Filed 8/5/19




                             CERTIFIED FOR PUBLICATION


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIFTH APPELLATE DISTRICT

 THE PEOPLE,
                                                                    F078893
          Petitioner,
                                                           (Super. Ct. No. 19JQ-0003)
                 v.

 THE SUPERIOR COURT OF KINGS                                       OPINION
 COUNTY,

          Respondent;

 I.R.,

          Real Party in Interest.



         ORIGINAL PROCEEDINGS; petition for writ of prohibition and/or mandate.
Donna L. Tarter, Judge.
         Keith Fagundes, District Attorney, and James P.M. Bonnie, Deputy District
Attorney, for Petitioner.
         No appearance for Respondent.
         Woodrow Edgar Nichols, Jr., for Real Party in Interest.
                                           -ooOoo-




                                    SEE DISSENTING OPINION
       Senate Bill No. 1391, enacted by the Legislature in 2018 (2017-2018 Reg. Sess.)
(Stats. 2018, ch. 1012, § 1, eff. Jan. 1, 2019) (Senate Bill No. 1391), eliminated
prosecutors’ ability to seek transfer of 14- and 15-year-olds from juvenile court to
criminal (adult) court, except where such a minor is alleged to have committed a
specified serious offense and is not apprehended prior to the end of juvenile court
jurisdiction. (Welf. & Inst. Code, § 707, subds. (a)(1), (2) & (b).) 1
       Recently, in People v. Superior Court (T.D.) (F078697, Aug. 5, 2019) ___
Cal.App.5th ___, ___, ___ [2019 ___ Cal.App. LEXIS ___, *___, *___] (slip opn. at
pp. 2, 19) (T.D.), we held that Senate Bill No. 1391 validly amended Proposition 57, the
Public Safety and Rehabilitation Act of 2016 (Proposition 57 or the Act). The Act had
permitted such transfer, but only with juvenile court approval. 2 For the reasons stated in
T.D., we reject the claim of petitioner, the District Attorney of Kings County (the District
Attorney), that Senate Bill No. 1391 unconstitutionally amended Proposition 57. We also
address issues not before us in T.D. We hold: (1) Senate Bill No. 1391 is not an
unconstitutional amendment of Proposition 21, the Gang Violence and Juvenile Crime
Prevention Act of 1998 (Proposition 21); (2) Senate Bill No. 1391 is not
unconstitutionally vague; (3) Senate Bill No. 1391 applies retroactively; and (4) the
murder charge against real party in interest I.R. (I.R.) allegedly committed when he was


1     Further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2      “The juvenile court and the criminal court are divisions of the superior court,
which has subject matter jurisdiction over criminal matters and civil matters, including
juvenile proceedings. (See Cal. Const., art. VI, § 10.) When exercising the jurisdiction
conferred by the juvenile court law, the superior court is designated as the juvenile court.
(Welf. & Inst. Code, § 245.)” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 548,
fn. 3 (Manduley).) Accordingly, when we refer to the juvenile court or the criminal
(adult) court, we are referring 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. (See In re Harris (1993) 5 Cal.4th 813, 837.)


                                              2.
age 15 cannot be transferred to criminal court based on a separate felony offense he
allegedly committed when he was age 17. Accordingly, we deny the petition for writ of
prohibition and/or mandate.
                               PROCEDURAL HISTORY 3
       On November 20, 2014, Roman Aguayo was stabbed to death. Six days later, in
Kings County Superior Court case No. 14CM-4797A, the District Attorney directly
charged I.R., in criminal court, with murder committed in association with or for the
benefit of a criminal street gang (Pen. Code, §§ 186.22, subd. (b), 187, subd. (a)) and
active participation in a criminal street gang (id., § 186.22, subd. (a)). 4 I.R., who was 15
years old on the date of the homicide, was held to answer on those charges on February 4,
2015, following a preliminary hearing.
       On November 8, 2016, voters enacted Proposition 57. It went into effect the next
day. (See Cal. Const., art. II, § 10, former subd. (a).) The Act eliminated prosecutors’
ability to file charges against juveniles directly in criminal court. Certain categories of
minors — 16- and 17-year-olds who violated any felony criminal statute, and 14- and 15-
year-olds who committed enumerated serious offenses, including murder — could still be
tried in criminal court, “ ‘but only after a juvenile court judge conduct[ed] a transfer
hearing to consider various factors such as the minor’s maturity, degree of criminal
sophistication, prior delinquent history, and whether the minor [could] be rehabilitated.
[Citation.]’ [Citation.]” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305-306
(Lara); see § 707, former subds. (a), (b).) The Act further eliminated the presumption
that a minor alleged to have committed certain specified serious offenses was not a fit


3       Not all of the documents necessary to a complete procedural history have been
submitted to this court. (See Cal. Rules of Court, rule 8.486(b)(1)(C).) Since the parties
are in basic agreement concerning the timeline of the case, however, we derive portions
of our recitation from their pleadings.
4      Further references to case numbers are to the Kings County Superior Court.


                                              3.
and proper subject to be dealt with under the juvenile court law. (See § 707, former
subd. (c).) As a result of Proposition 57’s enactment, criminal proceedings in case
No. 14CM-4797A were suspended, and the case was certified to juvenile court, pursuant
to section 604.
       On December 12, 2016, the District Attorney filed a juvenile wardship petition
(§ 602) in case No. 16JQ-0087. Count 1 alleged a violation of Penal Code section 187,
subdivision (a) for the murder of Roman Aguayo, plus a gang-murder special
circumstance (id., § 190.2, subd. (a)(22)) and a gang enhancement (id., § 186.22, subd.
(b)(1)(C)). Count 2 alleged a violation of Penal Code section 186.22, subdivision (a)
(active participation in a criminal street gang), committed on the same date as the murder.
Count 3 alleged a violation of Penal Code section 245, subdivision (a)(4) (assault by
means of force likely to produce great bodily injury), together with a gang enhancement
(id., § 186.22, subd. (b)(1)(A)), arising out of an assault I.R. allegedly committed in
juvenile hall on November 20, 2016, when he was 17 years old.
       At the District Attorney’s request, and following a hearing pursuant to section 707,
former subdivision (a), I.R. was transferred to criminal court on all counts. Criminal
proceedings were reinstated in case No. 14CM-4797A, and a criminal complaint was
filed in case No. 17CM0680, charging the assault and gang enhancement that had been
alleged as count 3 in case No. 16JQ-0087. On April 26, 2017, I.R. was held to answer in
case No. 17CM0680.
       On October 4, 2017, the jury deadlocked on the murder charge in case
No. 14CM-4797A. On October 12, 2018, at or around the outset of retrial, I.R. moved to
be returned to juvenile court, based on the criminal court’s lack of jurisdiction due to the
passage and signing by Governor Edmund G. Brown, Jr., of Senate Bill No. 1391. The
motion was denied on October 16, 2018, because the new law was not yet in effect.
       On October 22, 2018, jury trial in criminal court was reset to January 7, 2019,
after insufficient prospective jurors were summoned to permit selection of a jury. On

                                             4.
January 7, 2019, I.R. asked the court to rehear his motion to dismiss the case due to lack
of jurisdiction. The court granted the rehearing request and dismissed the case.
       That same day, the District Attorney filed a juvenile wardship petition (§ 602) in
case No. 19JQ-0003, alleging I.R. committed murder with a gang-murder special
circumstance and gang enhancement (Pen. Code, §§ 186.22, subd. (b), 187, subd. (a),
190.2, subd. (a)(22); count I), and was an active participant in a criminal street gang (id.,
§ 186.22, subd. (a); count II). 5 The District Attorney requested that I.R. be transferred to
criminal court pursuant to section 707, subdivision (a). 6 I.R. opposed the transfer request
on the ground Senate Bill No. 1391, which had since taken effect, bars a minor who was
15 years old at the time of the alleged offense from being tried in adult court. The
District Attorney argued Senate Bill No. 1391 is unconstitutional and does not apply
retroactively.
       A hearing on the transfer request was held on February 14, 2019. The court ruled
that because I.R. was 15 years old at the time of the alleged murder and was apprehended
before the expiration of juvenile court jurisdiction, the court lacked jurisdiction to
transfer him to criminal court. Accordingly, it denied the District Attorney’s transfer
motion and set the matter for a jurisdictional hearing.
       The District Attorney petitioned this court for a writ of prohibition and/or
mandate, making the same arguments he made below. We stayed the juvenile court
proceedings and issued an order to show cause.


5      It is apparent these are the charges arising out of the Roman Aguayo homicide that
took place in 2014. The petition erroneously alleges both counts occurred on or about
November 20, 2016.
6      It is unclear how this request was made. In his petition for writ of prohibition
and/or mandate, the District Attorney implies the request was made as part of the
wardship petition. Although page 2 of the wardship petition contains a box that can be
checked if a transfer hearing is being requested, the box in I.R.’s wardship petition is
unchecked.


                                              5.
                                       DISCUSSION
       The District Attorney raises a number of challenges to Senate Bill No. 1391. The
first is that it is unconstitutional “because it changes Proposition 57’s provision that a
juvenile judge must determine if a juvenile should be prosecuted in criminal court;
[Senate Bill No.] 1391 is inconsistent with and does not further the voter[s’] intent in
passing Proposition 57.” (Some capitalization & boldface omitted.) As previously
stated, we rejected this claim in T.D., supra, ___ Cal.App.5th at pages ___-___ [2019
Cal.App. LEXIS ___, *___-*___] (slip opn. pp. 7-19), and we find no reason to revisit
our analysis and conclusion in that case. Accordingly, we turn to the District Attorney’s
remaining contentions. 7
                                              I
Senate Bill No. 1391 is not an unconstitutional amendment of Proposition 21.
       Proposition 21 was approved by voters at the March 7, 2000 Primary Election.
“Proposition 21 revised the juvenile court law to broaden the circumstances in which
minors 14 years of age and older [could] be prosecuted in the criminal division of the
superior court, rather than in juvenile court.” (Manduley, supra, 27 Cal.4th at p. 549.) In
some instances — such as special circumstance murder where the minor allegedly
personally killed the victim — it mandated such prosecution. (§§ 602, former subd. (b),
707, former subd. (d); see Lara, supra, 4 Cal.5th at p. 305.)
       An uncodified section of Proposition 21 provides: “The provisions of this
measure shall not be amended by the Legislature except by a statute passed in each house
by rollcall vote entered in the journal, two-thirds of the membership of each house
concurring, or by a statute that becomes effective only when approved by the voters.”
(Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 39, p. 131.) Accordingly,

7      Counsel for I.R. has not responded to the remaining claims. The District Attorney
does not argue we should deem the failure to respond to be a concession, and we would
decline to do so in any event.


                                              6.
the Legislature may amend Proposition 21’s statutory provisions without voter approval
only by a two-thirds vote of each house. (See Cal. Const., art. II, § 10, subd. (c); People
v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 568; see also In re G.Y. (2015) 234
Cal.App.4th 1196, 1206, fn. 1 (conc. opn. of Bamattre-Manoukian, J.).)
       The District Attorney says Senate Bill No. 1391 is unconstitutional because it
amended Proposition 21 without the requisite two-thirds vote of each house. To the
contrary, the provisions of Proposition 21 relating to the prosecution of 14- and 15-year-
olds were repealed by Proposition 57, which eliminated Proposition 21’s direct-filing
procedure. (People v. Superior Court (Alexander C.) (2019) 34 Cal.App.5th 994, 1004-
1005; see J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 710-711.)
       The District Attorney argues Proposition 57 modified Proposition 21 (which, he
agrees, was constitutionally allowable) by eliminating the ability of prosecutors to
directly file charges against juveniles in criminal court, and by altering the factors to be
considered in transferring a juvenile to adult court. He says, however, that Proposition 57
did not eliminate the juvenile court’s power to transfer 14- and 15-year-olds to criminal
court. This authority to transfer 14- and 15-year-olds was not enacted as part of
Proposition 21, however, but rather became law on January 1, 1995, as the result of
Assembly Bill No. 560. (§ 707, former subds. (d), (e), as amended by Stats. 1994,
ch. 453, § 9.5.) The question is whether Senate Bill No. 1391 unconstitutionally amends
Proposition 57, not Proposition 21. As we held in T.D., it does not.
                                              II
Senate Bill No. 1391 is not unconstitutionally vague.
       The District Attorney next contends Senate Bill No. 1391 is unconstitutionally
vague, because it rewrites section 707, subdivision (a) to make it unclear to victims,
defendants, the police, and prosecutors when a 14- or 15-year-old can be tried in criminal
court. Specifically, he points to section 707, subdivision (a)(2), which now provides, in
pertinent part: “In any case in which an individual is alleged to be a person described in

                                              7.
Section 602 by reason of the violation, when he or she was 14 or 15 years of age, of any
offense listed in subdivision (b), but was not apprehended prior to the end of juvenile
court jurisdiction, the district attorney or other appropriate prosecuting officer may make
a motion to transfer the individual from juvenile court to a court of criminal jurisdiction.”
The District Attorney argues that when section 707, subdivision (a)(2) is read in
conjunction with sections 607 (concerning the retention of and discharge from juvenile
court jurisdiction) and 663 (concerning when an arrest warrant can be issued for a minor),
it “creates confusing law and encourages arbitrary and discriminatory enforcement.”
This is so, he says, because 14- and 15-year-olds are unlikely to understand the “vast
difference in liability” they will face if apprehended immediately versus if they abscond
until after the expiration of juvenile court jurisdiction, and law enforcement “may be
encouraged not to solve crimes or not to catch fugitives because a minor’s liability will
be greater, if law enforcement waits until the minor is no longer eligible for juvenile court
jurisdiction.”
       “ ‘The rule is well established . . . that one will not be heard to attack a statute on
grounds that are not shown to be applicable to himself and that a court will not consider
every conceivable situation which might arise under the language of the statute and will
not consider the question of constitutionality with reference to hypothetical situations.’
[Citation.]” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1095.) The District
Attorney does not dispute that I.R. was apprehended within days of the homicide, well
before juvenile court jurisdiction expired. Thus, the District Attorney is asking us to
consider the question of constitutionality with reference to hypothetical situations,
without explaining why we should do so or how he has standing to raise the issue.
Accordingly, we reject his claim.
       We also reject his claim on the merits. “Vagueness may invalidate a criminal law
for either of two independent reasons. First, it may fail to provide the kind of notice that
will enable ordinary people to understand what conduct it prohibits; second, it may

                                              8.
authorize and even encourage arbitrary and discriminatory enforcement. [Citation.]”
(City of Chicago v. Morales (1999) 527 U.S. 41, 56.)
        We turn first to the “fair notice” prong. “It is a fundamental tenet of due process
that ‘[no] one may be required at peril of life, liberty or property to speculate as to the
meaning of penal statutes.’ [Citation.] A criminal statute is therefore invalid if it ‘fails to
give a person of ordinary intelligence fair notice that his contemplated conduct is
forbidden.’ [Citations.] So too, vague sentencing provisions may pose constitutional
questions if they do not state with sufficient clarity the consequences of violating a given
criminal statute. [Citations.]” (United States v. Batchelder (1979) 442 U.S. 114, 123.)
However, “ ‘[i]t is impossible, given the complexities of our language and the variability
of human conduct, to achieve perfect clarity in criminal statutes. Reasonable specificity
exists if the statutory language “conveys sufficiently definite warning as to the proscribed
conduct when measured by common understandings and practices.” [Citations.]’
[Citation.] ‘ “[S]tatutes are not automatically invalidated as impermissibly vague simply
because difficulty is found in determining whether certain marginal offenses fall within
their language. [Citation.]” [Citation.]’ [Citation.]” (People v. Hagedorn (2005) 127
Cal.App.4th 734, 746.) “ ‘All presumptions and intendments favor the validity of a
statute and mere doubt does not afford sufficient reason for a judicial declaration of
invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and
unmistakably appears.’ [Citation.]” (People v. Garcia (2014) 230 Cal.App.4th 763,
768.)
        Section 707, subdivision (a)(2), as amended by Senate Bill No. 1391, meets these
requirements. A 14- or 15-year-old who commits an offense listed in section 707,
subdivision (b), but who is not apprehended prior to the end of juvenile court jurisdiction,
faces potential prosecution as an adult. That the differences in liability between the
juvenile court system and the criminal court system require reference to other statutes,
does not make the statute in question unconstitutionally vague. Moreover, the standard

                                              9.
set out by the United States Supreme Court refers to the understanding of “ ‘a person of
ordinary intelligence’ ” (United States v. Batchelder, supra, 442 U.S. at p. 123), not the
understanding of a 14-year-old, as posited by the District Attorney.
       The District Attorney fares no better with respect to the arbitrary/discriminatory
enforcement prong. We categorically reject the suggestion law enforcement officers may
intentionally “not . . . solve crimes or not . . . catch fugitives” so as to increase a minor’s
liability. That a minor’s punishment may, under certain circumstances, be based on when
he or she is apprehended rather than the type of crime he or she committed, does not
make the statute vague.
                                              III
Senate Bill No. 1391 applies retroactively.
       The District Attorney observes that the text of Senate Bill No. 1391 does not
address retroactivity, and there is a presumption that laws apply prospectively only. He
recognizes that in Lara, supra, 4 Cal.5th at page 308, the California Supreme Court held
that because Proposition 57 ameliorated the possible punishment for a class of persons —
juveniles — an inference of retroactivity applied. He argues, however, that in the case of
Senate Bill No. 1391, the Legislature had the “clear option to explicitly state” the statute
applies retroactively and failed to do so. Although the District Attorney does not
expressly state the conclusion he would have us draw, it appears he is claiming Senate
Bill No. 1391 should not apply retroactively to juveniles like I.R., whose alleged offenses
were committed before the statute’s effective date.
       The District Attorney’s position lacks merit. He provides no reason whatsoever
for applying Senate Bill No. 1391 differently than Lara requires us to apply
Proposition 57: retroactively “to all juveniles . . . whose judgment was not final at the
time it was enacted.” (Lara, supra, 4 Cal.5th at p. 304.) “The Legislature, of course, is
deemed to be aware of statutes and judicial decisions already in existence, and to have



                                              10.
enacted or amended a statute in light thereof. [Citation.]” (People v. Harrison (1989) 48
Cal.3d 321, 329.)
                                              IV
The murder case against I.R. cannot be transferred to criminal court based on the
felony I.R. allegedly committed when he was age 17.

       The District Attorney contends that even if I.R. should not have been transferred
to criminal court based on the homicide alone, he — and the murder charge — were
properly transferred based on the separate felony assault he allegedly committed when he
was 17 years old. Relying on section 707.01, subdivision (a)(3), which was not changed
by Senate Bill No. 1391, the District Attorney reasons the assault case was properly
transferred to criminal court 8; murder is an offense listed in section 707, subdivision (b)
and so is a proper subject for transfer; hence, the juvenile court has jurisdiction to transfer
I.R. to adult court on all charges. We disagree.
       Section 707.01, subdivision (a)(3) provides: “(a) If a minor is found an unfit
subject to be dealt with under the juvenile court law pursuant to Section 707, then the
following shall apply: [¶] . . . [¶] (3) All petitions pending against the minor shall be
transferred to the court of criminal jurisdiction where one of the following applies: [¶]
(A) Jeopardy has not attached and the minor was 16 years of age or older at the time he
or she is alleged to have violated the criminal statute or ordinance. [¶] (B) Jeopardy has
not attached and the minor is alleged to have violated a criminal statute for which he or
she may be presumed or may be found to be not a fit and proper subject to be dealt with
under the juvenile court law.”




8     Because the assault case was transferred to criminal court post-Proposition 57, we
assume the juvenile court applied the standards set out in section 707, as amended by the
Act.


                                             11.
       Without explanation, the District Attorney asserts section 707, subdivision (b)
conflicts with section 707.01, subdivision (a)(3) and then concludes that, because murder
is a section 707, subdivision (b) offense, it “is a proper subject for transfer.”
       We recognize I.R. was 16 years of age or older at the time he allegedly committed
felony assault, rendering transfer of that offense permissible pursuant to section 707,
subdivision (a)(1), even after enactment of Senate Bill No. 1391. Additionally, murder is
a transferrable offense. (§ 707, subd. (b)(1).) I.R. cannot, however, be transferred on the
murder charge under either section 707.01 or section 707 because he was under 16 years
of age at the time he allegedly committed it.
       If a minor is found to be an unfit subject to be dealt with under juvenile court law
pursuant to section 707, then we believe section 707.01, subdivision (a)(3)(A) requires
transfer of all pending petitions where the minor was 16 or 17 years old at the time of the
offense(s) alleged in those petitions. Had the Legislature intended transfer of pending
petitions to occur whenever the minor was 16 years of age or older at the time of any
alleged offense, presumably that body would have used the indefinite “a” with regard to
“criminal statute.” 9 Because the Legislature did not, I.R. does not meet the requirement
of section 707.01, subdivision (a)(3)(A) with respect to the homicide and related charges
and allegations. Post-Senate Bill No. 1391, subdivision (a)(3)(B) of section 707.01 does
not apply to a minor under age 16 at the time of the offense, unless he or she was not
apprehended prior to the end of juvenile court jurisdiction. (§ 707, subd. (a)(1) & (2).)
I.R. does not meet this requirement. Moreover, as we have explained, I.R. is now

9       For example, in subdivision (a)(5) of section 707.01, the Legislature provided that
if, after a finding of unfitness, the minor is convicted of the offenses that were the subject
of the proceeding that resulted in the finding of unfitness, any new petition(s) alleging the
violation of any law defining a crime need not be filed in juvenile court if the minor was
16 years of age or older at the time he or she allegedly violated “a criminal statute” or he
or she allegedly violated “a criminal statute” for which he or she may be presumed or
found to be unfit to be dealt with under the juvenile court law. (§ 707.01, subd. (a)(5)(A)
& (B), italics added.)


                                              12.
alleged, post-Senate Bill No. 1391, to have violated a criminal statute for which he may
not be found to be unfit for juvenile court jurisdiction. Accordingly, section 707.01,
subdivision (a)(3)(B) requires the petition arising out of the homicide to be disposed of in
the juvenile court pursuant to the juvenile court law.
       Even aside from the grammatical construction of section 707.01, subdivision
(a)(3), prohibiting transfer of I.R.’s murder case comports with legislative intent. That
intent, as clearly expressed by Senate Bill No. 1391, is to have 14- and 15-year-olds
adjudicated — no matter the offense(s) alleged — in the juvenile court.
                                       DISPOSITION
       The order to show cause previously issued is discharged, and the petition for writ
of prohibition and/or mandate is denied. The stay issued by this court on March 4, 2019,
shall remain in effect only until this opinion becomes final in all courts in this state or the
California Supreme Court grants a hearing, whichever shall first occur; thereafter said
order is vacated and said stay is dissolved.



                                                                   _____________________
                                                                              DETJEN, J.
I CONCUR:


 _____________________
 PEÑA, J.




                                               13.
Poochigian, Acting P. J., dissenting.
       One purpose of the Public Safety and Rehabilitation Act (Proposition 57) is to
require that judges determine whether juveniles should be transferred to criminal court.
In contrast, Senate Bill No. 1391 (2017–2018 Reg. Sess.) (Stats. 2018, ch. 1012, § 1)
(Senate Bill 1391) effectively prohibits judges from determining whether certain
juveniles should be transferred to criminal court. Whatever the wisdom of each
enactment, it cannot be said that Senate Bill 1391 “further[s] the intent” (Prop. 57, § 5) of
Proposition 57. As a result, Senate Bill 1391 is unconstitutional. (See Cal. Const., art II,
§ 10(c).) I respectfully dissent from the majority’s contrary holding, which is largely
based on this court’s decision People v. Superior Court (T.D.) (F078697, Aug. 5, 2019)
___ Cal.App.5th ___ [2019 ___ Cal.App. LEXIS ___].
       I.R. argues Senate Bill 1391 is consistent with the purposes of Proposition 57.
The text of each enactment indicates otherwise.
       A.     Enumerated Purposes of Proposition 57
       In section 2, Proposition 57 provides:

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

       “1.    Protect and enhance public safety.

       “2.    Save money by reducing wasteful spending on prisons.

       “3.    Prevent federal courts from indiscriminately releasing prisoners.

       “4.    Stop the revolving door of crime by emphasizing rehabilitation,
       especially for juveniles.

       “5.     Require a judge, not a prosecutor, to decide whether juveniles should
       be tried in adult court.”
       The enumerated intent to “require a judge, not a prosecutor, to decide whether
juveniles should be tried in adult court,” has two clear components. First, the phrasing
“Require a judge … to decide whether juveniles should be tried in adult court” means
exactly what it says. The intent of Proposition 57 is to “require” a particular person (i.e.,
a judge) to make a particular decision (i.e., whether a juvenile should be tried as an
adult). Second, the phrase, “not a prosecutor” embodies an intent to deny prosecutors the
power to ultimately decide whether juveniles should be tried in adult court.
       Senate Bill 1391 clearly conflicts this enumerated intent. Under Senate Bill 1391,
neither a prosecutor nor a judge, may decide whether 14- and 15-year-old juveniles may
be tried in adult court. Instead, the Legislature has made the decision for 14- and 15-
year-old juveniles. 1 This is plainly in conflict with Proposition 57’s stated purpose of
requiring a judge to decide whether juveniles should be tried in adult court. (Prop. 57, §
2.)
       Other courts of appeal have concluded otherwise by interpreting item 5 to evince
only an intent to remove power from the prosecutor, while minimizing the intent to
require the power be exercised by a judge. (See, e.g., People v. Superior Court (K.L.)
(2019) 36 Cal.App.5th 529, 539 [“This language does not suggest a focus on retaining the
ability to charge juveniles in adult court so much as removing the discretion of district
attorneys to make that decision.”]; see also People v. Superior Court (T.D.), supra, ___
Cal.App.5th at pp. ___-___ [2019 ___ Cal.App. LEXIS ___, *___-*___] (slip opn. at
pp. 13-14).) Nothing in section 2 or the substantive provisions of Proposition 57 support
such a reading.
       Because the fifth enumerated intent of Proposition 57 is so clearly in conflict with
Senate Bill 1391, we need not delve into the abstract, policy-laden questions of whether
Senate Bill 1391 also conflicts with Proposition 57’s other goals of enhancing public
safety and saving money. (See Prop. 57, § 2.)




       1  Unless the juvenile was not apprehended prior to the end of juvenile court
jurisdiction.


                                              2
       B.     Reasonably Inferable Purposes of Proposition 57
       However, our analysis does not end with the general, express statements of intent
in Proposition 57. (See Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1256-
1257.) We must examine the enactment as a whole to derive its purposes. (See id. at
p. 1257.)
       In that vein, I.R. argues the goal of Proposition 57 was to “enlarge the number of
minors who could potentially remain in the juvenile justice system.” And, the argument
goes, since Senate Bill 1391 further increases the number of juveniles who would remain
in the juvenile justice system, it necessarily furthers the intent of Proposition 57.
However, this overly-simplistic approach ignores the fact that Proposition 57’s purposes
are multi-faceted.
       Proposition 57 may have intended to reduce the number of youths to be prosecuted
as adults … but only up to a point. Proposition 57, like any enactment, was written to
“go so far and no further.” (Michigan v. Bay Mills Indian Cmty. (2014) 572 U.S. 782,
794.) “[S]tatutes have stopping points as well as general objectives, and how far to go in
pursuit of those objectives is integral to the legislative choice. [Citation.]” (NLRB v.
HH3 Trucking, Inc. (7th Cir. 2014) 755 F.3d 468, 471.) “[L]imitations upon a law’s
scope are no less a part of its “purpose” than its substantive authorizations. [Citation.]”
(Rapanos v. United States (2006) 547 U.S. 715, 752.)
       Proposition 57 sought to find the balancing point of several disparate objectives,
including enhancing public safety, saving money, and emphasizing rehabilitation. The
balance it struck is the result of both considerations of leniency and rehabilitation, as well
as various considerations pushing in the other direction. We cannot cherry-pick a single
goal and conclude any enactment advancing that singular goal of leniency towards
juveniles must also further the multi-faceted purposes of Proposition 57, regardless of
how contrary that enactment may be to Proposition 57’s other purposes.



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       Surely, one purpose of Proposition 57 is to emphasize rehabilitation for juveniles.
(Prop. 57, § 2.) But another purpose is to require that judges determine whether
juveniles – including 14 and 15 year olds – should be tried as adults. (Ibid.) We cannot
elevate the former purpose above the latter, because there is “nothing in Proposition 57 to
suggest voters intended the Act to extend as broadly as possible for one purpose but not
for another.” (People v. Superior Court (T.D.), supra, ___ Cal.App.5th at p. ___ [2019
___ Cal.App. LEXIS ___, *___] (slip opn. at p. 11).)
       In a related contention, some have observed that “the practice of allowing certain
14 and 15 year-olds to be prosecuted in criminal court is not an ‘actual change[]’ wrought
by Proposition 57, but a continuation of a prior practice.” (People v. Superior Court
(Alexander C.) (2019) 34 Cal.App.5th 994, 1002; see also People v. Superior Court
(T.D.), supra, ___ Cal.App.5th at p. ___ [2019 ___ Cal.App. LEXIS ___, *___] (slip opn.
at p. 16).) But the question is not whether Proposition 57 was the first law to permit
prosecution of 14 and 15 year olds as adults. Rather, the question is whether the
continuation of that prior practice embodies an intent of Proposition 57. If so, then
Senate Bill 1391’s dis-continuation of that same practice cannot be said to further the
intent of Proposition 57.
       And there can be no doubt that Proposition 57 did intend to preserve the prior
practice of permitting some 14 and 15 year olds to be tried as adults. Proposition 57
made affirmative statutory tweaks to ensure that, notwithstanding the closely related
changes it made to juvenile law, 14 and 15 year olds could still be transferred to criminal
court and prosecuted as adults. (Prop. 57, § 4.2 [altering statutory language to read
“when he or she was 14 or 15 years of age” in subdivisions (a) and (b) of section 707].)
Thus, Proposition 57 was not oblivious to its effect of preserving the prior practice, but
rather went out of its way to ensure those juveniles could still be prosecuted as adults in
some circumstances. Senate Bill 1391 is in direct conflict with that intent.



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       Because Senate Bill 1391 clearly does not “further” (Prop. § 57, § 2) the
enumerated and inferable intents of Proposition 57, it is unconstitutional under article II,
section 10(c) of the California Constitution.
       I respectfully dissent.


                                                         ______________________
                                                            Poochigian, Acting P. J.




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