citation.] 'This initial inquiry is not

whether persons are similarly situated for all purposes, but "whether they are similarly

situated for purposes of the law challenged." ' " (Brown, supra, 54 Cal.4th at 328.) "The

second step is determining whether there is a sufficient justification for the unequal

treatment. The level of justification needed is based on the right implicated. When the

disparity implicates a suspect class or a fundamental right, strict scrutiny applies.

[Citation.] When no suspect class or fundamental right is involved, the challenger must

demonstrate that the law is not rationally related to any legitimate government purpose."

(Mendoza, supra, 10 Cal.App.5th at p. 350.)

       2. Application

       Walker contends that it would violate equal protection principles to treat him

differently "from those minors who are alleged to have committed analogous crimes, but

whose alleged offenses occurred after November 8, 2016." In addition to comparing

                                             48
himself to the class of defendants who committed offenses after the adoption of

Proposition 57, Walker also appears to contend that it violates equal protection principles

to treat juvenile defendants differently "based solely on the date on which a felony

complaint against them was filed in superior court." (Italics added.)

       We assume, strictly for purposes of this decision, that Walker is similarly situated

to those juveniles who committed offenses and/or had felony complaints filed against

them after the effective date of Proposition 57. (Compare Cervantes, supra, 9

Cal.App.5th at p. 598, fn. 38 [defendant who committed crimes and who had been

convicted of crimes in Adult Court prior to enactment of Proposition 57 "is not similarly

situated with a juvenile felon who committed his crimes after Proposition 57 was

enacted" (italics added)]; with Mendoza, supra, 10 Cal.App.5th at p. 350 [concluding

defendant challenging Proposition 57 on equal protection grounds who had previously

suffered a conviction in Adult Court "is similarly situated with a class of hypothetical

individuals who are 16 or 17 years old and accused of crimes that could result in transfer

to adult court, but whose trials had not commenced before Proposition 57 became

effective" (italics added)].)

       With respect to the second prong of our equal protection analysis, we reject

Walker's undeveloped assertion that "[g]iven that children have fundamental rights . . .

any disparate treatment of real party and those minors whose alleged offenses came after

the passage of Proposition 57 must be justified under strict scrutiny." The classification

that Walker contends violates equal protection is not one based on age, but rather, is one

based on when a crime was committed or a complaint was filed. Further, while we agree

                                            49
with Walker that "children have fundamental rights," Walker fails to establish that

Proposition 57 impinges on any of those fundamental rights.

       Accordingly, we consider whether there is any rational basis justifying a

prospective application of the law. Clearly, there is. As stated previously (see pt.

III.B.4.b, ante), a rational voter could have concluded that a prospective application of

the law would serve the legitimate goal of judicial economy by avoiding the invalidation

of proceedings already conducted in Adult Court for those juvenile defendants against

whom the People legally and properly directly filed accusatory pleadings in Adult Court

prior to the effective date of Proposition 57. (See Cervantes, supra, 9 Cal.App.5th at p.

570 [rejecting equal protection challenge to Proposition 57 "because a prospective

procedural change in the law that treats defendants differently depending upon when their

crimes were committed does not violate equal protection"]; cf. Mendoza, supra, 10

Cal.App.5th at pp. 351–352 [rejecting equal protection challenge to Proposition 57 and

stating, "The voters could rationally conclude that applying Proposition 57 prospectively

would serve the legitimate purpose of not overwhelming the juvenile courts with requests

for fitness hearings by those who had already been convicted in adult court for crimes

committed as juveniles"].)35

       Accordingly, we conclude that refusing to apply Proposition 57 to Walker's case

does not constitute a denial of equal protection of the law.




35     The Lara court did not reach the equal protection question in light of its resolution
of the petition on other grounds. (See Lara, supra, 9 Cal.App.5th at p. 778.)
                                             50
                                            IV.

                                      CONCLUSION

       This court is not hostile to the policy changes effectuated by Proposition 57.

However, as laudatory as the motivation behind the enactment of Proposition 57 may be,

we conclude that the changes in the law that it enacted may not lawfully be applied to

Walker's case given the lack of any discernable intent on the part of the electorate to

apply Proposition 57 to require transfer hearings in the Juvenile Court for those minors

against whom charges were properly filed in Adult Court prior to the effective date of the

proposition.

                                             V.

                                      DISPOSITION

       Let a writ of mandate issue directing the trial court to (1) vacate its December 12,

2016 order granting Walker's motion to transfer the case to Juvenile Court and (2) to

conduct further proceedings in a manner consistent with this opinion. The stay issued on

December 22, 2016 is vacated.



                                                                       AARON, J.

I CONCUR:

O'ROURKE, J.


I CONCUR IN THE RESULT:

NARES, Acting P. J.


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