Filed 5/16/19
                    CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                             DIVISION TWO

In re JAMES ROBINSON, JR.,          B293216

                on Habeas Corpus.   (Los Angeles County
                                    Super. Ct. No PA007095.)




     ORIGINAL PROCEEDINGS on petition for writ of habeas
corpus. Superior Court of Los Angeles County, William C. Ryan,
Judge. Order to show cause discharged.

      Eric R. Larson, under appointment by the Court of Appeal,
for Petitioner and Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, James W. Bilderback II, Supervising Deputy
Attorney General and Joseph P. Lee, Deputy Attorney General,
for Respondent.
                            ******
       In 2016, the California voters approved Proposition 66, the
Death Penalty Reform and Savings Act of 2016. Among other
things, Proposition 66 altered the procedures for collateral review
of convictions resulting in a sentence of death. (Pen. Code,
§§ 1509, 1509.1.)1 This case presents a threshold question: Do
Proposition 66’s procedures for appealing the denial of a petition
for a writ of habeas corpus from the superior court to the Court of
Appeal apply to a petition originally filed with the Supreme
Court prior to Proposition 66’s enactment when the Supreme
Court first referred part of the case to the superior court for fact
finding and then, after Proposition 66’s enactment, transferred
the outstanding issues to the superior court “for adjudication”?
We conclude that Proposition 66’s procedures apply and that the
Supreme Court invoked those procedures in transferring the
outstanding issues to the superior court for adjudication.
Accordingly, this appeal from the superior court’s denial of the
petition is jurisdictionally proper.
         FACTS AND PROCEDURAL BACKGROUND
I.     Facts and Direct Review of Conviction
       In 1993, a jury found James Robinson, Jr. (defendant)
guilty of two counts of first degree murder (§ 187, subd. (a)) and
one count of second degree robbery (§ 211). The jury also found
true two special circumstances rendering defendant eligible for
the death penalty—namely, that he committed multiple murders




1     All further statutory references are to the Penal Code
unless otherwise indicated.




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and did so in the course of a robbery.2 (§ 190.2, subds. (a)(3) &
(a)(17).) The first jury hung during the penalty phase, but a
second jury empaneled to re-hear the penalty phase returned a
sentence of death. The California Supreme Court affirmed
defendant’s convictions and sentence (People v. Robinson (2005)
37 Cal.4th 592, 655) and the United States Supreme Court
denied certiorari (Robinson v. California, 549 U.S. 953 (2006)).
II.    Collateral Review
       A.    Adjudication of Petition for Writ of Habeas
Corpus
       In February 2006, defendant filed a “shell” or placeholder
petition for a writ of habeas corpus with the California Supreme
Court. In October 2007, he filed an amended petition alleging 29
claims for relief.
       In October 2014, the Supreme Court issued an order to
show cause why habeas corpus relief should not be granted on
three claims of juror misconduct. Following the receipt of further
briefing, the Court issued two orders—one in August 2015 and a
second in September 2015—referring the four claims to Los
Angeles Superior Court Judge William C. Ryan to conduct an
evidentiary hearing and, thereafter, to issue a report and
recommendation to the Supreme Court on how to resolve them.
       The superior court held the evidentiary hearing over
several days between September 2016 and May 2017.




2     The jury also found true the allegation that defendant
personally used a firearm for all three crimes (§ 12022.5,
subd.(a)), and the court imposed additional prison time for these
enhancements. However, they are of no moment to this appeal.




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       In September 2018, the superior court issued a 70-page
written order concluding that none of defendant’s claims of juror
misconduct warranted relief.
       B.      Proposition 66
       The voters enacted Proposition 66 on November 8, 2016. It
became effective on October 25, 2017, when our Supreme Court’s
decision in Briggs v. Brown (2017) 3 Cal.5th 808 (Briggs) became
final.
       On February 14, 2018—that is, after the superior court
concluded the evidentiary hearing but before it issued any
ruling—the Supreme Court, “[o]n [its] own motion,” issued an
order (1) “vacat[ing]” the two prior orders referring the four juror
misconduct claims to Judge Ryan, (2) “transfer[ring]” those
misconduct claims “to the Superior Court . . . of Los Angeles” “for
adjudication,” and (3) “den[ying]” “[a]ll remaining claims in the
petition . . . on the merits.”
       C.      Appeal
       Following the superior court’s denial of relief on the three
outstanding juror misconduct claims, defendant filed a timely
notice of appeal “seek[ing] review of and appeal[ing]” the superior
court’s order “pursuant to . . . [section] 1509.1[].”
       Through two orders, we solicited briefing from the parties
on the questions of (1) whether the superior court’s order is
appealable under section 1509.1, and (2) whether the February
2018 transfer order was made pursuant to section 1509 or
instead the Supreme Court’s inherent authority.
                            DISCUSSION
       Proposition 66 changed the procedures for collateral review
for persons sentenced to death in California. Prior to Proposition
66, defendants sentenced to death—so-called “capital




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defendants”—filed their petitions for writs of habeas corpus
directly with the Supreme Court (Briggs, supra, 3 Cal.5th at p.
824 [“Under current practice, habeas corpus proceedings are
initiated in th[e Supreme Court]”; see generally Supreme Court
Policies Regarding Cases Arising from Judgments of Death,
Policy 3 (2001 ed.) [so designating]; e.g., In re Hawthorne (2005)
35 Cal.4th 40, 47.) Proposition 66 changed the law by declaring a
new, “exclusive” procedure for capital defendants to use in
adjudicating their habeas petitions—namely, they must file those
petitions in the superior court that imposed their death sentence
(§ 1509, subd. (a)), with a right to appeal any denial of relief to
the Court of Appeal (§ 1509.1, subd. (a)), and thereafter to seek
review before the Supreme Court (Briggs, at p. 825).
       So which procedures apply to habeas petitions filed with
the Supreme Court before Proposition 66, but which the Supreme
Court has purported to “transfer” to the superior court for
“adjudication” after Proposition 66? Answering this question
turns on two subsidiary questions: (1) Does Proposition 66 itself
allow for petitions filed before its enactment to be subject to its
procedures, and, if so, (2) did the Supreme Court’s February 2018
transfer order in this case invoke those procedures? We review
both questions de novo. (People v. Superior Court (Sahlolbei)
(2017) 3 Cal.5th 230, 234 [de novo review of statutes]; People v.
Landon White Bail Bonds (1991) 234 Cal.App.3d 66, 76 [de novo
review of court order].)
I.     Does Proposition 66 Apply to Petitions Filed by
Capital Defendants Prior To Its Enactment?
       We conclude that Proposition 66’s procedures can be
applied to habeas petitions filed by capital defendants prior to the
enactment of Proposition 66. We reach this conclusion for two
reasons.




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       First, the plain language of Proposition 66 all but dictates
this result. The provision authorizing appeals to this court,
section 1509.1, applies by its terms to “the decision of a superior
court on an initial petition under section 1509.” (§ 1509.1, subd.
(a).) Section 1509, in turn, says that it “applies to any petition for
writ of habeas corpus filed by a person in custody pursuant to a
judgment of death.” (§ 1509, subd. (a), italics added.) We know
that section 1509 reaches petitions filed before Proposition 66’s
enactment because the statute specifically contemplates what to
do to pre-Proposition 66 petitions: “If a habeas corpus petition is
pending on the effective date of this section, the court may
transfer the petition to the court which imposed the sentence.”
(§ 1509, subd. (g).) Where, as here, the statute’s plain text
answers the question at issue, we need not—and, indeed,
cannot—look any further. (City of Montebello v. Vasquez (2016) 1
Cal.5th 409, 419.)
       Second, applying Proposition 66’s procedures to pending
petitions also accords with the Proposition’s purpose. (Huff v.
Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745,
755 [courts may “consider[] legislative history . . . where the text
of a statute is clear . . . to confirm the interpretation already
apparent from the plain language”]; McMillin Albany LLC v.
Superior Court (2018) 4 Cal.5th 241, 256 [so noting].) Proposition
66 was enacted to “[r]eform the existing inefficient appeals
process for death penalty cases,” in part by removing the backlog
of habeas petitions pending before the Supreme Court by
redistributing those petitions to the pertinent superior courts
around the state for orderly disposition. (Prop. 66, § 2, Finding
6.) This purpose is furthered by subjecting all pending petitions
to the Proposition 66’s new process, not just some of them.




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       Defendant resists this conclusion. Specifically, he argues
that section 1509.1 only provides a right to appeal to the Court of
Appeal for “the decision of a superior court on an initial petition
under section 1509.” (§ 1509.1, subd. (a), italics added.) An
“initial petition,” defendant continues, means a petition filed
originally in the superior court. We reject this proffered
construction of section 1509.1. To begin, it would render
superfluous the portions of section 1509 providing for the transfer
of pending petitions to the superior court; after all, if Proposition
66 only applied to post-enactment petitions, there would be no
need to transfer earlier filed petitions. Our job is to give effect to
all of a statute’s provisions, not just some of them. (People v.
Pennington (2017) 3 Cal.5th 786, 797.) Further, the phrase
“initial petition” already has a well-established meaning separate
and apart from its temporal relationship to the enactment of
Proposition 66: As Proposition 66 itself and pre-Proposition 66
case law both acknowledge, an “initial [habeas] petition” means
the first petition filed by a capital defendant and exists in
contradistinction to subsequent and “successive” petitions that
are subjected to greater procedural hurdles than a defendant’s
“initial petition.” (§ 1509.1, subd. (c) [requiring certificate of
appealability before capital defendant may appeal a “successive
petition”]; In re Reno (2012) 55 Cal.4th 428, 456-458 [explaining
differences between “initial” and “successive” petitions, and
erecting greater procedural hurdles for successive petitions].)
       Because the habeas petition before us is defendant’s first, it
is an “initial petition.” On that basis, it is statutorily subject to
Proposition 66’s transfer provisions.




                                  7
II.    Did the Supreme Court Invoke Proposition 66’s
Procedures So As To Render Appeal To This Court
Appropriate?
       We conclude that the Supreme Court’s February 2018 order
invoked Proposition 66’s transfer provisions and, in so doing, sent
what was left of defendant’s petition to the superior court for
final adjudication (and, subsequently, for appeal to this court).
As noted above, Proposition 66 grants the Supreme Court
discretion whether to transfer pending habeas petitions to the
superior court. (§ 1509, subd. (g) [noting that the court “may”
transfer a pending petition]; see also id., subd. (a) [“A petition
filed in any court other than the court which imposed the
sentence should be promptly transferred to that court unless good
cause is shown for the petition to be heard by another court.”].)
This power to transfer the entire case ostensibly encompasses the
lesser-power to transfer just a portion of the case. (Civ. Code,
§ 3536 [“The greater contains the less[er].”]; Peatros v. Bank of
America NT & SA (2000) 22 Cal.4th 147, 177 [so noting].) Here,
however, the plain text of the Supreme Court’s February 2018
order vacated the prior referral order, denied all of the non-
referred claims, and transferred the sole outstanding referred
claims to the superior court “for adjudication.” On its face, this
divested the Supreme Court of any further connection with the
petition.
       Defendant also resists this conclusion. Specifically, he
argues that the Supreme Court, in February 2018, merely
transferred the case “[o]n [its] own motion” and did not explicitly
reference Proposition 66 or section 1509. What matters, however,
is what the February 2018 order did—not whether it used any
magic words. And what it did was revoke the prior referral order
and transfer the sole remaining claims in the petition to the




                                8
superior court for “adjudication”—and hence, resolution. The
Court reserved no further jurisdiction for itself, as it has done in
other cases. (In re Zamudio Jimenez (order to show cause issued
March 21, 2018, S167100, VA036217); In re Hawthorne (order to
show cause issued May 16, 2018, S176951, BA137272); In re
Butler (order to show cause issued August 15, 2018, S178123,
NA019605; In re Watson (order to show cause issued December
12, 2018, S167108, A653246).) Thus, while defendant is correct
that the Supreme Court in other cases expressly cited Proposition
66 or section 1509 in its transfer orders, its failure to do so here is
of no moment.




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                        DISPOSITION
     The order to show cause is discharged.
             CERTIFIED FOR PUBLICATION.




                                     ______________________, J.
                                     HOFFSTADT

We concur:


_________________________, Acting P.J.
ASHMANN-GERST


_________________________, J.
CHAVEZ




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