P. v. Super. Ct. (Tony B.)

Filed 2/4/20 P. v. Super. Ct. (Tony B.) CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
TONY B.,
Real Party in Interest.
B294813
(Los Angeles County
Super. Ct. Nos. MA066321,
MJ23850)
ORIGINAL PROCEEDING; petition for writ of mandate.
Daviann L. Mitchell, Judge. Petition granted.
Jackie Lacey, District Attorney of Los Angeles County,
Matthew Brown and John Pomeroy, Deputy District Attorneys,
for Petitioner.
No appearance for Respondent.
Public Defender of Los Angeles County, Albert J. Menaster
and Robert C. Lu for Real Party in Interest.

-- 1 of 22 --

2
The District Attorney of Los Angeles County filed a petition
for writ of mandate after the superior court determined that
minor Tony B., charged with murder and burglary, could not be
tried as an adult due to the passage of Senate Bill 1391 (2017–
2018 Reg. Sess.) (Stats. 2018, ch. 1012, § 1, eff. Jan. 1, 2019) (SB
1391), which, in almost all circumstances, prohibits transfer of
14- and 15-year-olds to criminal court. The District Attorney
argues that SB 1391 is invalid because it is inconsistent with and
does not further the intent of Proposition 57, the Public Safety
and Rehabilitation Act of 2016.
Proposition 57 eliminated “direct filing” of criminal cases
against minors in criminal court. The initiative, however, still
allowed for transfer of a 14- or 15-year-old to criminal court in
limited circumstances: if the offense charged was a severe felony
listed in the statute (including murder), and if the juvenile court
determined, after an extensive fitness hearing involving
consideration of five statutory criteria, that transfer was
appropriate. (See Welf. & Inst. Code, former § 707, subd. (a)(2),1
as amend. by Prop. 57, Gen. Elec. (Nov. 8, 2016) § 4.2, eff. Nov. 9,
2016.) The juvenile court in this matter previously concluded
that Tony B. was not likely to be successfully treated in the
juvenile system and ordered transfer of his case to the criminal
court.
SB 1391 amended section 707 in pertinent part by
eliminating the ability of a prosecutor to seek transfer of any 14-
or 15-year-old, no matter the offense charged, unless the juvenile
is not apprehended prior to the time he or she turns 18. (§ 707,
subd. (a)(2).) In this case, by its terms, section 707 mandates
1 All further statutory citations are to the Welfare and
Institutions Code unless otherwise indicated.

-- 2 of 22 --

3
that Tony B.’s case proceed in the juvenile court, and,
accordingly, in January 2019, the criminal court transferred the
matter back to juvenile court.
Our task is to determine whether SB 1391 amended section
707 in a manner that contravenes Proposition 57. Proposition 57
affirmatively permitted and was intended to allow for the
prosecution of 14- and 15-year-olds in adult criminal court under
limited circumstances, if a judge decided that such prosecution
was warranted. SB 1391, on the other hand, essentially prohibits
adult prosecution of 14- and 15-year-olds. We conclude that SB
1391 is not consistent with, and does not further, the intent of
Proposition 57. Accordingly, we direct the trial court to vacate
the order transferring the matter to the juvenile court.
BACKGROUND
Facts and procedural history
In June 2015, when he was 14, Tony B. allegedly entered a
house to burglarize it, armed himself with a knife, accidently
woke the 86-year-old sole occupant, killed her by stabbing her 41
times, left the house to observe, and then reentered the house
and completed the burglary. He was on probation at the time for
a prior burglary.
Tony B.’s case was initially filed in the criminal court, but
after the passage of Proposition 57 it was certified to the juvenile
court for consideration of a motion to transfer. The juvenile court
reviewed a probation officer’s report on Tony B.’s behavioral
patterns and social history, took briefing, and held a three-day
evidentiary hearing.
At the conclusion of the hearing, the juvenile court found
that Tony B. was not likely to be successfully treated in the
juvenile system and ordered his case transferred to criminal

-- 3 of 22 --

4
court. The court determined that Tony B. exhibited a high degree
of criminal sophistication, acted without the influence of anger or
peer pressure, and chose to kill the victim when he instead could
have fled. The court noted that Tony B. had been acting out for
years and had an escalating pattern of delinquent behavior.
Tony B. filed a petition for writ of mandate in this court
challenging the transfer order. We issued an order to show cause
and ultimately denied the petition, finding that the transfer order
was not an abuse of discretion. (See Tony B. v. Superior Court
(May 29, 2018, B285555) [nonpub. opn.].)
Following remittitur, the case went back to the criminal
court, but the criminal court, in its October 2018 minutes, noted
that the case would “likely return to juvenile court” due to the
passage of SB 1391. Prior to the effective date of SB 1391, the
District Attorney filed a brief opposing transfer. The criminal
court heard argument in January 2019 and ordered the case
transferred to the juvenile court, stating: “While I may have
feelings that this case is the type of a case that was envisioned to
stay in adult court, I will respect what the Legislature has
decided, and I will grant the defense’s request.”
This petition for writ of mandate followed. We ordered
superior court proceedings stayed, issued an order to show cause,
and received briefing from the parties.
Statutory background
In the period prior to 1995, minors younger than 16 could
not be tried as adults in criminal court. (People v. Superior Court
(Jones) (1998) 18 Cal.4th 667, 677 (Jones); Hicks v. Superior
Court (1995) 36 Cal.App.4th 1649, 1655.) This changed effective
January 1, 1995, when section 707 was amended to allow for
criminal prosecution of 14- and 15-year-olds, and rendered them,

-- 4 of 22 --

5
under certain situations, presumptively unfit for treatment as
juveniles. (Jones, supra, at pp. 677-678; Stats. 1994, ch. 453,
§ 9.5, former § 707.) Further amendments in 1999 and 2000 gave
prosecutors, in certain circumstances, discretion to directly file
cases against 14- and 15-year-olds in criminal court, and, in some
situations, required prosecution in criminal court. (Manduley v.
Superior Court (2002) 27 Cal.4th 537, 548-550.)
Proposition 57 “largely returned California to the historical
rule.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305
(Lara).) It eliminated direct filing in criminal court against
minors and required a fitness hearing if transfer to criminal court
was sought, with no presumption of unfitness for juvenile court.
(Ibid.) Fourteen- and 15-year-olds could still be prosecuted in
criminal court under Proposition 57, but only if they were alleged
to have committed a listed severe crime and the juvenile court,
following a fitness hearing and a consideration of statutory
criteria, determined that transfer was appropriate. (See former
§ 707, subds. (a)(2), (b), as amend. by Prop. 57, Gen. Elec. (Nov. 8,
2016) § 4.2.)
Pertinent here, the text of Proposition 57 contained
language allowing for further legislative amendment of the
statutes pertaining to treatment of juvenile offenders. Section 5
of Proposition 57 stated: “This act shall be broadly construed to
accomplish its purposes. The provisions of Sections 4.1
[amending section 602] and 4.2 [amending section 707] of this act
may be amended so long as such amendments are consistent with
and further the intent of this act by a statute that is passed by a
majority vote of the members of each house of the Legislature
and signed by the Governor.” (Voter Information Guide, Gen.

-- 5 of 22 --

6
Elec. (Nov. 8, 2016) text of Prop. 57, § 5, p. 145 (Voter
Information Guide).)
Contending to act under this authority, the Legislature
passed SB 1391 (SB 1391, § 3), and the Governor signed it (see
Governor’s message to Sen. on SB 1391 (Sept. 30, 2018) Sen. J.
(2017-2018 Reg. Sess.) p. 6230).
DISCUSSION
The Legislature itself may amend an initiative statute if
the initiative permits amendment without voter approval. (Cal.
Const., art. II, § 10, subd. (c).) Proposition 57 allowed for
amendment of section 707 without voter approval so long as the
amendment was consistent with the intent and furthered the
intent of the proposition. (Voter Information Guide, supra, text of
Prop. 57, § 5, p. 145; see also People v. Superior Court (T.D.)
(2019) 38 Cal.App.5th 360, 372, review granted Nov. 26, 2019,
S257980 (T.D.).) An amendment of an initiative statute includes
a legislative act that changes the statute by adding or taking
away a provision. (People v. DeLeon (2017) 3 Cal.5th 640, 651
(DeLeon); People v. Superior Court (Pearson) (2010) 48 Cal.4th
564, 571.) SB 1391 amended section 707 in pertinent part by
revising the language that previously allowed for transfer of 14-
and 15-year-olds to apply only to those “not apprehended prior to
the end of juvenile court jurisdiction.” (See § 707, subd. (a)(2).)
When examining whether an amendment to an initiative is
proper, courts “‘start[] with the presumption that the Legislature
acted within its authority’ and uphold the validity of the
legislative amendment ‘if, by any reasonable construction, it can
be said that the statute furthers the purpose’ of the initiative.”
(DeLeon, supra, 3 Cal.5th at p. 651.) All doubts are resolved in
favor of the legislative act. (Amwest Surety Ins. Co. v. Wilson

-- 6 of 22 --

7
(1995) 11 Cal.4th 1243, 1252 (Amwest).) Still, a limitation
allowing only for amendments that further an initiative’s
purposes “must be given the effect the voters intended it to have.
. . . In the absence of effective judicial review, drafters of future
initiatives might well feel compelled to withhold such legislative
authority completely, lest even the most limited grant of
authority to amend be used by the Legislature to curtail the
scope of the initiative.” (Id. at pp. 1255-1256.)
In the brief time since its passage, a number of appellate
courts have analyzed the validity of SB 1391. Most of these
courts have concluded that SB 1391 was a permissible
amendment of section 707. (People v. Superior Court (Alexander
C.) (2019) 34 Cal.App.5th 994 (Alexander C.); People v. Superior
Court (K.L.) (2019) 36 Cal.App.5th 529 (K.L.); T.D., supra, 38
Cal.App.5th 360, review granted Nov. 26, 2019, S257980; People
v. Superior Court (I.R.) (2019) 38 Cal.App.5th 383, review
granted Nov. 26, 2019, S257773 (I.R.); People v. Superior Court
(S.L.) (2019) 40 Cal.App.5th 114, review granted Nov. 26, 2019,
S258432 (S.L.); B.M. v. Superior Court (2019) 40 Cal.App.5th 742
(B.M.) review granted Jan. 2, 2020, S259030; Narith S. v.
Superior Court (2019) 42 Cal.App.5th 1131.) So far, only one
court has deemed SB 1391 unconstitutional (O.G. v. Superior
Court (2019) 40 Cal.App.5th 626, review granted Nov. 26, 2019,
S2590112 (O.G.)), though several dissenting opinions have also
2 In each of the cases where review has been granted, the
Supreme Court has framed the issue as whether SB 1391
unconstitutionally amended Proposition 57 by eliminating the
possibility of transfer to adult criminal court for 14- and 15-year-
olds.

-- 7 of 22 --

8
weighed in against a finding of validity (T.D., supra, at p. 378
(dis. opn. of Poochigian, J.), review granted; I.R., supra, at p. 396
(dis. opn. of Poochigian, J.), review granted; S.L., supra, at p. 123
(dis. opn. of Grover, J.), review granted; B.M., supra, at p. 761
(dis. opn. of McKinster, J.), review granted).
The Supreme Court has provided guidance on the proper
method for interpreting initiatives. When an amendment
enacted by initiative ‘“is subject to varying interpretations,
evidence of its purpose may be drawn from many sources,
including the historical context of the amendment, and the ballot
arguments favoring the measure.”’ (Amwest, supra, 11 Cal.4th at
p. 1256.) When the language of an initiative is “not ambiguous,”
however, “we presume the voters intended the meaning apparent
from that language, and we may not add to the statute or rewrite
it to conform to some assumed intent not apparent from that
language.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th
564, 571 (Pearson).) We believe that the language of Proposition
57 is clear. Therefore, its intent can be determined by giving the
words of its text “their ordinary meaning and construing this
language in the context of the statute and initiative as a whole.”
(Pearson, at p. 571.)
A. The fifth purpose
The most natural starting point for determining the intent
is Proposition 57’s aptly titled “Purpose and Intent” section.
(Voter Information Guide, supra, text of Prop. 57, § 2, p. 141.)
While we are not limited to this statement of purpose in our
analysis, we are “guided by” it. (Amwest, supra, 11 Cal.4th at p.
1257; see also Gardner v. Schwarzenegger (2009) 178 Cal.App.4th
1366, 1374 (Gardner); T.D., supra, 38 Cal.App.5th at p. 372.)
Proposition 57 contained the following uncodified statement of

-- 8 of 22 --

9
purposes and intents: “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.” (Voter
Information Guide, supra, text of Prop. 57, § 2, p. 141.)
The fifth of these purposes and intents is expressly
applicable to the issue presented in this case. Proposition 57, in
the manner it amended section 707, imposed the requirement of a
fitness hearing in all cases in which a juvenile was sought to be
tried as an adult. (Lara, supra, 4 Cal.5th at p. 303.) Under this
process, only a juvenile court judge could order that a juvenile be
tried as an adult. (Ibid.) The fifth purpose of Proposition 57
encapsulated this procedure, providing that a judge, not a
prosecutor, would decide whether juveniles should be tried in
adult criminal court. (Voter Information Guide, supra, text of
Prop. 57, § 2, p. 141.)
SB 1391 changes this procedure, as it “eliminates
prosecutors’ ability to seek transfer of 14 and 15 year olds from
juvenile court to criminal 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.”
(T.D., supra, 38 Cal.App.5th at p. 368.) It thereby eliminates a
juvenile court judge’s authority to hold a fitness hearing to decide
whether a 14- or 15-year-old should be tried in adult court (S.L.,
supra, 40 Cal.App.5th at p. 120), except in the rare circumstance
where the juvenile is apprehended long after the offense.

-- 9 of 22 --

10
Proposition 57 authorized the Legislature to amend section
707, but this authority was limited; any amendment had to be
“consistent with” and “further” the intent of the initiative. (Voter
Information Guide, supra, text of Prop. 57, § 5, p. 145.) We do not
believe an amendment that prohibits a judge from ordering a 14-
or 15-year-old transferred to criminal court is consistent with and
furthers the intent of “[r]equir[ing] a judge, not a prosecutor, to
decide whether juveniles should be tried in adult court.” (Id. at
§ 2, p. 141.)
If Proposition 57 had limited the class of juveniles
potentially subject to prosecution in criminal court to those 16
and older, then SB 1391 would not violate the intent. But
Proposition 57 did no such thing. Instead, it specifically provided
that 14- and 15-year-olds were subject to prosecution in criminal
court if so ordered by the juvenile court following a fitness
hearing. (Voter Information Guide, supra, text of Prop. 57, § 4.2,
p. 142; former § 707, subds. (a), (b).) SB 1391 eliminates this
option, stripping judges of the ability to make transfer decisions
pertaining to 14- and 15-year-olds, who were previously
considered juveniles potentially subject to transfer under
Proposition 57.
In finding SB 1391 to be a permissible amendment, some
courts have sought to read into the fifth purpose an emphasis on
the elimination of direct filing by prosecutors. For example, K.L.
found that the “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.” (K.L.,
supra, 36 Cal.App.5th at p. 539.) Similarly, the court in B.M.
concluded, “The purpose of the juvenile offender provisions is to
check prosecutorial discretion and abolish direct filing . . . .”

-- 10 of 22 --

11
(B.M., supra, 40 Cal.App.5th at p. 758; see also T.D., supra, 38
Cal.App.5th at pp. 373-374; S.L., supra, 40 Cal.App.5th at p.
121.)
Respectfully, we believe that in emphasizing only the
elimination of direct filing, these courts have effectively negated
the language allowing for a judge to make transfer decisions,
thereby running afoul of basic rules of construction. “When we
interpret an initiative, we apply the same principles governing
statutory construction.” (Pearson, supra, 48 Cal.4th at p. 571.)
The language of an initiative is given its ordinary and plain
meaning, avoiding an interpretation that renders any language
mere surplusage. (Berkeley Hillside Preservation v. City of
Berkeley (2015) 60 Cal.4th 1086, 1097; People v. Lewis (2016) 4
Cal.App.5th 1085, 1092-1093.)
By its plain terms, the fifth intent and purpose of
Proposition 57 was that judges would decide whether juveniles
(including 14- and 15-year-olds) should be tried in adult court. If
eliminating direct filing was the sole concern of the fifth purpose,
then its language would have reflected that point; the text could
have simply omitted reference to the judge making the decision.
But the text did not omit this language. Instead, the stated
intent was to “[r]equire a judge . . . to decide whether juveniles
should be tried in adult court.” (Voter Information Guide, supra,
text of Prop. 57, § 2, p. 141.) As a basic rule of construction, this
language cannot be rendered mere surplusage. Indeed, there is
no reason to omit this language. The purpose of allowing a judge
to decide whether juveniles should be tried in adult court is not at
all inconsistent with the purpose of eliminating direct filing. And
the language of the fifth purpose can be read in harmony with the
remainder of Proposition 57. Giving effect to the entirety of the

-- 11 of 22 --

12
stated intents and purposes—including that a judge makes the
transfer decision—does not lead to an absurd result.
Thus, to the extent it eliminates the authority of the
juvenile court to order transfer of 14- and 15-year-olds, SB 1391
is inconsistent with and does not further the purpose and intent
of requiring a judge to decide whether juveniles should be tried in
adult court. In this respect, SB 1391 falls outside the limited
scope of authority granted to the Legislature to amend section
707.
B. Specific language of the statute
Our analysis is also guided by the specific language of
section 707 itself, as effectuated by Proposition 57. (See Amwest,
supra, 11 Cal.4th at p. 1260; Gardner, supra, 178 Cal.App.4th at
p. 1374.) Again, the language of the former section 707 was not
ambiguous. It provided that a 14- or 15-year-old, alleged to have
committed certain offenses, could be transferred to adult criminal
court if the juvenile court judge, following consideration of
relevant evidence and criteria, determined that transfer was
appropriate. (See former § 707, subds. (a)(2), (b), as amend. by
Prop. 57, Gen. Elec. (Nov. 8, 2016) § 4.2, p. 142.)
Proposition 57 clearly allowed, in certain circumstances, for
adult prosecution of 14- and 15-year-olds, as reflected in the
former section 707. In contrast, “Senate Bill 1391 goes a step
beyond Proposition 57 and shields an entire class of minors from
criminal court.” (B.M., supra, 40 Cal.App.5th at p. 755.) As
stated in O.G., “The language of Proposition 57 permits adult
prosecution and Senate Bill 1391 precludes such prosecution.”
(O.G., supra, 40 Cal.App.5th at p. 629.) By altering the terms of
section 707 in such a significant respect, SB 1391 cannot be said

-- 12 of 22 --

13
to further the intent of Proposition 57. (See Amwest, supra, 11
Cal.4th at p. 1261; Gardner, supra, 178 Cal.App.4th at p. 1377.)
Tony B. avers that an overly stringent interpretation of
Proposition 57’s amendment provision will prohibit any
substantive amendment, rendering the amendment provision a
nullity. He cites to Alexander C., which reasoned, “if any
amendment to the provisions of an initiative is considered
inconsistent with an initiative’s intent or purpose, then an
initiative such as Proposition 57 could never be amended. There
would be no purpose to having included, as Proposition 57 does,
language expressly allowing legislative amendments that ‘are
consistent with and further the intent’ of the proposition.”
(Alexander C., supra, 34 Cal.App.5th at p. 1003.) Other courts
have followed this reasoning in discussing the amendment
provision. (See T.D., supra, 38 Cal.App.5th at p. 372; S.L., supra,
40 Cal.App.5th at p. 122; B.M., supra, 40 Cal.App.5th at p. 760.)
While we agree with the general premise that a provision
allowing for amendment should not be too narrowly construed
lest it be effectively nullified, we do not believe this concern can
justify an otherwise improper amendment of an initiative statute.
It is correct that, given its amendment provision, Proposition 57
anticipated future amendment of section 707. And it is possible
to think of hypothetical amendments to section 707 that might
have furthered the intent of Proposition 57, while still preserving
the stated intent of allowing a judge to decide, in appropriate
circumstances, that a 14- or 15-year-old should be tried in
criminal court. For instance, the former section 707, subdivision
(b), contained a fairly extensive list of offenses that subjected a
14- or 15-year-old to a possible transfer motion. (See former
§ 707, subd. (b)(1)-(30).) A legislative amendment that limited

-- 13 of 22 --

14
those offenses to only murder and violent sex crimes, for example,
would narrow the class of 14- and 15-years-olds potentially
subject to trial in criminal court, but still allow a judge to make a
transfer decision in an appropriate case. Or, alternatively, the
Legislature might have chosen to amend the criteria governing a
juvenile court’s transfer determination, setting a higher bar for
transfer. Again, these are just hypothetical examples, and we do
not intend to tell the Legislature how to do its job or to determine
the constitutionality of hypothetical amendments. The point is:
SB 1391 did not represent the only potential way of amending
Proposition 57.
Given these findings—that SB 1391 violates a stated
purpose and intent of Proposition 57 and directly contradicts the
statutory language itself—we must conclude that SB 1391 is not
consistent with the intent and does not further the intent of the
proposition. In so holding, we do not intend to comment on the
policy choice of generally eliminating adult prosecution of 14- and
15-year-olds. That is a subject for the electorate and, if
appropriate, the Legislature. The authority granted to the
Legislature by Proposition 57, however, was limited. The
Legislature’s authority was constrained by the text of the
initiative. Because SB 1391 exceeds the authority granted, we
find that it is invalid insofar as it prohibits juvenile courts from
ordering 14- and 15-years-olds transferred to adult criminal
court.

-- 14 of 22 --

15
DISPOSITION
The petition is granted. A writ of mandate hereby issues
directing the trial court to vacate its January 2, 2019 order
transferring the case to juvenile court and to enter a new and
different order denying Tony B.’s request to transfer the case to
juvenile court. The stay of trial court proceedings issued
January 7, 2019, shall dissolve upon issuance of the remittitur.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P.J.
ASHMANN-GERST
I concur:
_____________________, J.
CHAVEZ

-- 15 of 22 --

1
The People v. Superior Court of Los Angeles County (Tony B.),
B294813
HOFFSTADT, J., dissenting:
The question presented by this writ petition seems
straightforward enough. Answering it is anything but.
As the majority ably explains, the voter-initiative enacted
Proposition 57, by its own terms, may only be amended by our
Legislature “so long as such amendments are consistent with and
further the intent” of the proposition. (Voter Information Guide,
Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 5, p. 145 (Voter
Information Guide).) Where, as here, the voters have attached a
condition to the Legislature’s power to amend their initiative, our
state Constitution compels us to enforce it. (Amwest Sur. Ins. Co.
v. Wilson (1995) 11 Cal.4th 1243, 1251 (Amwest), italics
removed); see Cal. Const., art. II, § 10(c).) Because it is
undisputed that Senate Bill 1391 (S.B. 1391) amends Proposition
57 by largely taking away a juvenile court’s power to transfer
cases to courts of criminal jurisdiction involving more egregious
crimes committed by 14- and 15-year-olds (§ 707, subd. (a)(2)),
the constitutional validity of S.B. 1391 turns on whether S.B.
1391 is “consistent with and furthers the intent” of Proposition
57.
As the majority also ably explains, figuring out Proposition
57’s intent is more easily said than done. Although the so called
“majority view” of the Courts of Appeal is that S.B. 1391 is
consistent with Proposition 57’s intent, those courts have
traveled a multitude of different—and, at times, conflicting—
paths to get to their common conclusion.

-- 16 of 22 --

2
In my view, the root of this confusion may lie with the fact
that Proposition 57 seeks to achieve multiple aims, many of
which conflict.
The pertinent text of Proposition 57 expressly empowers
juvenile courts to transfer to adult court the cases of 14- and 15-
year-old juveniles accused of certain, more egregious crimes.
(Former § 707, subd. (a)(2).) The “Purpose and Intent” section of
Proposition 57 expressly enumerates five “purpose[s] and
intent[s] of the people” in enacting the initiative: (1) to “[p]rotect
and enhance public safety,” (2) to “[s]ave money by reducing
wasteful spending on prisons,” (3) to “[p]revent federal courts
from indiscriminately releasing prisoners,” (4) to “[s]top the
revolving door of crime by emphasizing rehabilitation, especially
for juveniles,” (5) to “[r]equire a judge, not a prosecutor, to decide
whether juveniles should be tried in adult court.” (Voter
Information Guide, supra, text of Prop. 57, § 2, p. 141.)
Some of these intents are in tension with one another.
Proposition 57 aims to protect and enhance public safety, and
public safety is often furthered by incarceration—whether it be
detaining a suspect pending trial (Pen. Code, § 1275, subd. (a)(1)
(“protection of the public” relevant in setting bail)), imposing a
longer prison sentence after conviction (see Cal. Rules of Court,
rules 4.414 [factors relating to whether to grant probation], 4.421
[circumstances in aggravation that may justify longer period of
incarceration]), or denying parole (Pen. Code, § 3041, subd.
(b)(1)). Yet, Proposition 57 also aims to “[s]ave money” and
“emphasiz[e] rehabilitation,” both of which counsel against
incarceration.
That Proposition 57 embodies multiple, conflicting intents
is hardly surprising, as legislation often reflects a “balance [of]

-- 17 of 22 --

3
competing policy concerns.” (Cassel v. Superior Court (2011) 51
Cal.4th 113, 122.) Proposition 57’s pertinent text, as well as the
fifth enumerated purpose that tracks that text, ostensibly reflect
the balance that Proposition 57 struck because the proposition
generally seeks to save money and emphasize rehabilitation
while simultaneously granting juvenile courts the discretion to
transfer to adult court the cases involving juvenile offenders who
pose the greatest risk to public safety.
But where, as here, a voter initiative reflects a compromise
between conflicting intents, how are the courts to evaluate
whether later enacted legislation is “consistent with and
furthers” those intents?
The varied paths traveled by the Courts of Appeal in
assessing the constitutional validity of S.B. 1391 reflect some of
the challenges that arise in making this evaluation. Three are
prominent.
First, what should the courts look at in determining the
intent behind an initiative? Some courts focus solely on the
initiative’s statutory text, ostensibly applying the maxim of
statutory construction that the starting and ending point for
assessing a legislature’s—or the voters’—intent is the language
used in the enacted statute. (People v. Superior Court (Zamudio)
(2000) 23 Cal.4th 183, 192.) That is the path traveled by O.G. v.
Superior Court (2019) 40 Cal.App.5th 626, 628-629 and Justice
McKinster’s dissent in B.M. v. Superior Court (2019) 40
Cal.App.5th 742, 764 (B.M.) (dis. opn. of McKinster, J.). Other
courts focus on the initiative’s stated purposes to the exclusion of
its text. That is the path traveled by People v. Superior Court
(Alexander C.) (2019) 34 Cal.App.5th 994, 1003 (Alexander C.) [it
is a mistake to “equate” an initiative’s “intent with each of [its]

-- 18 of 22 --

4
specific provisions”]. And still other courts look to both the
“initiative’s specific language, as well as its . . . purpose[s].”
(Gardner v. Schwarzenegger (2009) 178 Cal.App.4th 1366, 1374
(Gardner).)
Second, where an initiative has multiple enumerated
intents or purposes (which may or may not include those
embodied in the statutory text itself), how should a court
determine which intent or purpose is the intent or purpose of the
voter initiative? Some courts focus on the most analogous
intent(s) or purpose(s). That is the path traveled by People v.
Superior Court (T.D.) (2019) 38 Cal.App.5th 360, 373-374 (T.D.),
People v. Superior Court (S.L.) (2019) 40 Cal.App.5th 114, 121
(S.L.), and the majority, all of which looked chiefly at one or both
of the “juvenile-specific statement[s] of purpose and intent”
enumerated in Proposition 57 (that is, the fourth and fifth
enumerated purposes). Other courts focus on what intent or
purpose is embodied by the majority of enumerated intents or
purposes (e.g., best two out of three, three out of five). That is the
path suggested by Gardner, which invalidated subsequent
legislation that conflicted with two out of an initiative’s three
enumerated purposes. (Gardner, supra, 178 Cal.App.4th at pp.
1377-1378.) And still other courts focus on trying to divine and
ascribe an “overriding” (T.D., at p. 374), “high level” (Alexander
C., supra, 34 Cal.App.5th at p. 1004), “major” (People v. Superior
Court (K.L.) (2019) 36 Cal.App.5th 529, 539 (K.L.); Gardner,
supra, 178 Cal.App.4th at p. 1374), “fundamental” (K.L., at p.
539; Gardner, at p. 1374), “overall” (S.L., at p. 122) or “broad”
(T.D., at p. 371) purpose to the initiative. As one might expect,
the outcome of any inquiry into the intent of an initiative is
largely a function of how that inquiry is phrased.

-- 19 of 22 --

5
Third, what weight, if any, should a court give to the later
legislature’s declaration that its amendment is consistent with
the voters’ intent in enacting the initiative? S.B. 1391 “declares”
that it “is consistent with and furthers the intent of Proposition
57.” (S.B. 1391, § 3.) Some courts have accorded this declaration
“great weight.” This is the path traveled by T.D., supra, 38
Cal.App.5th at pp. 370-371. Other jurists have accorded the
declaration very little weight, ostensibly because it is post hoc, it
can be self-serving and, like René Magritte’s famous painting
depicting a pipe but stating “This is Not A Pipe” (in French), can
be objectively inaccurate. (B.M., supra, 40 Cal.App.5th at p. 765
(dis. opn. of McKinster, J.)).
Fortunately, our Supreme Court has granted review in
nearly all of these cases and will thus likely provide a definitive
answer to whether S.B. 1391 is “consistent with and further[s]”
Proposition 57’s intent. In the course of providing this answer,
we may also obtain much-needed guidance on the questions posed
above and, hence, on the path we should travel in the future
when determining the intent and purpose animating initiatives.
Until we have this guidance, I part ways with the majority.
Like the majority, I agree that our task is to “‘start[] with
the presumption that the Legislature acted within its authority’
and uphold the validity of the legislative amendment ‘if, by any
reasonable construction, it can be said that the statute furthers
the purposes’ of the initiative.” (People v. DeLeon (2017) 3
Cal.5th 640, 651, quoting Amwest, supra, 11 Cal.4th at p. 1256.)
Unlike the majority, I disagree that this presumption has
been rebutted.
In my view, it is not possible to construe S.B. 1391’s
withdrawal of discretion to transfer cases involving some 14- and

-- 20 of 22 --

6
15-year-old juveniles to be consistent with Proposition 57’s
pertinent text conferring such discretion. However, I do not
subscribe to the view that the text of Proposition 57 is the sole
embodiment of its intent and purpose, such that any and every
amendment that modifies that text is for that reason
impermissible. Were that the rule, Proposition 57’s express
authorization of amendments consistent with its purpose would
be a nullity. (Tuolumne Jobs & Small Business Alliance v.
Superior Court (2014) 59 Cal.4th 1029, 1038 [“courts should give
meaning to every word of a statute and should avoid
constructions that would render any word or provision
surplusage”].) The majority recognizes as much when it
hypothesizes valid legislative amendments to a juvenile court’s
power to transfer cases that would eliminate some—but not all—
of that power; if any alteration of that power were enough to be
inconsistent with Proposition 57’s intent, none of the majority’s
hypothetical amendments would be valid.
In my view, it is possible to reasonably construe S.B. 1391
to be consistent with and to further Proposition 57’s five
enumerated purposes and intents, particularly given the judicial
mandate to harmonize an enactment’s conflicting intents or
purposes (e.g., Jonathan L. v. Superior Court (2008) 165
Cal.App.4th 1074, 1099; Faulder v. Mendocino County Bd. of
Supervisors (2006) 144 Cal.App.4th 1362, 1372-1373). S.B. 1391
certainly furthers Proposition 57’s purposes of saving money,
emphasizing rehabilitation, and preventing the federal courts
from indiscriminately releasing prisoners due to overcrowding.
S.B. 1391 ostensibly furthers Proposition 57’s purpose of
reserving to juvenile court judges the power to decide whether
juvenile offenders should be tried in adult court because, even

-- 21 of 22 --

7
after S.B. 1391, those judges still retain the power to decide
whether 16- and 17-year-old juveniles should be transferred to
criminal court. And S.B. 1391 can be construed to further
Proposition 57’s purpose of enhancing public safety, at least in
light of the evidence in the “legislative history” underlying
Proposition 57 that the rehabilitation of juveniles through
juvenile court ostensibly protects public safety in the long-run by
discouraging recidivism (accord, B.M., supra, 40 Cal.App.5th at
pp. 755-757), even if, in the short term, S.B. 1391 results in
persons like Tony B.—who stabbed an elderly woman 41 times
rather than leave the house he was burglarizing and whom the
juvenile court determined, after a three-day hearing, not to be
amenable to treatment and rehabilitation as a juvenile—being
released back into the community in their 20s once juvenile court
jurisdiction expires. To me, this is a close question. But in such
situations, the tie goes to constitutionality.
For these reasons, I would deny the writ petition.
______________________, J.
HOFFSTADT

-- 22 of 22 --