P. v. Chacon

Filed 11/26/02 P. v. Chacon CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW CHACON,
Defendant and Appellant.
F038393
(Super. Ct. No. 80653)
OPINION
THE COURT *
APPEAL from a judgment of the Superior Court of Kern County. Coleen W.
Ryan and Clarence Westra, Jr., Judges.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Jo Graves, Assistant Attorney General, Louis M. Vasquez and Kathleen A.
McGurty, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Before Dibiaso, Acting P.J., Vartabedian, J. and Gomes, J.

-- 1 of 11 --

2.
FACTUAL AND PROCEDURAL HISTORY
The day after 17-year-old Matthew Chacon cared for his three-month-old twin
daughters, the twins’ mother and grandmother observed medical symptoms that led to a
Proposition 211 “discretionary direct file” pursuant to Welfare and Institutions Code
section 707, subdivision (d)(1). The district attorney charged him with two counts of
assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd.
(a)(1)), two counts of willful cruelty to a child under circumstances likely to produce
great bodily injury (Pen. Code, § 273a), and two counts of torture (Pen. Code, § 206).
Before trial, Chacon filed a Penal Code section 995 motion to dismiss on the
ground that Proposition 21 violated the single-subject initiative rule. (Cal. Const., art. II,
§ 8, subd. (d).) The prosecutor opposed, and the Honorable Coleen W. Ryan denied, the
motion. On the first day of trial, arguing that he was not properly before the court for a
criminal trial, he made a motion to dismiss. As before, the prosecutor opposed, and the
Honorable Clarence Westra, Jr., denied, the motion.
A jury found Chacon guilty of two counts of assault and two counts of willful
cruelty and not guilty of two counts of torture. Before sentencing, again arguing that he
was not properly before the court for a criminal trial, he made another motion to dismiss.
Again the prosecutor opposed, and the court denied, the motion. The court imposed a
state prison sentence.
DISCUSSION
I. Constitutionality Of Proposition 21
Chacon argues that Proposition 21 violates the single-subject initiative rule (Cal.
Const., art. II, § 8, subd. (d)) and that the discretionary direct file authority enacted into
Welfare and Institutions Code section 707, subdivision (d)(1) violates state constitutional
1The Gang Violence and Juvenile Crime Prevention Act of 1998. (Initiative Measure,
Voter Information Guide, Primary Elec. (Mar. 7, 2000) Prop. 21 (hereafter Proposition 21).)

-- 2 of 11 --

3.
guarantees of separation of powers (Cal. Const., art. III, § 3),2 equal protection of the
laws (id., art. I, § 7, subd. (a)), uniform operation of laws (id., art. IV, § 16), and due
process of law (id., art. I, §§ 7, subd. (a), 15).
After briefing was complete in the case at bar, the California Supreme Court
adjudicated challenges like Chacon’s. The court held that Proposition 21 does not violate
the single-subject initiative rule (Cal. Const., art. II, § 8, subd. (d)), that the grant in
Welfare and Institutions Code section 707, subdivision (d) (hereafter 707(d)) of
prosecutorial discretion to file charges against certain minors directly in criminal court
without juvenile court fitness hearings does not violate the separation of powers doctrine
(Cal. Const., art. III, § 3), that section 707(d)’s elimination of a prior juvenile court
fitness hearing does not violate due process of law (Cal. Const., art. I, §§ 7, subd. (a), 15),
and that section 707(d)’s grant of prosecutorial discretion to file charges against some
minors but not others does not violate equal protection of the laws (Cal. Const., art. I, § 7,
subd. (a)) or the uniform operation of the laws doctrine (id., art. IV, § 16). (Manduley v.
Superior Court (2002) 27 Cal.4th 537, 550-562.)
II. Posttrial Criminal Court Discretion to Order a Juvenile Disposition
Chacon argues that a criminal court has the discretion to order a juvenile
disposition after a criminal trial on a discretionary direct file. The Attorney General
argues the contrary.
The discretion at issue originates in a statute that requires a criminal court to
secure a prosecutor’s consent to order a juvenile disposition after a criminal trial on a
discretionary direct file:
“Notwithstanding any other provision of law, the following shall apply to a
person sentenced pursuant to Section 1170.17. [¶] … [¶] (4) Subject to the
knowing and intelligent consent of both the prosecution and the person
2California Constitution, article III, section 3 (formerly Cal. Const., art. III, § 1) provides:
“The powers of state government are legislative, executive, and judicial. Persons charged with
the exercise of one power may not exercise either of the others except as permitted by this
Constitution.”

-- 3 of 11 --

4.
being sentenced pursuant to this section, the court may order a juvenile
disposition under the juvenile court law, in lieu of a sentence under this
code, upon a finding that such an order would serve the best interests of
justice, protection of the community, and the person being sentenced. Prior
to ordering a juvenile disposition, the court shall cause to be received into
evidence a social study by the probation officer, prepared pursuant to
Section 706 of the Welfare and Institutions Code, and shall state that the
social study made by the probation officer has been read and considered by
the court.” (Pen. Code, § 1170.19, subd. (a)(4), italics added. Added by
Stats. 1999, ch. 996, § 12.1.)
On the threshold question that arises—whether the requirement of a prosecutor’s
consent violates the state Constitution’s separation of powers doctrine—we examine
relevant case law. In the seminal case of People v. Tenorio (1970) 3 Cal.3d 89, 91-95,
the California Supreme Court held that a statute requiring the court to secure a
prosecutor’s consent to dismiss an allegation of a prior violates the state Constitution’s
separation of powers doctrine by improperly invading the constitutional province of the
judiciary:
“When the decision to prosecute has been made, the process which leads to
acquittal or to sentencing is fundamentally judicial in nature. Just as the
fact of prosecutorial discretion prior to charging a criminal offense does not
imply prosecutorial discretion to convict without a judicial determination of
guilt, discretion to forego prosecution does not imply discretion to sentence
without a judicial determination of those factors which the Legislature has
never denied are within the judicial power to determine and which relate to
punishment. The judicial power is compromised when a judge, who
believes that a charge should be dismissed in the interests of justice, wishes
to exercise the power to dismiss but finds that before he may do so he must
bargain with the prosecutor. The judicial power must be independent, and
a judge should never be required to pay for its exercise.” (Id. at p. 94.)
In the years after Tenorio, the Supreme Court applied the rationale of that case to
several analogous situations. In Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 122,
the court held that a statute requiring a magistrate to secure a prosecutor’s consent to
determine that a wobbler is a misdemeanor rather than a felony violates the separation of
powers doctrine (see Pen. Code, § 17, subd. (b)):

-- 4 of 11 --

5.
“Since the exercise of a judicial power may not be conditioned upon the
approval of either the executive or legislative branches of government,
requiring the district attorney’s consent in determining the charge on which
a defendant shall be held to answer violates the doctrine of separation of
powers.” (Esteybar v. Municipal Court, supra, 5 Cal.3d at p. 127.)
In People v. Navarro (1972) 7 Cal.3d 248, 258-260, the Supreme Court held that a
statute requiring a trial court to secure a prosecutor’s consent to order a posttrial
commitment to a narcotic detention, treatment, and rehabilitation facility violates the
separation of powers doctrine:
“The imposition of sentence and the exercise of sentencing discretion are
fundamentally and inherently judicial functions. [Citation.] … [¶] … ‘It
bears reiteration that the Legislature, of course, by general laws can control
eligibility for probation, parole and the term of imprisonment, but it cannot
abort the judicial process by subjecting a judge to the control of the district
attorney.’” (Id. at pp. 258-259, fns. omitted.)
In People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 61, the Supreme
Court held that a statute requiring a trial court to secure a prosecutor’s consent to order
pretrial diversion to a narcotic treatment and rehabilitation program violates the
separation of powers doctrine:
“… [W]hen the jurisdiction of a court has been properly invoked by the
filing of a criminal charge, the disposition of that charge becomes a judicial
responsibility. … With the development of more sophisticated responses to
the wide range of antisocial behavior traditionally subsumed under the
heading of ‘crime,’ alternative means of disposition have been confided to
the judiciary.” (Id. at p. 66.)
In Davis v. Municipal Court (1988) 46 Cal.3d 64, 69-72, the court held that a local
rule on wobblers precluding diversion to those whom a prosecutor charges with felonies
while permitting diversion to those whom a prosecutor charges with misdemeanors does
not violate the separation of powers doctrine. The local rule grants discretion that a
prosecutor exercises before the filing of a criminal charge, but the challenged statutes at
issue in Tenorio and progeny “purported to give a prosecutor the right to veto a decision
made by a court after criminal charges had already been filed. None of the cases
suggests that the exercise of prosecutorial discretion prior to the filing of such charges

-- 5 of 11 --

6.
improperly subordinates the judicial branch to the executive in violation of the
Constitution, even though the prosecutor’s exercise of such charging discretion inevitably
affects the sentencing or other dispositional options available to the court.” (Davis v.
Municipal Court, supra, at p. 82.) Like the challenged statutes at issue in Tenorio and
progeny, Penal Code section 1170.19, subdivision (a)(4) (hereafter 1170.19(a)(4))
purports to give a prosecutor the right to veto a decision that a criminal court makes after
the filing of a criminal charge.
Manduley stresses the critical distinction between prosecutorial discretion before
and prosecutorial discretion after the filing of a criminal charge. Tenorio and progeny
“establish that the separation of powers doctrine prohibits the legislative branch from
granting prosecutors the authority, after charges have been filed, to control the
legislatively specified sentencing choices available to a court. A statute conferring upon
prosecutors the discretion to make certain decisions before the filing of charges, on the
other hand, is not invalid simply because the prosecutor’s exercise of such charging
discretion necessarily affects the dispositional options available to the court.” (Manduley
v. Superior Court, supra, 27 Cal.4th at p. 553.) “Because [Welfare and Institutions
Code] section 707(d) does not confer upon the prosecutor any authority to interfere with
the court’s choice of legislatively specified sentencing alternatives after an action has
been commenced pursuant to that statute, we conclude that section 707(d) does not
violate the separation of powers doctrine.” (Ibid.)
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the court
approved the application of the rationale in Tenorio to analogous situations in later cases
and stated the fundamental principle in that line of authority: “When the jurisdiction of a
court has been properly invoked by the filing of a criminal charge, the disposition of that
charge becomes a judicial responsibility.” (Romero, supra, at p. 517.) Implementing that
principle, Romero avoided finding a violation of the separation of powers doctrine by
construing a provision of the three strikes law so as not to require a prosecutor’s consent

-- 6 of 11 --

7.
to the exercise of the trial court’s authority on its own motion to strike a strike prior at
sentencing. (Id. at pp. 509-517; Pen. Code, §§ 667, subd. (f), 1385.)
The discretion that Penal Code section 1170.19(a)(4) grants to a criminal court to
order a juvenile disposition after a discretionary direct file indisputably constitutes a
judicial responsibility squarely within the scope of “[a]ll of the subsequent cases applying
Tenorio to invalidate legislative provisions ….” (See Davis v. Municipal Court, supra,
46 Cal.3d at p. 83.) Like the statutes in Tenorio and progeny, section 1170.19(a)(4)
authorizes “the exercise of a prosecutorial veto after the filing of criminal charges, when
the criminal proceeding has already come within the aegis of the judicial branch.” (Davis
v. Municipal Court, supra, at p. 83.) Accordingly, we hold that section 1170.19(a)(4)’s
requirement that a criminal court secure a prosecutor’s consent to order a juvenile
disposition after a criminal trial on a discretionary direct file violates the state
constitution’s separation of powers doctrine. (Cal. Const., art. III, § 3.) Since the
constitutionally infirm requirement of a prosecutor’s consent is severable from the rest of
section 1170.19(a)(4) (see People v. Navarro, supra, 7 Cal.3d at pp. 260-264), we turn to
the issue of whether Chacon is entitled to relief from the denial of his request.3
III. The Request for Relief on the Record
Chacon argues that the court was not aware of its statutory discretion to order a
juvenile disposition after a criminal trial on a discretionary direct file and that a remand is
necessary to allow the exercise of that discretion. The Attorney General argues that the
court had no discretion and that no remand is necessary.
Since the passage of Proposition 21, Welfare and Institutions Code section 602,
subdivision (b) mandates criminal court jurisdiction (without a prior juvenile court fitness
adjudication) of any minor 14 years of age or older facing any murder or serious sex
offense charge on the list in that statute. (Amended by Stats. 1999, ch. 996, § 12.2;
3In the absence of opposition by Chacon to a juvenile disposition, the issue of whether
the statute’s requirement of the accused’s consent is severable from the invalid requirement of a
prosecutor’s consent is not before us. (Cf. People v. Navarro, supra, 7 Cal.3d at pp. 264-265.)

-- 7 of 11 --

8.
Proposition 21, § 18; Stats. 2001, ch. 854, § 72.) For any minor 16 years of age or older
facing any charge not on that list but on the list in section 707, subdivision (b), post-
Proposition 21 section 707, subdivision (d)(1) authorizes discretionary direct file criminal
court jurisdiction (without a prior juvenile court fitness adjudication). (Ibid.; Stats. 1998,
ch. 936, § 21.5; Proposition 21, § 26.) The accusatory pleading in the case at bar charged
Chacon with assault by means of force likely to produce great bodily injury and with
torture. (Pen. Code, §§ 206, 245, subd. (a)(1).) Each of those offenses on the list in
section 707, subdivision (b) authorizes the discretionary direct file in the case at bar.
(§ 707, subds. (b)(14), (b)(23), (d)(1).)
With reference to Welfare and Institutions Code section 707(d), the statute at issue
in Manduley, the Supreme Court notes that “[t]he prosecutor’s discretionary charging
decision … is no different from the numerous prefiling decisions made by prosecutors …
that limit the dispositions available to the court after charges have been filed. Conferring
such authority upon the prosecutor does not limit the judicial power, after charges have
been filed, to choose among the dispositional alternatives specified by the legislative
branch.” (Manduley v. Superior Court, supra, 27 Cal.4th at p. 555, italics added.) One
of those alternatives is the discretion that Penal Code section 1170.19(a)(4) grants to a
criminal court to order a juvenile disposition after a criminal trial on a discretionary direct
file. Manduley characterizes as only a general rule the statutory preclusion by section
707(d) of a juvenile disposition: “If the prosecutor initiates a proceeding in criminal
court, and the circumstances specified in section 707(d) are found to be true, the court
generally is precluded by statute from ordering a juvenile disposition. (Welf. & Inst.
Code, § 1732.6, subd. (b)(2); see Pen. Code, §§ 1170.17, 1170.19.)” (Manduley at p.
555, italics added.)
Manduley later states: “The voters, through the enactment of Proposition 21, have
determined that the judiciary shall not make the determination regarding a minor’s fitness
for a juvenile disposition where the prosecutor initiates a criminal action pursuant to
[Welfare and Institutions Code] section 707(d).” (Manduley v. Superior Court, supra, 27

-- 8 of 11 --

9.
Cal.4th at p. 555, fn. omitted.) We read that sentence as an articulation of section
707(d)’s mandate: “In any case in which the district attorney … has filed an accusatory
pleading against a minor in a court of criminal jurisdiction pursuant to the provisions of
this subdivision, the case shall then proceed according to the laws applicable to a criminal
case.” (§ 707, subd. (d)(4).)
For two reasons, we decline to make a broader inference from that sentence. First,
not once did Manduley cite Penal Code section 1170.19(a)(4), the statute in which the
Legislature expressly granted discretion to the criminal court to order a juvenile
disposition after a criminal trial on a discretionary direct file. That statute was simply not
at issue in that case. It is axiomatic that cases are not authority for propositions not
considered. (People v. Nguyen (2000) 22 Cal.4th 872, 879; People v. Gilbert (1969) 1
Cal.3d 475, 482, fn. 7.) Second, Manduley itself notes that “a prosecutor’s decision to
file charges against a minor in criminal court pursuant to [Welfare and Institutions Code]
section 707(d) is not analogous to a prosecutor’s veto of a court’s legislatively authorized
determination, after a judicial hearing, of a defendant’s suitability for a particular
disposition ….” (Manduley v. Superior Court, supra, 27 Cal.4th at p. 559.) On that
rationale, as section 707(d) survives a separation of powers analysis, so section
1170.19(a)(4) does not.
After conviction on a discretionary direct file, Penal Code section 1170.17,
subdivision (a)4 authorizes the court to impose the same sentence for a minor as for an
adult pursuant to the authority of section 1170.19, subdivision (a). “Notwithstanding any
other provision of law,” the latter statute not only sets out (in subparagraphs (1)-(3))
conditions for the imposition of an adult sentence but also articulates (in subparagraph
(4)) an express legislative grant of discretion to the criminal court to order a juvenile
4Penal Code section 1170.17, subdivision (a) provides in part: “When … the prosecution
is lawfully initiated in a court of criminal jurisdiction …, the person shall be subject to the same
sentence as an adult convicted of the identical offense, in accordance with the provisions set
forth in subdivision (a) of Section 1170.19 ….” (Italics added; added by Stats. 1999, ch. 996,
§ 12; amended by Stats. 2000, ch. 287, § 15.)

-- 9 of 11 --

10.
disposition instead. (Ibid.) The criminal court’s exercise of that discretion after the filing
of a criminal charge is not at all inconsistent with a prosecutor’s decision before the filing
of a criminal charge to proceed with a discretionary direct file.
As Manduley notes, a prosecutor’s “traditionally … broad power to charge crimes
extends to selecting the forum ….” (Manduley v. Superior Court, supra, 27 Cal.4th at p.
552.) By selecting the forum, a prosecutor selects the procedure and protocol of that
forum. Whether in juvenile court at a disposition hearing or in criminal court after trial,
Welfare and Institutions Code section 706 adds to the record a base of “evidence on the
question of the proper disposition to be made of the minor.”5 In only the latter forum,
however, can the rigorous adversarial character of a criminal trial add another dimension
of evidence, rulings, and findings to the record, both for the criminal court’s posttrial
exercise of Penal Code section 1170.19(a)(4) discretion and for the appellate court’s
review for possible abuse of discretion.
The “fundamental task of statutory construction is to ‘ascertain the intent of the
lawmakers so as to effectuate the purpose of the law.’” (People v. Cruz (1996) 13
Cal.4th 764, 774-775.) If the language is clear, the plain meaning of the words is
determinative, and there is ordinarily no need to look beyond the statute itself. (People v.
Benson (1998) 18 Cal.4th 24, 30.) If the language is ambiguous, the courts may “resort
to extrinsic sources, including the ostensible objects to be achieved and the legislative
history.” (People v. Coronado (1995) 12 Cal.4th 145, 151.)
Even though we do not find the language of the statute ambiguous, we nonetheless
take note of the legislative history to quiet any doubt about the meaning of the words. A
committee synopsis of Senate Bill No. 334, the bill that led to the enactment of Penal
5Welfare and Institutions Code section 706, which Penal Code section 1170.19(a)(4)
incorporates by reference, provides in part: “The court shall receive in evidence the social study
of the minor made by the probation officer and any other relevant and material evidence that
may be offered, including any written or oral statement offered by the victim, the parent or
guardian of the victim if the victim is a minor, or if the victim has died or is incapacitated, the
victim’s next of kin ….”

-- 10 of 11 --

11.
Code sections 1170.17, subdivision (a), and 1170.19(a)(4) alike, states: “This bill would
enact reverse remand provisions applicable to minors against whom charges were filed
directly in adult criminal court, as specified.” (Sen. Com. on Public Safety, Analysis of
Sen. Bill No. 334 (1999-2000 Reg. Sess.) as amended Sept. 9, 1999, p. 5.) The Senate
Rules Committee analysis of that bill states: “Specifically, this bill: [¶] … [¶] Enacts a
reverse remand provision authorizing the court to impose a juvenile disposition for a
minor convicted after a direct file prosecution if the minor satisfies specified criteria.”
(Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 334 (1999-2000
Reg. Sess.) as amended Sept. 9, 1999, pp. 6-7.)
In the case at bar, the record shows no discussion by court or counsel of the
discretion that Penal Code section 1170.19(a)(4) grants to order a juvenile disposition
after a criminal trial on a discretionary direct file. On a silent record like that, a remand
for resentencing is necessary.6 “Defendants are entitled to sentencing decisions made in
the exercise of the ‘informed discretion’ of the sentencing court.” (People v. Belmontes
(1983) 34 Cal.3d 335, 348, fn. 8, quoting United States v. Tucker (1972) 404 U.S. 443,
447; see Townsend v. Burke (1948) 334 U.S. 736, 741; People v. Austin (1981) 30 Cal.3d
155, 160-161.)
DISPOSITION
Chacon’s state prison sentence is stricken from the judgment. The matter is
remanded for a hearing at which the court shall exercise the discretion that Penal Code
section 1170.19(a)(4) grants to a criminal court to order a juvenile disposition after a
criminal trial on a discretionary direct file. After the exercise of that discretion, the court
shall prepare an amended abstract of judgment. Otherwise, the judgment of conviction is
affirmed.
6If on remand the court were to order a juvenile disposition pursuant to Penal Code
section 1170.19(a)(4), the issue of whether section 1385 might in some way give the court the
authority to do so, as Chacon argues, would become moot. Accordingly, we need not address
that issue.

-- 11 of 11 --