Filed 9/30/19
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                               DIVISION SIX


O.G.,                                    2d Crim. No. B295555
                                       (Super. Ct. No. 2018017144
     Petitioner,                           (Ventura County)

v.

THE SUPERIOR COURT OF
VENTURA COUNTY,

     Respondent;

THE PEOPLE,

     Real Party in Interest.


      The Legislature cannot overrule the electorate. All power
of government ultimately resides in the people. (See People v.
Kelly (2010) 47 Cal.4th 1008, 1025; see also DeVita v. County of
Napa (1995) 9 Cal.4th 763, 775.) Under the guise of
“amendment,” an initiative may not be “annulled” by the
Legislature. Consistent with precedent, we “jealously guard” the
law as declared by the voters. We hold that Senate Bill No. 1391
is unconstitutional insofar as it precludes the possibility of adult
prosecution of an alleged 15-year-old murderer. (See post, at pp.
4-5.)
       Fifteen-year-old O.G., despite his age, is deeply enmeshed
in youth gang culture. On two separate occasions and in the
company of gang cohorts, he is alleged to have been the actual
murderer of two people who were in the wrong place at the wrong
time. On one occasion, the victim was shot to death. On the
other occasion, the victim was stabbed to death. The People of
the State of California, by and through the Ventura County
District Attorney, seek to try petitioner as an adult. Proposition
57, an initiative passed by the voters allows the district attorney,
with the approval of the superior court, to try him as an adult.
But effective January 1, 2019, Senate Bill No. 1391 (Stats. 2018,
ch. 1012, § 1 (hereafter S.B. 1391)) prohibits even asking the
superior court for such permission. Instead, notwithstanding a
body count, the facts and circumstances concerning the
commission of the offenses, or the background and history of the
perpetrator, a 15-year-old alleged murderer must be dealt with in
the juvenile court.
       The trial court approved the district attorney’s request to
try petitioner as an adult because it determined, both legally and
factually, that he should be prosecuted in adult court. It
expressly found that the Legislature could not, consistent with
California Supreme Court precedent, i.e., People v. Superior
Court (Pearson) (2010) 48 Cal.4th 564, 571 (Pearson), alter the
terms of the initiative. O.G. petitioned for extraordinary relief.
We issued a stay of the trial and an order to show cause why the
relief prayed for in the petition should not be granted.
       Four court of appeal opinions have ruled that the
Legislature could lawfully “amend” Proposition 57 because the




                                 2
amendment was “consistent” with the goals of Proposition 57.
(People v. Superior Court (Alexander C.) (2019) 34 Cal.App.5th
994; People v. Superior Court (K.L.) (2019) 36 Cal.App.5th 529.)
Contrary to the position taken by the Ventura County District
Attorney, the Attorney General, as amicus curiae, contends that
the extant court of appeal opinions were correctly decided and
that the superior court order approving transfer to adult court
must be vacated.
       Recently, the Fifth Appellate District spoke to the identical
issue in a 2 to 1 opinion, People v. Superior Court (T.D.) (2019) 38
Cal.App.5th 360; see also People v. Superior Court (I.R.) (2019) 38
Cal.Appl.5th 385. The majority in T.D. holds that S.B. 1391
lawfully amends Proposition 57 because it is “consistent with”
and will “further” the intent of Proposition 57. As we explain, it
is not consistent. It is inconsistent as a matter of law. We agree
with the cogent analysis of the dissent authored by Acting
Presiding Justice Poochigian. The T.D. majority at least
recognizes Pearson, supra, 48 Cal.4th 564 but does not ask nor
answer the straightforward determinative question. (See post, at
pp. 4-5.)
       And even more recently, the Sixth District spoke to the
identical issue, again in a two to one opinion. (People v. Superior
Court (S.L.) (Sept. 20, 2019, H046598) __ Cal.App.5th __ [2019
Cal.App. LEXIS 904].) The majority does not cite Pearson which
we believe is determinative. We agree with the cogent analysis of
the dissent authored by Justice Grover.
       It does not matter whether treating a 15-year-old alleged
murderer as a juvenile is wise or unwise. That is not a judicial
call. What is a judicial call is whether the Legislature may
prohibit by statute what the electorate has previously authorized




                                 3
by initiative. We disagree with the four court of appeal opinions
because, frankly, they did not ask nor answer the determinative
question so aptly framed by Justice Chin for a unanimous
Supreme Court in Pearson. Three of the four court of appeal
opinions do not even cite to the Pearson case. Principles of stare
decisis require adherence to the Pearson rule. (Auto Equity
Sales, Inc. v. Superior Court (l962) 57 Cal.2d 450, 455.) In our
view, insofar as S.B. 1391 precludes the possibility of adult
prosecution of a 15-year-old murderer, it is unconstitutional.
(Cal. Const., art. II, § 10, subd. (c).) 1
      The court of appeal opinions seem enamored with the
history of how 15-year-old alleged murderers have historically
been treated. This is, largely, irrelevant. It is the “overruling” of
the People’s latest expression of their wishes in 2016 which is the
starting and ending relevant date. The court of appeal opinions
analyze the enumerated purposes of Proposition 57. This is not
irrelevant but the focus is on the trees and not the forest. The
language of Proposition 57 permits adult prosecution and S.B.
1391 precludes such prosecution. The expressly stated goal of
S.B. 1391 is to categorically preclude the possibility of adult court
treatment of a 15-year-old for specified crimes including murder.
       Pearson, supra, 48 Cal.4th at page 571 posits the
determinative question: “In deciding whether this particular
provision [S.B. 1391] amends Proposition [57], we simply need to

      1 (Cal. Const., art. II, § 10, subd. (c) states: “The
Legislature may amend or repeal a referendum statute. The
Legislature may amend or repeal an initiative statute by another
statute that becomes effective only when approved by the electors
unless the initiative statute permits amendment or repeal
without the electors’ approval.”




                                  4
ask whether it prohibits what the initiative authorizes, or
authorizes what the initiative prohibits.” Here, the superior
court correctly ruled that the initiative authorizes the possibility
of treating a 15-year-old alleged murderer as an adult and that
S.B. 1391 precludes this possibility.
       S.B. 1391 is a jurisdictional change in substantive criminal
law/juvenile law. It is not merely procedural. This attempt to
“overrule” Proposition 57 violates the well settled rule that the
Legislature may not enact a law that thwarts the initiative
process without the consent of the people. (E.g., Proposition 103
Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473,
1484; see also People v. Kelly (2010) 47 Cal.4th 1008, 1025-1026
(Kelly).) If the Legislature wants to change the Proposition 57
rule, it must submit the issue to the electorate. We “jealously
guard” the law as declared by the voters. (Kelly, at p. 1025.)
       We also observe that its declaration that S.B. 1391 “finds
and declares that this act is consistent with and furthers the
intent of Proposition 57 . . . ” is entitled to no weight. (9 West’s
Cal. Legislative Service (Stats. 2018, ch. 1021, § 3, p. 6672 (S.B.
1391)).) This is a self-serving statement designed to bolster the
attempt to overrule the electorate. Whether the act can be so
construed presents a legal question for the judiciary.
       Finally, in our view, S.B. 1391 may contravene Proposition
57’s express purpose to “protect and enhance public safety.” It
may rationally be stated that S.B. 1391 does the opposite. It
provides for juvenile treatment versus punishment for a person
who commits murder or multiple murders. It thus provides less
protection for the public. And let us not forget that just because
the People ask for approval to try a 15-year-old as an adult does
not inexorably mean that the superior court will agree. Who




                                 5
better than a superior court judge to consider the entire
evidentiary picture and background of the 15-year-old to make
this determination?
       The stay order previously issued by this court is vacated.
The order to show cause is discharged. The petition for
extraordinary relief is denied.
      CERTIFIED FOR PUBLICATION.


                                                 YEGAN, J.
We concur:


             GILBERT, P. J.


             PERREN, J.




                                 6
GILBERT, P. J., Concurring.
       I am compelled to agree with my colleagues and those in
other districts who have written dissents that the Legislature
overstepped its boundary in drafting Senate Bill No. 1391. The
legislation contradicts the language of Proposition 57.
       My colleagues in other districts who have upheld the
legislation offer well-intentioned reasons based on what they see
as the voter’s intent. I am reminded of what is reputed to be
Justice Holmes’s dictum: His obligation as a judge is to look at
what the Legislature (here the People) said, not what it (they)
meant.
       However reasonable the views of my colleagues in other
districts concerning the voter’s intent in Proposition 57, the
words of Proposition 57 contradict that view. Our oath of office
requires us to follow the clear language of the proposition absent
a constitutional infirmity. Here the constitutional infirmity is in
Senate Bill No. 1391.
       Separation of powers is a guiding principle of our
democracy. We must preserve this safeguard whatever our views
about the wisdom of the proposition or the legislative enactments
concerning that proposition.
       If we fail to adhere to this analysis of legislation, we follow
a path that can lead to unforeseen consequences in the
interpretation of future legislation. When the shoe is on the
other foot, one may get a bunion.
       CERTIFIED FOR PUBLICATION.




                                GILBERT, P. J.




                                  1
                     Kevin J. McGee, Judge

               Superior Court County of Ventura

                ______________________________

           Richard Lennon, Executive Director, Jennifer
Hansen, Staff Attorney under appointment by the Court of
Appeal and Willard P. Wiksell for Petitioner.

             Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Thomas S. Patterson,
Assistant Attorney General, Tamar Pachter and Nelson R.
Richards, Deputy Attorneys General, as Amicus Curiae on behalf
of Petitioner.

           No appearance for Respondent.

           Gregory D. Totten, District Attorney, Michael D.
Schwartz, Chief Assistant District Attorney, Tate McCallister
and Michelle Contois, Deputy District Attorneys for Real Party in
Interest.
