Proposition 57: November 8, 2016, General Election Analyzed by Garrick Byers, Statute Decoder November 9, 2016 Table of Contents

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1 Proposition 57: November 8, 2016, General Election Analyzed by Garrick Byers, Statute Decoder November 9, 2016 Table of Contents Summary Juveniles Prisoners Regulations to be written by CDCR Detailed Analysis... 4 Section 1 Title Section 2 Purpose and Intent Section 3. Adds Section 32 to California Constitution Article 1, on state prisoners:... 4 Discussion of Section The magnitude of P57 s effects would depend, in the first instance, on the regulations CDCR must promulgate What is parole consideration?... 6 What is a Nonviolent Felony? Maybe Not What You Think What is the full term, what is the primary offense, and what is excluded from calculating the full term?... 8 What would be the length of parole granted pursuant to P57 [ P57 parole ]?... 9 What would be the conditions of P57 parole?... 10

2 What would happen to people who violate their P57 parole? What role might the Legislature have concerning P57 parole? When would the new parole consideration begin? What About County Jail Felony Sentences Under Pen. Code 1170, subd. (h)? What Would Happen to Conduct Credits? Section 4. Juvenile Transfer Process replaces direct filing and fitness hearings Section 4.1. Repeals mandatory direct filing in adult court Section 4.2. Repeals the prosecutor s discretionary authority to direct file specified crimes by juveniles of specified ages, in adult court; and creates the Judicial Transfer Process Discussion of Section No more direct filing in adult court The Judicial Transfer Process replaces the current fitness process Does the new Judicial Transfer Process apply to Juveniles Already Directly-Filed Upon in the Criminal Division of the Superior Court? Section 5. Amendments: Limits what can be amended, and how to amend Section 6 Severability Section 7 Conflicting initiatives Section 8 Proponent Standing Section 9 Liberal Construction

3 Summary 1. Juveniles. Eliminates direct filing by the prosecutor in the general criminal court. Creates a Judicial Transfer Process by which prosecutors can file a motion for transfer to general criminal court the case of a juvenile age 16 or 17 accused of any felony; and the case of a juvenile age 14 or 15 accused of a 707(b) offense. This replaces, while preserving most features of, the fitness process; the main difference: there is no presumption of unfitness. 2. Prisoners By California Constitutional amendment, (1) makes eligible for parole consideration prisoners convicted of nonviolent offenses, when the full term for the primary offense is completed, exclusive of enhancements, consecutive sentences, or alternative sentences; and (2) gives CDCR authority to award credits for good behavior and approved rehabilitative or educational achievements. 3. Regulations to be written by CDCR. Requires CDCR to write regulations to implement the new parole consideration and credits authorizations. As the Legislative Analyst wrote in the Official Voter Information Guide 1 (page 56), the magnitude of [Proposition 57 s 2 ] effects would depend on how certain provisions in the measure are interpreted and implemented. That interpretation and implementation will begin with these regulations, which are yet to be promulgated. The possible role for the legislature in implementation is also discussed. 1 Hereafter, Voter Information Guide. The full title is California General Election November 8, 2016 Official Information Guide. At this writing it has not been mailed out, but is available at 2 Hereafter, generally, P57. 3

4 Detailed Analysis Section 1 Title. This measure shall be known and may be cited as The Public Safety and Rehabilitation Act of [3] Section 2 Purpose and Intent. [The] purpose and intent [is] to: 1. [Enhance] public safety. 2. Save money. 3. Prevent federal courts from releasing prisoners. 4. emphasi[ze] rehabilitation, especially for juveniles. 5. Require a judge, not a prosecutor, to decide whether juveniles should be tried in adult court. Section 3. Adds Section 32 to California Constitution Article 1, on state prisoners: (a) : (1) Parole Consideration: Any person convicted of a nonviolent felony and sentenced to state prison shall be eligible for parole consideration after completing the full term for [the] primary offense. (A) [4]. the full term for the primary offense means the longest term of imprisonment imposed for any offense, excluding [any] enhancement, consecutive sentence, or alternative sentence. (2) Credit Earning: [CDCR] shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements. 3 Statutory text of P57 is in this typeface. New text is in italics. Deleted text is in strikethrough. 4 There is no (B). 4

5 (b) [CDCR] shall adopt regulations in furtherance of these provisions, and the Secretary of [CDCR] shall certify that these regulations protect and enhance public safety. Discussion of Section 3. The magnitude of P57 s effects will depend, in the first instance, on the regulations CDCR must promulgate. Those regulations will surely answer many of the questions that are discussed below, such as how P57 will effect conduct credits, what this parole consideration will consist of, the length of this parole, and the penalties for its violation. The dissent in Brown v. Superior Court (Calif. Dist. Atty s Assoc.) (June 6, 2016) 63 Cal.4th 335 (holding that P57 s promulgation before placement on the ballot complied with recent amendments to the initiative process) (Brown) pointed out that [The initiative] does not explain how this new constitutional provision would interact with the detailed provisions [on these subjects that] the Legislature has enacted. The dissent also said [The] constitutional provision would seem to displace the statutory scheme [on conduct credits]. The dissent then asked: But is [that] the intent[?]. (Id at page 361, Chin, J., dissenting.) Despite those questions and concerns, it seems safe to predict that CDCR s regulations would adhere closely, but perhaps not entirely, to the existing statutes. In promulgating these regulations, CDCR will be guided by the purposes and intent of P57 s section 2, discussed above, and by the requirement in this new constitutional provision, that the CDCR Secretary shall certify that these regulations protect and enhance public safety. For an instructive case on how courts review CDCR-written regulations see In re Cabrera (2012) 55 Cal.4th 683 (Upholding CDCR s interpretation and application of its own regulation concerning validation of gang membership. As a general matter, courts will be deferential to government agency interpretations of their own regulations, particularly when the interpretation involves matters within the agency's expertise and does not plainly conflict with a statutory mandate. [page 690, internal quotation marks and citation omitted.]) Note, however, that P57 s parole consideration will not affect anyone convicted of a single nonviolent felony sentenced pursuant to Penal Code section 1170 (i.e., who did 5

6 not receive an alternative sentence), without any enhancements. Those people will be released on normal parole or on postrelease community supervision at the end of their full term, or before that because their term is likely to be reduced by conduct credits. What is parole consideration? Parole consideration has not been applicable to Determinate Sentencing Law (DSL) prisoners ever since the DSL, headed by Penal Code section 1170, became the main sentencing law in California in That is because, heretofore, DSL prisoners are automatically placed on parole, or on postrelease community supervision, after completion of their prison term. Parole consideration, ever since 1977, has applied only to Indeterminate Sentencing Law (ISL) prisoners, that is, almost entirely, to those serving an indeterminate life term, such as 15 or 25 years to life. (See Pen. Code 1168.) Because CDCR will be promulgating the regulations to implement P57, perhaps the best guide to what P57 s parole consideration would be is CDCR s current regulations for ISL parole consideration. Those are found mainly at California Code of Regulations, title 15, Division 2, Chapter 3, Article 6, titled Parole Consideration for ISL Prisoners, sections 2300 to 2310, and Article 7, titled Parole Consideration Criteria and Guidelines for ISL Prisoners, sections 2315 to Some of the sections in Article 6, Parole Consideration. are: 2301 Information Considered 2303 Prisoner Rights 2304 to 2306: Initial Parole Hearing; Progress Hearing; and Subsequent Parole Hearing Hearing for Prisoners with New Criminal or Disciplinary Charges Pending Some of the sections in Article 7, Parole Consideration Criteria and Guidelines. are: 2316 Unsuitability Criteria 2317 Fixing a Parole Date, Criteria 6

7 2320 Base period of confinement. [Perhaps there will be a regulation about calculation of the full term of imprisonment for the primary offense. GB.] 2322 to 2324 Adjustment for Preconviction, Commitment, and Postconviction factors Weapons What is a Nonviolent Felony? Maybe Not What You Think. P57 grants parole consideration to persons convicted of a nonviolent felony. The Legislative Analyst, in the Voter Information Guide (page 56) points out that neither P57, nor current law, defines nonviolent felony. The Legislative Analyst assumes a nonviolent felony offense would include any felony offense that is not specifically defined in statute as violent. Violent felonies are listed and defined in Penal Code section 667.5, subdivision (c). Although the Legislative Analyst s assumption seems safe, the dissent in Brown, supra, said the absence of a definition [of nonviolent felony] is troublesome. Does [Pen. Code 667.5, subd. (c)] apply? Can a statute define a constitutional term? What if the Legislature amends the list? What happens if the term nonviolent felony offense is found to be void for vagueness? Would that mean that all inmates would be eligible for parole? (Id.; 63 Cal.4th at 360 [Chin, J., dissenting].) The Argument Against Proposition 57 in the Voter Information Guide (page 59), states that P57 deems the following crimes non-violent and makes the perpetrators eligible for EARLY PAROLE and RELEASE Rape by intoxication Rape of an unconscious person Assault with a deadly weapon Arson [and 11 other crimes, plus others unnamed]. Several of the listed crimes are on the list of serious felonies at Penal Code section , subdivision (c). That Argument Against lends force to the conclusion that nonviolent felony does mean any felony not on the violent felony list in Penal Code section 667.5, subdivision (c). (See People v. Arroyo (2016) 62 Cal.4th 589, 593 [ When the language is ambiguous, we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet. (Citations and internal quote marks omitted)].) 7

8 What is the full term, what is the primary offense, and what is excluded from calculating the full term? P57 s new Constitutional section, at subdivision (a)(1) says the person is eligible for parole consideration after completing the full term for his or her primary offense. The only definition for that phrase is found in paragraph (A) of subdivision (a)(1): the full term for the primary offense means the longest term of imprisonment imposed for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence. Does this mean full term without considering any reduction for conduct credits? The phrase full term has been used in the conduct credit context in at least two cases. People v. Sage (1980) 26 Cal.3d 498, 509 fn 7, noted an amendment to Penal Code section the extended the right to earn conduct credit to reduce [a pre-trial detainee s] full term. And People v. Goodloe (1995) 37 Cal.App.4th 485, , quoted an uncodified section of bill that enacted Penal Code section , denying conduct credits to recidivists of certain severe crimes, that the Legislature declares [such recidivists] should serve the full terms of [their] sentences without benefit of goodtime or worktime credits. Although primary offense seems well defined by subparagraph (A) of the new section, the dissent in Brown, supra, was not so sure [Pen. Code , subd. (a)] refer[s] to a principal term and a subordinate term. [It] appears that what is meant [by full term in this initiative] is the equivalent of the principal term [referred to in Pen. Code , subd. (a)]. [But], against appearances, full term for the primary offense [might] mean[ ] something different. (Ibid, 63 Cal.4th at 360, Chin, J., dissenting.) The calculation of the full term for the primary offense is done excluding the imposition of an enhancement, consecutive sentence, or alternative sentence. Enhancement is defined at, inter alia, California Rules of Court, rule 405(3): Enhancement means an additional term of imprisonment added to the base term. Consecutive sentence is the subject of Penal Code section Alternative sentence surely refers to what is more commonly called in case law an alternate sentence or an alternate sentencing scheme; A statute that requires a sentence that is increased over the normal DSL sentence, but that is not an enhancement, 8

9 that is, is not simply an additional term added to the base term, is often said to be an alternate sentencing scheme. The most well-known alternate sentencing scheme, and the one that might most often be applicable in a P57 case, is the three strikes law, at Penal Code section 667, subdivisions (b) to (i) and [The] Three Strikes law requires the minimum term for an indeterminate term [where the person is convicted of a new felony, with one strike prior ] to be twice the term otherwise provided as punishment for the current felony conviction. [This is not] an enhancement, which provides for an additional term. (People v. Jefferson (1999) 21 Cal.4th 86, 101 [italics in original].) A person convicted of a current nonviolent felony, with a prior strike (probably even a prior violent offense) would, under P57, apparently be eligible for parole consideration after serving the normal DSL term for the current conviction, even though the court had imposed double that term because of the strike prior. The Argument Against [P57] in the Voter Information Guide (page 59) points this out: [P57] effectively overturns key provisions of [inter alia] 3-Strikes and You re Out. What would be the length of parole granted pursuant to P57 [ P57 parole ]? P57 does not say. Presumably this would be specified in the regulations CDCR would promulgate. While it seems safe to predict that those regulations will closely resemble existing statutes and regulations, it is more difficult to predict how CDCR s regulations might reconcile the existing statutes and regulations governing length of parole, on the one hand, and, on the other, length of postrelease community supervision. P57 also contains no guidance, other than the general purposes and intent section discussed above, and the requirement that its regulations protect public safety, on whether CDCR s new regulations would lengthen parole, or limit an early end to parole, or otherwise consider any enhancements, consecutive sentences, or alternative sentences that the person would not be serving in custody. Under current law, state prisoners are released on either parole or on postrelease community supervision (PRCS). (Pen. Code , subds. (a), (b) and (i); see also 3451, subds. (a) and (b), to like effect.) Prisoners who would be eligible for P57 parole consideration would comprise a mix of those who would otherwise be released on parole, and those who would otherwise have be released on postrelease community supervision. 9

10 Here are two examples. First, if nonviolent felony includes felonies that are serious under Penal Code section , subdivision (c), those persons could become eligible for P57 parole, but would otherwise be released on parole pursuant to Penal Code section , subdivision (a)(1). And, second, a person imprisoned for a grand theft of over $950 could become eligible or P57 parole but would otherwise be released on postrelease community supervision underpenal Code section , subdivision (b). [Any] inmate subject to [Penal Code] section must be on parole for the length of time specified in Penal Code section 3000, subdivision (b). (Penal Code section 3000, subdivision (b), introductory sentence.) But P57 does not plainly state whether a person released on P57 parole who would otherwise have been released pursuant to section is subject to that section. Whether the person is subject to Penal Code section will probably not matter if CDCR s regulations specify that P57 parole for such persons lasts for the same length of time as the corresponding parole pursuant to sections 3000 and But if those lengths of time differ, this may become a subject of litigation. For most nonviolent, nonserious, and non PC 290 (sex offender) registrants [this group is often waggishly called the non-non-nons ], parole lasts for three years. (Pen. Code 3000, subdivision (b)(2).) For others it can be much longer. In addition, possible early discharge from parole is governed by Penal Code section A person released on PRCS is supervised for the length of time specified in Penal Code section 3456, which can be as low as six months and as high as three years. P57 does not state that a person released on P57 parole who would otherwise have been released on PRCS is subject to Penal Code section That will probably not matter if CDCR s regulations specify that P57 parole for such persons lasts for the same length of time as the corresponding PRCS would list. But if those lengths of time differ, this may become a subject of litigation. What would be the conditions of P57 parole? P57 does not say. Presumably these would be specified in the regulations CDCR would promulgate. While it seems safe to predict that those regulations will closely resemble existing statutes and regulations, it is more difficult to predict how CDCR s regulations might 10

11 reconcile the existing statutes and regulations governing conditions of parole, on the one hand, and, on the other, conditions of postrelease community supervision. As discussed above, people eligible for P57 parole consideration would comprise a mix of those who would otherwise be released on parole or on postrelease community supervision. Numerous sections in the Penal Code, such as section , subdivisions (c) to (g), and many other sections, establish many conditions, including geographic placement of release. (Penal Code section 3003.) Numerous CDCR regulations in California Code of Regulations, title 15, Div. 2 Parole Supervision, sections 2510 et seq., also govern parole conditions. Section 2512, for example, is titled General Conditions of Parole and section 2513 is titled Special Conditions of Parole. Postrelease Community Supervision conditions are established mainly be Penal Code sections 3453 (listing some 14 conditions), and 3454 (listing some additional conditions in certain cases). What would happen to people who violate their P57 parole? P57 does not say. Presumably violation penalties would be specified in the regulations CDCR would promulgate. Non-custodial consequences, such as additional and appropriate conditions of supervision, including rehabilitation and treatment services, incentives for compliance, and sanctions for parole violations, are probably well within CDCR s administrative authority, and, this paper assumes, they are not controversial. Custodial sanctions, however, are controversial. Penal Code section 3056 governs custodial consequences for parolees generally. Despite the concern of the dissent in Brown, supra, that giving CDCR constitutional authority to write parole regulations might override some statues, such as those for conduct credit, it appears that section 3056 will apply to P57 parole. Although the question is subject to litigation, this paper will assume that Penal Code section 3056 does apply to P57 parole. Under Penal Code section 3056, subdivision (a), the parolee: 11

12 Cannot be returned to prison for a violation of parole (with certain exceptions that will not arise in P57 parole). Can be housed in county jail while awaiting revocation proceedings Can receive a county jail sentence of up to 180 days for violation of parole (with an exception that will not arise in P57 parole). Section 3056, subdivision (a), also provides for possible release by the court of a parolee who is in custody on a suspected violation. Unless otherwise serving a period of flash incarceration, whenever a parolee has been arrested, with or without a warrant or the filing of a petition for revocation, the court may order the [parolee s] release. Note the reference in the above quote to flash incarceration. This is defined at Penal Code section , subdivision (e), as a period of detention in a jail due to a violation of parole [of up to] 10 consecutive days. Under Penal Code section , subdivision (c), Periods of flash incarceration, are encouraged as one method of punishment for violations of a parolee's conditions of parole. The question has already been raised, however, if P57 parolees are subject to Penal Code section , particularly those who, had they not been release on P57 parole, would have been released on PRCS. People on PRCS are also subject to flash incarceration for violations. (See, e.g., Penal Code section 3454, subdivision (c).) But obviously, P57 parole is not PRCS. Accordingly, the authority for flash incarceration of a P57 parolee is not clear, and subject to litigation and challenge. They may be an appropriate subject for legislative action, as discussed below. Under Penal Code section , subdivision (a), [During] the period of supervision of a person (5) subject to revocation of parole supervision pursuant to Section , if any probation officer, parole officer, or peace officer has probable cause to believe that the supervised person is violating any term or condition of his or her supervision, the officer may, without warrant or other process rearrest the supervised person and bring him or her before the court or the court may, issue a warrant for his or her rearrest. Upon rearrest, or issuance of a warrant the court may revoke [person s] supervision. However, the court shall not terminate parole. The remainder of Penal Code section discusses the process by which the court may modify or revoke (but not terminate) parole. 12

13 Note, however, this this applies to a person subject to revocation of parole supervision pursuant to Section As was discussed above, it is not clear if a P57 parolee is a person subject to Section Accordingly, this is another area that might be particularly appropriate for swift legislative action. What role might the Legislature have concerning P57 parole? P57 does not assign the legislature a role. The new constitutional section does not say, for example, that the legislature shall implement it, i.e., by legislation. And yet, as shown by the discussion above about violation penalties, legislative action might be appropriate. The Legislature cannot itself amend the California Constitution, and therefore cannot amend the new Section 32. It can only (by a two-thirds vote) propose amendments for submission to the voters. California Constitution article section. While the legislature cannot amend section 32, [L]egislative enactments related to the subject of an initiative statute may be allowed when they involve a related but distinct area [citation] or relate to a subject of the initiative that the initiative does not specifically authorize or prohibit. (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1012 [citations and internal quotation marks omitted] [holding that the legislative Medical Marijuana Program Act was not an impermissible amendment of the Compassionate Use Act initiative]. That same rule may also be applied to initiative constitutional provisions. But, in an earlier case, a legislative definition of a term used in an initiative s constitutional provision was found invalid because it contravened the definition that was apparently intended. (C & C Const., Inc. v. Sacramento Mun. Utility Dist. (2004) 122 Cal.App.4th 284, (legislative definition of discrimination in Gov. Code 8315 that the legislature stated was to clarify that term in Proposition 209 s constitutional provision invalid because different from the word s plain meaning, which prior case law said was the voters intention.) When would the new parole consideration begin? Initiatives are effective the day after the election unless the measure provides otherwise. (California Constitution article 2, section 10, subdivision (a).) Although there is no express provision in P57 concerning its effective date, the new constitutional provision does provide that CDCR must write regulations. Presumably, P57 s parole consideration would not occur before some regulations are 13

14 promulgated. Those will take some time. Even the fastest emergency regulations generally require at least five days notice, and must be approved by the Office of Administrative Law; and longer periods of a month or more, are common. (See Gov. Code , and , and Calif Code Regs., title 1, div. 1, 48 et seq, [concerning review of emergency regulations]) Permanent regulations typically take much longer. (See Gov. Code, title 2, div. 3, pt. 1, Ch. 3.5 Administrative Regulations and Rulemaking, et seq., and Cal. Code. Regs. title 1, div. 1, Office of Administrate Law, 1 et seq. What About County Jail Felony Sentences Under Pen. Code 1170, subd. (h)? No similar provisions are made for persons serving county jail felony sentences under Penal Code section 1170, subdivision (h) ( Realignment, a.k.a. AB 109). \Sentencing courts are generally required to provide that county jail felony sentences include a concluding portion of mandatory supervision. (Id at Subd. (h)(5)(b). Query whether, despite the release under mandatory supervision, equal protection requires similar consideration of release after the full term is completed for them, despite enhancements, consecutive sentences, and alternative sentences. What Would Happen to Conduct Credits? Conduct credits in prison are currently governed mainly by Penal Code, pt. 3, title 1, Ch. 7, art. 2.5 Credit on Term of Imprisonment, sections 2930 to The main sections are 2933, permitting up to 50% off for being in an appropriate work, education, or training program, , limiting the credits for violent felonies to 15%, as well as and which both deny any credits to murderers and certain repeat offenders of specified severe crimes. Other governing sections include Penal Code section 667, subdivision (c)(5) limiting credits for second and third strikes to 20% off. These credits are all statutory, and are all awarded by CDCR, which has promulgated extensive regulations to apply them and others, mainly at California Code of Regulations title 15, div. 3, art. 3.5 Credits, sections 3042 to The dissent in Brown, supra, expressed concern with the California Constitutional grant to CDCR of authority to award credits earned for good behavior and approved rehabilitative or educational achievements : [The initiative] does not explain how this new constitutional provision would interact with the detailed, mandatory provisions 14

15 for credits the Legislature has enacted.. [T]he constitutional provision would seem to displace the statutory scheme. But is [that] the intent[?]. [P]erhaps that any credits the department awards under its new constitutional authority would be in addition to, rather than instead of, the statutory credits. (Id. 63 Cal.4th at 361.) For a case discussing the relationship between initiative statutes and legislative statutes, see People v. Cooper (2002) 27 Cal.4th 38 (the 1994 legislative enactment of Pen. Code , limiting violent felons to 15% conduct credits applies to a person sentenced, in 1988 under the 1978 Briggs initiative, which permitted greater credits and prohibited legislative amendments that did not further its purpose; the legislature s greater limitation did not conflict with the initiatives purpose.) Cooper s application here may be limited, however, because P57 s section 3 enacts not a statute but a constitutional amendment. The Analysis by the Legislative Analyst in the Voter Information Guide (at page 56) says, [CDCR] The department could award increased credits to those currently eligible for them and credits to those currently ineligible. As a result, CDCR could increase the amount of credits inmates can earn, which would reduce the amount of time served in prison. The Argument in Favor of [P57] in the Voter Information Guide (at page 58) says that P57 Authorizes a system of credits that can be earned for rehabilitation, good behavior and education milestones or taken away for bad behavior. And the Argument Against [P57] in the Voter Information Guide (at page 59) says [P57] authorizes bureaucrats to reduce many sentences for good behavior, even for inmates convicted of murder, rape, child molestation and human trafficking. Note that if full term does mean the term without considering reduction for conduct credits, and if the basic conduct credit scheme of Penal Code section 2933 is unchanged by the new CDCR regulations, even many people who have consecutive sentences or enhancements will not receive P57 parole consideration. For example, a person sentenced to three years for car theft, with a one-year enhancement for a prison prior, has a total term of four years. The full term that must served for the primary offense, before being eligible for P57 s parole consideration, is three years. But under Penal Code section 2933, the person will likely receive conduct credits against the four years of two years, and will therefore be released from state prison, on postrelease community supervision after serving only two years. 15

16 Section 4. Juvenile Transfer Process replaces direct filing and fitness hearings. Section 4.1. Repeals mandatory direct filing in adult court. Welfare and Institutions Code section 602, as amended: 602. (a) Except as provided in subdivision (b) 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. Repealed would be Subdivision (b), which currently requires that charges of several specified crimes, such as murder, allegedly done by juveniles over age 16, must be filed in adult court (i.e., a court of criminal, or general, jurisdiction). Section 4.2. Repeals the prosecutor s discretionary authority to direct file specified crimes by juveniles of specified ages, in adult court; and creates the Judicial Transfer Process. This is accomplished by partially rewriting Welfare and Institutions Code section 707 subdivisions (a) and (c), by combining them into a single subdivision (a) and considerably simplifying them. Note these salient additional features: The word unfitness is repealed. Through the new judicial transfer process, a juvenile age 16 or over can be transferred to adult court for any felony, upon petition of the prosecutor, a study by the probation department, a hearing, and a decision by the court. 16

17 There is no longer a separate standard for 707(b) offenses and non-707(b) offenses, but Juveniles age 14 and 15 can only be transferred to adult court for a 707(b) offense. The basic well-known five criteria for a finding of unfitness are preserved. There is no longer a somewhat different treatment for minors with certain felony priors. Gone would be subdivision (c) s presumption of unfitness for juveniles accused of 707(b) offenses. Subdivision (c) would be repealed, and the entire section 707 would be considerably shorter. Welfare and Institutions Code section 707, subdivision (a)(1) would now read: 707, subdivision (a) (1) In any case in which a minor is alleged to be a person described in subdivision (a) of Section 602 by reason of the violation, when he or she was 16 years of age or older, of any felony criminal statute, or ordinance except those listed in subdivision (b), 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. upon The motion of the petitioner must be made prior to the attachment of jeopardy. Upon such motion, the juvenile court shall cause order the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor. being considered for a determination of unfitness. The report shall include any written or oral statement offered by the victim pursuant to Section Welfare and Institutions Code section 707, subdivision (a), paragraph 2, would be the heart of the new Judicial Transfer Process. It would now read, in essential part: 17

18 707, subdivision (a)(2) 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. The five criteria, (A) to (E) of current section 707, subdivision (a)(1), that used to be the old fitness criteria for minors age 16 and older charged with a criminal violation, are all unchanged. So they are now the criteria for the new Judicial Transfer Process. The somewhat more stringent criteria rules in the case of minor who are presumed unfit for juvenile court, in current section 707, subdivision (a))(2)(b), and subdivision (c), would be repealed and so could not apply. Repealed would be current section 707, subdivision (a)(3): (3) If, pursuant to [current 707, subd. (a)], the minor is found to be [unfit] and is [found guilty in adult court] the judge may commit the minor to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, in lieu of sentencing the minor to the state prison, unless the limitations specified in Section apply. Section 707, subdivision (b): The list of 707(b) offenses would be unchanged. But the introductory paragraph of subdivision (b) would be changed so that the new judicial transfer process could be used for 14 and 15 year olds accused on 707(b) offenses. 707(b) Subdivision (c) (a) shall be applicable in any case in which a minor is alleged to be a person described in 18

19 Section 602 by reason of the violation of one of the following offenses when he or she was 14 or 15 years of age: [Here follows unchanged list of 707(b) offenses.] Repealed would be Welfare and Institutions Code section 707, subdivisions (c), (d), and (e). The basic content of section 707, subdivision (e), requiring inclusion of victim statements, would be incorporated in to subdivision (a), paragraph (1), as quoted above. Discussion of Section 4. No more direct filing in adult court. Under P57 s amendments to Welfare and Institutions Code sections 602 and 707, juveniles could not be tried as adults except through the new Judicial Transfer Process. There will be no more mandatory direct filing, even of murder charges, against a juvenile, even a 17-year-old, in adult court. The prosecutor will no longer be able to use discretion on whether to file certain severe charges against certain minors in adult court. Query if P57 s repeal of mandatory and direct filing in adult court would mean an end to cases that could be sentenced, or sent back to juvenile court, pursuant to Penal Code section and Together, these two statutes set up elaborate schemes and limitations on sentencing for juveniles convicted in adult court, and for when a remand back to juvenile court for sentencing is required or is appropriate in the court s discretion. Penal Code section , subdivision (a) states that section applies When a person is prosecuted for a criminal offense committed while he or she was under 18 years of age 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. And Penal Code section applies to a person who is sentenced under, or is eligible for a juvenile disposition under, Penal Code section (Pen. Code , subds. (a) and (b). 19

20 These two statutes are used when the prosecutor has filed a case directly in the adult court. (See, e.g., People v. Thomas (2005) 35 Cal.4th 635 (discussing the operation of these two sections.) A case sent to adult court by the judicial transfer process, could be sentenced, or returned to juvenile court, under those two sections only if that transfer process could be considered the initiation of such a case in the adult court, which does not accord with the normal meaning of the word initiated. Repealed along with the repeal of direct filing, is the authority stated in those direct-filing provisions, of the adult court to, in very limited circumstances, to sentence the convicted minor to the CDCR s Division of Juvenile Facilities in lieu of a prison sentence. However, it appears that the same, or very similar, very limited authority would apply to a minor transferred to adult court under the proposed new Judicial Transfer Process. (Welf. & Inst. Code 1730 et seq.) The Judicial Transfer Process replaces the current fitness process The three most obvious differences between these two procedures are: Unlike current law, no minor is presumed unfit for juvenile court, no matter how serious is the crime charged, or the minor s age, or how much of a criminal background the minor has. Likewise, the five criteria used in the judicial transfer process are only those under current law for minors who are presumed fit for juvenile court. The somewhat more stringent five criteria for minors who are presumed unfit could not be used. Current law permits a finding of unfitness for a 16 or 17 year old accused of any crime including local ordinances. The Judicial Transfer Process applies only to those accused of felony offenses. Another, less obvious difference, but also important difference is in the standard for transfer. Under the current fitness procedure, the juvenile court orders transfer if it concludes that the minor would not be amenable to the care, treatment, and training program available through the facilities of the juvenile court, based upon an evaluation of the criteria specified in clause (i) of subparagraphs (A) to (E), inclusive (Welf. & Inst. Code 707, current subd. (a)(1); see also current subd. (a)(2)(b), and current subd. (c). Under P57, the juvenile court will order transfer the juvenile court shall decide whether the minor should be transferred. [T]he court shall consider the criteria 20

21 specified in subparagraphs (A) to (E). [T]he court shall recite the basis for its decision [to transfer] in an order entered upon the minutes. So, under P57, although the court would have to consider the same five factors as under the current fitness procedure, there is no requirement, as a prerequisite to transfer, that it find the minor would not be amenable to the care, treatment, and training of the juvenile court. Generally, a substantial change in the language of a statute or constitutional provision by an amendment indicates an intention to change its meaning. (People v. Toloy (2015) 239 Cal.App.4th 1116, 1121 [citing cases].) It appears, for example, that upon a murder charge, the juvenile court, after considering all five traditional criteria, including the fifth one, The circumstances and gravity of the offense, could decide to order transfer without making an amenability finding. One curious change concerns the requirement under current law that when an unfitness motion is filed, the probation officer must investigate and submit a report on the minor. Under P57, the probation officer must still submit a report, but the requirement to investigate is deleted. It seems unlikely that the drafters of P57, and the voters if they pass it, really want to do away with this investigation. Perhaps this deletion is not a substantial change within the meaning of the statutory construction rule quoted above. Presumably the minor will have the same basic rights as in a fitness hearing, such as the right to counsel. (Welf. & Inst. Code 700 [right to counsel in juvenile proceedings].) Fitness hearings are governed, in addition to Welfare and Institutions Code section 707, by California Rules of Court, rules to If P57 passes, new rules will have to be promulgated. However the current rules will surely provide guidelines pending the adoption of new rules, and the new rules may not be much different. Does the new Judicial Transfer Process apply to Juveniles Already Directly-Filed Upon in the Criminal Division of the Superior Court? Two purposes of P57 are to Stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles; and to Require a judge, not a prosecutor, to decide whether juveniles should be tried in adult court. (P57, 2, subds. 4 and 5.) P57 repeals all statutory authority for P to file against M in the superior court, criminal 21

22 division. (Welf. & Inst. Code5 602 and 707 as amended by P57 s 4.) Instead we have a new Judicial Transfer Process (JTP), similar to the former Fitness Hearing. ( 707 as amended by P57 s 4.2.) No other relevant statutes or constitutional provisions are enacted, repealed, or amended. 6 Nothing in P57 s text, and nothing in the Official Voter Information Guide, mentions retroactivity, or what to do about M s already in superior court. The juvenile court is not a separate court. It is a division of the superior court, created by section 245: Each superior court shall exercise the jurisdiction conferred by this chapter [7], and while [doing so are called] the juvenile court. The California Supreme Court holds that when a case has been tried in the criminal division that should have been tried in the juvenile court, the superior court had fundamental jurisdiction over the case, but that an error has occurred affecting [the] court's power or authority to act; the Court calls this error acting excess of its jurisdiction. (In re Harris (1993) 5 Cal.4th 813, 839, and fn 12, cited with approval in Manduley v. Superior Court (2002) 27 Cal.4th 537, 548, fn 3.) It is well settled that the right to have one s case tried in juvenile court is waived if not timely asserted. (Ibid. 5 Cal.4th at 837.) The benefit to M of the new Juvenile Transfer Process (JTP) is akin to a defense to a criminal charge for three interrelated reasons. The first reason is that An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose ( 203); the possible punishment is limited (e.g., 202, subd. (e)(5), and 1769); and juvenile law provides care, treatment, and guidance that the criminal law does not (e.g., 202). The second reason is that, some Minors already direct-filed on could not have been sent to superior court at all under amended 602 and 707 (e.g., misdemeanor-only charges cannot be transferred); and others, after application of the new JTP, might not have been. 5 All section references are to this code unless otherwise stated. 6 The Pacific Juvenile Defender Center, and the Los Angeles County Public Defender, however, in a PowerPoint presentation titled Proposition 57 and Its Effect on Transfer Hearings, have said that affected, in addition to 602 and 707, are ; and 707.1; and California Rules of Court, rules 5.766; 5.768; 5.770; and Chapter 2 of Part I of Division I of the Welf. & Inst. Code, 200 to

23 And the third reason is that JTP provides more than a normal defense on the merits; it provides a challenge to whether the criminal division is acting in excess of its jurisdiction. Regarding the first and second reasons, when the law changes to permit D a new defense, and there is no indicia of an intent to deny that to Ds whose convictions are not final, they are entitled to assert that new defense. Here, there certainly is no indicia of intent to deny the benefit of the JTP to Ms already filed upon; to the contrary, the purposes stated above, of both ending direct filing, and of rehabilitation, are furthered by applying the JTP to Ms already direct-filed upon. In People v. Urziceanu (2005) 132 Cal.App.4th 747 (Urziceanu), the Ds grew marijuana collectively for medical purposes, and were convicted of conspiracy to grow for sale. While the case was on appeal, the legislature passed the Medical Marijuana Program Act (MMPA), which legalized collectives; so Ds asked for a reversal and remand for a new trial to assert that new defense; the court of appeal agreed. (Ibid. at 758, ) The court reasoned absent contrary indicia, the Legislature is presumed to have extended to [Ds] whose appeals are pending the benefits of intervening statutory amendments which decriminalize formerly illicit conduct [citation], or reduce the punishment for acts which remain unlawful. [Citations.] No different rule applies to an affirmative defense which defense was enacted during the pendency of her appeal. (Urziceanu, supra, 132 Cal.App.4th at , quoting People v. Trippet (1997) 56 Cal.App.4th 1532, (internal quotation marks omitted) (Trippet).) Trippet, supra, in turn, had applied the Compassionate Use Act retroactively. In that case D, had been convicted of transporting and possessing marijuana. After her conviction, the voters passed Prop. 215, the Compassionate Use Act. On appeal, D contended that P215 provided her with a defense. The court of appeal agreed, vacated her conviction, and remanded for further proceedings. Ibid. at 1536, and Trippet, supra, 56 Cal.App.4th at1545, relied on a line of three Supreme Court cases that had all retroactively applied, to a case not final on appeal, a enacted law enacted after the conduct, that removed or reduced criminal penalties for that conduct; in each case there was no savings clause or other indication that the legislature intended to deny such Ds the benefit of the change of law. Those cases were People v Babylon (1985) 39 Cal.3d 719 (Babylon) (statute amended to proscribe different conduct); People v. Rossi (1976) 18 Cal.3d 295 (Rossi) (criminal sanctions for the charged conduct repealed entirely); and the well-known People v Estrada (1965) 63 Cal.2d 740 (Estrada) (criminal punishment for the charged conduct reduced). 23

24 Our case is more compelling than Urziceanu, supra, and Trippet, supra for application of this principle. In those cases, the new law gave only a defense on the merits; in our case the new law goes to the power of the criminal division to act at all. Indeed, although Babylon, supra, Rossi, supra, and Estrada, supra, all concern the criminal sanctions being charged for particular conduct, their result, particularly that of Babylon and Rossi, should apply with even more force when the concern is not with particular conduct that is no longer criminal, but with the power of the criminal division to act at all (excess of jurisdiction). See also, Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, which held, in dicta (i.e., Tapia was not considering an actual case at this point) that a provision of a Proposition 115, passed by the voters after D s conduct, but before D s trial, that change[d] the legal consequences of a defendant's criminal conduct in a way that favored the defendant, can be applied to a criminal trial that has yet to occur. That is another example of a law that provides a new defense being applied to D after D s criminal conduct. And see also Andrus v. Municipal Court (1983) 143 Cal.App.3d 1041 (Andrus), (disapproved on other grounds, Evangelatos v. Superior Court, (1988) 44 Cal.3d 1188, 1207, fn. 11, but cited with approval on this point in Tapia, supra, 53 Cal.3d at 289). In Andrus, the defendant had, as permitted by statute, appealed to the court of appeal the superior court s denial of his writ petition in a misdemeanor DUI case. While his appeal was pending, the legislature repealed the statute permitting that appeal. The court of appeal applied that statute to the pending appeal, but treated the matter as a petition for extraordinary relief. Section 5. Amendments: Limits what can be amended, and how to amend. P57 enacts a new section of the California Constitution, and also enacts and amends several statutes. As to amending P57 s California Constitutional amendment, P57 s section 5 is silent. So the normal process for amending the California Constitution applies. California Constitution article 18, section 1, says: The Legislature, two-thirds of each house concurring, may propose an amendment of the Constitution. Each amendment shall be submitted [to the voters]. As to amending the statutes enacted or amended by P57, the rule on amending statutes enacted by initiative is: 24