on november 8, 2016, california voters passed proposition 57 … · 2018-08-16 · prop 57 is...
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Date: November 15, 2016 Date: November 28, 2016 2016 #25- IPG (PROPOSITION 57)
On November 8, 2016, California voters passed Proposition 57 – The Public Safety and
Rehabilitation Act of 2016. This IPG discusses the most significant aspects of that initiative
with Santa Clara County DDA Kathy Storton. Here are some of the highlights:
☢ Under an amendment to the California Constitution, defendants who are sentenced to
crimes other than those listed as violent felonies will be eligible for release on parole once
they have served their sentence on the crime with the longest sentence, regardless of any
enhancements, alternative sentences, or how many crimes they were convicted of.
☢ Under an amendment to the California Constitution, the Department of Corrections and
Rehabilitation will have the authority to give additional conduct credit to any prisoner –
and potentially without regard to statutes limiting conduct credits.
☢ It is no longer required that juveniles age 14 or older who personally commit murder
with special circumstances or certain forcible sex crimes be prosecuted in adult court.
☢ Prosecutors no longer have discretion to directly file cases in adult court against
minors.
This IPG memo is accompanied by a podcast providing 50 minutes of general MCLE credit. Click below to listen to the podcast: https://www.youtube.com/channel/UC5aiUCbAzLfrlQ8AdCF3GCA
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TABLE OF CONTENTS I. PROPOSITION 57 (THE PUBLIC SAFETY AND REHABILITATION ACT OF 2016) 4 1. Overview of Prop 57 4 2. What is the effective date of Prop 47? 4 3. What is the stated purpose and intent of Prop 57? 4 4. What is the impact of Prop 57 on when persons in state prison may be released? 5 5. Who is eligible for early release? 6 6. What is a “non-violent felony offense” under Prop 57? 6 7. If the defendant is a registered sex offender, will the defendant be ineligible for early parole pursuant to Prop 57 regardless of whether the offense for which defendant is serving time is a “non-violent felony?” 9 8. How much of a defendant’s sentence must a defendant serve before becoming eligible for early release under Prop 57? (That is, what is the “full term” of a “primary offense?”) 11
A. What is an “alternative sentence?” 11 (i) Will defendants who are serving Three Strike sentences be eligible for early release? 13 B. Will crimes that are designated violent felonies only because of an attached enhancement qualify as non-violent felony offenses? 13 C. Will defendants who are serving time based on convictions for both non-
violent felony offenses and violent felony offenses be eligible for early parole consideration? 14
9. What does it mean to be eligible for “parole consideration” – does it include persons released on PRCS? 16 10. Will there be a hearing to determine whether and when a defendant who is eligible for “parole consideration” should be released? 18 11. What criteria will be used to determining whether someone eligible for early parole consideration gets released? 18 12. Will victims of the crimes committed by Prop 57 eligible offenders have a right to be present and heard at “parole consideration” hearings under Marsy’s Law? 19 13. Does Proposition 57 have any impact on defendants convicted of felonies who are serving their time in county jail under an 1170(h) sentence? 22 14. What impact does Prop 57 have on the ability of state prisoners to obtain additional conduct credits? 23
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A. Will CDCR’s authority to award additional credits override existing statutory limitations on the amount of conduct credit that can be received by certain defendants? 24
15. What impact does Prop 57 have on the prosecutor’s ability to directly file charges against juvenile defendants in adult criminal court? 25 16. What impact does Prop 57 have on the criteria used by the juvenile court in determining whether a minor should be subject to criminal proceedings? 27 17. Is the requirement that a juvenile have a “transfer” hearing before being
prosecuted in adult court retroactive to pending cases? 27 A. If Prop 57 is retroactive, will it impact cases where convictions occurred before its effective date? 44 B. Is a juvenile defendant who has a pending criminal case, but who was determined to be unfit for prosecution in juvenile court by a judge before Prop 57 passed, entitled to a new transfer hearing? 44 18. If a case had already been direct filed in criminal court before Prop 57 was enacted, and the court indicates a desire to halt the proceedings (and/or the prosecution agrees to halt the proceedings) in order for a transfer hearing to occur, is there anything to keep in mind? 45 A. If a case had already been direct filed in criminal court before Prop 57, can the transfer determination be made by a judge in criminal court rather than having the case sent down for the determination to be made by a juvenile court judge? 48
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Proposition 57 amends the California Constitution and juvenile statutes by:
(1) Providing for early parole for “any person convicted of a non-violent felony offense and
sentenced to state prison . . . after completing the full term for his or her primary offense;”
(2) Authorizing the California Department of Corrections and Rehabilitation (CDCR) to grant
any state prison inmate additional “good behavior” credits and “rehabilitative or
educational achievement” credits;
(3) Requiring CDCR to adopt regulations and then certify that they “protect and enhance
public safety;” and
(4) Requiring juvenile courts to decide whether a minor should be transferred to adult court
by eliminating mandatory and discretionary direct filing by prosecutors.
Prop 57 is effective on November 9, 2016, the day after the election. Pursuant to Article II,
Section 10(a) of the California Constitution, an initiative approved by the voters takes effect the
day after the election unless the measure provides otherwise. Since Prop 57 does not provide for
a different effective date, it is effective on November 9, 2016.
In section 2 of Prop 57, it states: “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.
1. Overview of Prop 57
*Editor’s note: The potential retroactivity of Prop 57 is discussed in this IPG, section 17 at pp 27-42.
3. What is the stated purpose and intent of Prop 57?
PROPOSITION 57 (THE PUBLIC SAFETY AND REHABILITATION ACT OF 2016)
2. What is the effective date of Prop 57?
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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.”
Prop 57 may have immense impact on when persons are released from state prison because it
amended the California Constitution to add provisions that will permit inmates to be “eligible for
parole consideration” much earlier than they would previously have been eligible and will allow
inmates to accrue conduct credits in greater amounts than previously dictated by statute.
Prosecutors need to be aware of the potential effects of Proposition 57 (i) when negotiating plea
bargains; (ii) when informing victims of crime how long a defendant will have to serve before he
or she is potentially eligible for release from prison; and (iii) when informing victims of crimes of
their right to be notified upon request when a hearing on defendant’s potential release on parole
or PRCS from state prison is going to be held.
Specifically, Prop 57 added section 32 to article I of the California Constitution:
“(a) The following provisions are hereby enacted to enhance public safety, improve
rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding
anything in this article or any other provision of law:
(1) Parole consideration: Any person convicted of a non-violent felony offense and
sentenced to state prison shall be eligible for parole consideration after completing the full
term for his or her primary offense.
(A) For purposes of this section only, the full term for the primary offense
means the longest term of imprisonment imposed by the court for any offense,
excluding the imposition of an enhancement, consecutive sentence, or alternative
sentence.
(2) Credit Earning: The Department of Corrections and Rehabilitation shall have
authority to award credits earned for good behavior and approved rehabilitative or
educational achievements.
4. What is the impact of Prop 57 on when persons in state prison may be released?
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(b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of
these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall
certify that these regulations protect and enhance public safety.” (Emphasis added by IPG.)
Persons eligible for early release under Prop 57 are persons “convicted of a non-violent felony
offense and sentenced to state prison” who have completed the “full term” of their primary
offense. (Cal. Const., art. I, § 32, subd. (a)(1).)
Prop 57 does not define the term “non-violent felony offense.” Accordingly, how it will be
defined will likely be the subject of some litigation.
Since there is no definition of “non-violent felony offense” provided in Prop 57, there is a
reasonable probability that courts will interpret the definition of that term by looking to how the
term “violent felony” is defined; and then defining “non-violent felony offense” as referring to all
felony offenses not defined as “violent felonies.” Indeed, in the “Analysis by the Legislative
Analyst,” it was stated: “Although the measure and current law do not specify which felony
crimes are defined as nonviolent, this analysis assumes a nonviolent offense would include any
felony offense that is not specifically defined in statute as violent.” (Ballot Pamp., Primary Elec.
(Nov. 8, 2016) Analysis by the Legislative Analyst at p. 56.)
The term “violent felony” is defined in Penal Code section 667.5(c). And in the “REBUTTAL TO
ARGUMENT AGAINST PROPOSITION 57” listed in the official voter information ballot, it was
stated: “Violent criminals as defined in Penal Code 667.5(c) are excluded from parole. • Does
NOT and will not change the federal court order that excludes sex offenders, as defined in Penal
Code 290, from parole.”
If the definition of the term “non-violent felony” is viewed as ambiguous, these ballot statements
may be considered in determining how to interpret the term. (See Professional Engineers
in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037 “[Where there is
ambiguity in the language of the measure, ‘[b]allot summaries and arguments may be considered
when determining the voters’ intent and understanding of a ballot measure.’”]; Amador Valley
Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245–246
6. What is a “non-violent felony offense” under Prop 57?
5. Who is eligible for early release?
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[“ballot summary and arguments and analysis presented . . . in connection with a particular
measure may be helpful in determining the probable meaning of uncertain language”].)
However, just because a term is undefined in an initiative, this does not necessarily mean a term
is ambiguous. When a phrase is not defined within the initiative, “it can be assumed to refer not
to any special term of art, but rather to a meaning that would be commonly understood by the
electorate.” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 302.) “If the
language is not ambiguous, 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.) “[A]nd in the absence of specifically defined meaning, a court looks to the plain meaning of
a word as understood by the ordinary person, which would typically be a dictionary definition.”
(Hammond v. Agran (1999) 76 Cal.App.4th 1181, 1189.) If the dictionary definition is used,
then the term would be given a much broader definition than crimes not listed in section 667.5.
(See e.g., http://www.collinsdictionary.com/dictionary/english/non-violent [“You can refer to
someone or something such as a crime as non-violent when that person or thing does not hurt or
injure people.”].)
Moreover, unlike some other statutes, which define the term “violent felony” by making specific
reference to the definition used in Penal Code section 667.5(c) (see e.g., Educ. Code, § 33195.3;
Govt. Code, § 7282(g); Pen. Code, §§ 1203.085, 1319, 31360/17320, 3000.03; and Welf & Inst.
Code, § 707(b)(21)), Prop 57 does not refer to section 667.5 at all. Moreover, Penal Code section
667.5(c) itself specifically confines its definition of violent felony to section 667.5. (See Pen.
Code, § 667.5(c) [“For the purpose of this section, “violent felony” shall mean any of the
following: [listing designated offenses]”, emphasis added by IPG.].)
Indeed, an argument can be made when the intent of a new initiative is to allow a benefit to
attach to every defendant but those convicted of offenses listed in Penal Code section 667.5, the
language of the new law specifically says so – as was done when Proposition 36 (2012 version)
enacted Penal Code section 1170.126 and when Proposition 36 (2000 version) enacted Penal
Code section 1210.1. (See Pen. Code, § 1170.126(b) [“Any person serving an indeterminate term
of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or
paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, . . . of a felony or felonies
that are not defined as serious and/or violent felonies by subdivision (c) of Section
667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall . . .”]; Pen. Code, §
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Accordingly, until the issue is resolved, when it is important to the
parties whether the crime qualifies or does not qualify as a non-violent
felony offense, prosecutors and defense attorneys crafting negotiated
dispositions should specify whether the crime(s) for which defendant is
being sentenced is intended to qualify as a non-violent felony offense for
purposes of section 32 of Article I of the California Constitution.
The parties may also want to specify on the record that whether the crime
does or does not qualify as a non-violent felony is an express provision of
the plea bargain so that if a court or the Department of Corrections and
Rehabilitation comes to a different conclusion, either party may
withdraw from the plea bargain – at least in cases where the
interpretation of the term would have a practical impact on when the
defendant is eligible for parole.
When a defendant has pled open to the court or has been convicted after
trial, prosecutors and defense counsel should ask the court to make it
clear on the record whether the crime is a non-violent felony offense for
purposes of section 32 of Article I of the California Constitution.
1210.1(a)&(b) [granting probation to “any person convicted of a nonviolent drug possession
offense” but, inter alia, excluding “(1) Any defendant who previously has been convicted of one or
more violent or serious felonies as defined in subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7 . . .”].) (Emphasis added by IPG.)
Regardless, as indicated above, and as expressly recognized by Justice Chin in his dissenting
opinion in Brown v. Superior Court (2016) 63 Cal.4th 335: “Because the United States
Supreme Court recently declared unconstitutional as impermissibly vague the term “violent
felony” in a federal statute (Johnson v. U.S. (2015) ––– U.S. ––––, 135 S.Ct. 2551, 192
L.Ed.2d 569), the absence of a definition is troublesome, to say the least. The Penal Code
contains various lists of crimes satisfying various definitions, including a list of “violent” felonies.
(Pen.Code § 667.5, subd. (c).) Does that statute apply to mean that any crime not listed in it
would be a nonviolent felony, even though many such crimes are arguably violent? Can a statute
define a constitutional term? What if the Legislature amends the list? What happens if the term
non-violent felony offense” is also found to be void for vagueness? Would that mean all inmates
would be eligible for parole?” (Brown, dissenting opinion of Justice Chin at p. 360.)
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Many registrable sex offenses qualify as violent felony offenses under Penal Code section
667.5(c). (See Pen. Code, § 667.5(c)(3) - (6), (11), (18).) However, many other registrable sex
offenses do not. (See e.g., Pen. Code, §§ 243.4; 314, subds 1 and 2; 311.1, 311.2 subds (b), (c), or,
311.3, 311.4, 311.10, 311.11, or 647.6.)
As noted above, in the ballot argument section of the official voter information guide,
proponents claimed Proposition 57 “[d]oes NOT and will not change the federal court order that
excludes sex offenders, as defined in Penal Code 290, from parole.” (Ballot Pamp., Primary Elec.
(Nov. 8, 2016) Rebuttal to Argument Against Proposition 57, at p. 59.)
However, nothing in the language of Proposition 57 states a defendant currently serving time for
a registrable sex offense or who has a prior conviction for a registrable sex offense is ineligible for
early parole consideration. Moreover, the actual federal court order presumably referenced in
the argument does not actually exclude sex offenders from being paroled in California.
In February 10, 2014, in the joined cases of Coleman v. Brown and Plata v. Brown No.
2:90–cv–0520 LKK DAD (PC), a three-judge panel in federal court approved of extending time
to the State of California to reduce its prison population to 137.5% of capacity, which the State of
California had earlier been ordered to do. This order was made in light of the agreement of
California to take certain measures to reduce the population. One of several measures imposed
by the order was to “[c]reate and implement a new parole determination process through which
non-violent second-strike offenders will be eligible for parole consideration by the Board of
Parole Hearings once they have served 50% of their sentence.” (Id. at p. 3.) Another measure
imposed by the order required that “[n]on-violent second-strikers will be eligible to earn good
time credits at 33.3% and will be eligible to earn milestone credits for completing rehabilitative
programs.” (Ibid.) The order also required that, in selecting inmates for release, to take into
consideration public safety by minimizing any risk of violent re-offense. (Id. at p. 4.)
7. If the defendant is a registered sex offender, will the defendant be ineligible for early parole pursuant to Prop 57 regardless of whether the offense for which defendant is serving time is a “non-violent felony?”
Editor’s note: The following information is taken from Verbatim (Ballotpedia’s Fact-Checking Desk),
which did an incredibly impressive job of answering the following question in an insightful and neutral
manner: “Is there a federal court order that would prohibit sex offenders in California from being paroled
under Proposition 57?”
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“The panel did not address the issue of excluding sex offenders until its order issued on October
29, 2014. In it, the panel reported the state had claimed ‘they “have always indicated” that sex
offenders would be excluded from the population of non-violent second-strikers eligible for
increased good time credits, and they should be permitted to do so “to minimize the risks of
public safety,” particularly when they are currently in compliance with the Court’s population
benchmarks.’ But the panel noted the state ‘did not exclude sex offenders in their January 23,
2014, proposed order that became the basis of this Court’s February 10, 2014 order. It is unclear
whether this omission was intentional.’
The panel concluded that it did not have enough information to determine what effect excluding
sex offenders would have on reducing the prison population to the mandated level.
The court’s next order, issued on November 14, 2014, required the state to ‘file a report
describing the new parole process, including an estimate of the number of inmates who will be
affected’ by December 1, 2014. In that report, the state explained which nonviolent offenders it
planned to exclude from the court-ordered parole changes. The state proposed excluding from
consideration for early parole inmates required to register under section 290, among others.
Other examples of inmates to be excluded from consideration are those who refused to provide
urine samples for drug testing and inmates ‘found guilty of any rules violation committed at the
behest of or in connection with a designated prison gang.’
The court did not publish any comments on the report after it was filed. The court also did not
modify any of its previous orders or issue any new orders to prohibit from parole consideration
the inmates excluded in the state’s plan.
In January 2015, the California prison system finally reached the court-mandated population
threshold and has remained in compliance since then. Currently, the prison system is operating
at 131.9 percent of its designed capacity, with a population of 129,045 inmates. It is still under
the supervision of the three-judge panel.
[Sub-title omitted] Verbatim emailed Dan Newman, the spokesman for Yes on 57, to ask the basis for the claim that
the exclusion of inmates who must register under section 290 is the result of a federal court
order rather than a state policy. Newman replied:
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Bottom line: While the Department of Corrections and
Rehabilitation may seek to exclude sex offender registrants
from the benefits of early parole, Prop 57 does not facially
speak to whether they can do so. Accordingly, prosecutors
should not assume that persons either currently serving
sentences for registrable sex offenses identified in Penal Code
section 290(c) or persons with prior offenses that require
them to register will be ineligible for early release under Prop
57.
‘The sex registrant exclusion has been in effect since the start of implementation of non-violent
parole on January 1, 2015. The State’s filing explains that this exclusion was adopted for public
safety reasons. The Court accepted it, and has not issued any further orders altering how the
State implements non-violent parole or its public safety exclusions.’” (See
https://ballotpedia.org/Verbatim_fact_check:_Would_inmates_convicted_of_violent_cri
mes_in_California_be_eligible_for_early_parole_under_Proposition_57%3F.)
Subdivision (a)(1) of section 32 of article I of the California Constitution (as enacted by Prop 57)
provides: “Parole consideration: Any person convicted of a non-violent felony offense and
sentenced to state prison shall be eligible for parole consideration after completing the full
term for his or her primary offense.”
Subpart (A) of subdivision(a)(1) of section 32 states:
Editor’s note: Readers accustomed to media outlets that skew data, misunderstand legal issues, or
exhibit a bias should check out Ballotpedia’s Verbatim. At least as to the questions posed regarding claims
made relating to Prop 57, Verbatim nailed it.
8. How much of a defendant’s sentence must a defendant serve before becoming eligible for early release under Prop 57? (That is, what is the “full term” of a “primary offense?”) for becoming eligible for early release under Prop 57, i.e., what is the “full term” of a “primary offense”?
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“For purposes of this section only, the full term for the primary offense means the longest term
of imprisonment imposed by the court for any offense, excluding the imposition of an
enhancement, consecutive sentence, or alternative sentence.” (Cal. Const., art. I, § 32, subd.
(a)(1)(A.)
This means that a defendant serving a sentence for a “non-violent” felony offense will be eligible
for parole consideration after serving his sentence on the substantive offense for which
defendant received the longest term, regardless of the number of other offenses defendant was
simultaneously sentenced on, regardless of how much additional time was added on to the
defendant’s sentence by way of an enhancement, and regardless of whether the sentence on the
substantive offense was increased by some circumstance that resulted in an alternative sentence.
The term “alternative sentence” is not defined in Prop 57 and it is not even a commonly used
term although it sometimes crops up in describing sentencing schemes. Courts have
distinguished “alternate sentences” from “enhancements” by noting that, unlike enhancements
(which add a term to a defendant’s sentence), an alternate sentencing statute “provides an
alternate method to calculate either the determinate term or minimum term for an
indeterminate sentence.” (People v. Tillman (1999) 73 Cal.App.4th 771, 780; People v. Sipe
(1995) 36 Cal.App.4th 468, 486-487.) The “Three Strikes” law is an alternate sentencing statute
because the sentence is not based on the imposition of a particular additional term for each
prior. Rather the priors create a whole new sentence. (See People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 527 [“The Three Strikes law … articulates an alternative
sentencing scheme for the current offense rather than an enhancement.”]. The one strike law
and the habitual sex offender act are also considered alternate sentencing schemes. (People v.
McQueen (2008) 160 Cal.App.4th 27, 37.)
The California Supreme Court has also drawn a distinction between what is calls “penalty
provisions” and sentence enhancements. This distinction tracks the distinction drawn between
“alternate sentences” and “enhancements.” “[A] penalty provision prescribes an added penalty
to be imposed when the offense is committed under specified circumstances. A penalty provision
is separate from the underlying offense and does not set forth elements of the offense or a
greater degree of the offense charged.” (Robert L. v. Superior Court (2003) 30 Cal.4th 894,
899 citing to People v. Bright (1996) 12 Cal.4th 652, 661; see also People v. Brookfield
A. What is an “alternative sentence?”
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(2009) 47 Cal.4th 583, 592 [an “enhancement” is a statute that imposes an “additional term of
imprisonment” while a penalty provision “provides an alternate penalty rather than an
additional punishment”].)
It is very likely that statutory provisions that are referred to as “penalty provisions,” as “alternate
penalties” or as “alternate sentences” are what the drafters of Prop 57 had in mind when using
the term “alternative sentence.”
It is somewhat less likely that the term “alternative sentence” would include statutes that have
different subdivisions changing the penalty based on the existence of different circumstances,
such as when the substantive crime is accompanied by the use of force (see e.g., Penal Code
section 136.1(c)(a) [increasing sentence for false imprisonment when accompanied by force]) or
when the defendant is a repeat offender (see e.g., Penal Code section 647.6(c)(2) [increasing
sentence for annoying children when defendant has specified prior convictions].) These may be
viewed as separate crimes because the different subdivisions encompass different elements.
Assuming defendants eligible for early parole consideration are excluded if serving a sentence for
a violent felony defined in Penal Code section 667.5(c), there is nothing in the language of Prop
57 that would prevent defendants serving Three-Strike sentences for offenses other than violent
felonies from being eligible for early parole consideration. This is so for the reasons discussed in
this IPG at section 8-A at pp. 12-13.
Will a felony conviction that is only a violent felony, for example, because of the infliction of
great bodily injury or the use of firearm (see Pen. Code, § 667.5(c)(8) [rendering any felony a
violent offense if “the defendant inflicts great bodily injury on any person other than an
accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or
12022.9 . . . , or any felony in which the defendant uses a firearm which use has been charged and
proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55])
qualify as a non-violent felony considering that in determining when a person is eligible for
parole consideration, section 32 of Article I, does not take into account attached enhancements?
B. Will crimes that are designated violent felonies only because of an
attached enhancement qualify as non-violent felony offenses?
(i) Will defendants who are serving Three Strike sentences be eligible for
early release?
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Assuming violent felonies listed in section 667.5(c) do not qualify for early parole consideration,
the answer is very likely to be “no” considering how section 32 is structured. The only persons
eligible for early parole consideration are defendants serving sentences for nonviolent crimes. It
is only when a defendant has already been determined to be serving a sentence for a nonviolent
felony offense that the question of eligibility for early parole consideration even arises. There is
no reason to believe that the definition of a “primary offense” (which excludes enhancements and
which only becomes relevant once the determination has been made the offense qualifies for
early release) will be used to define “non-violent felony offense” since the latter deals with what
crimes are eligible for early release and the former with how to calculate the date of release
eligibility based on the sentence imposed for those crimes. It’s really apples and oranges. This
distinction won’t deter defendants from making a contrary argument, but should dissuade any
judges from agreeing with the defendant’s argument.
Subdivision (a)(1) of section 32 of article I of the California Constitution, in pertinent part,
provides: “notwithstanding anything in this article or any other provision of law: ¶ . . . Any
person convicted of a non-violent felony offense and sentenced to state prison shall be
eligible for parole consideration after completing the full term for his or her primary offense.”
(Emphasis added by IPG.)
Expect defendants convicted of multiple offenses, some non-violent and some violent, to argue
that they qualify for early parole consideration - especially in circumstances where the non-
violent felony offense was the offense that provided the longest term of imprisonment (i.e., is the
“primary offense”). The argument is going to be that a defendant who has been convicted of
both a non-violent felony offense and a violent felony offense has necessarily been convicted of
a non-violent felony offense. Thus, technically, such a defendant would be eligible for parole
consideration. Moreover, the defendant will argue that if early parole consideration was meant
to be limited to defendants only convicted of non-violent felony offenses, it would have stated:
“Any person convicted solely of a non-violent felony offense . . .”
Whether this argument will have any legs is another question. Certainly, it makes no sense to
provide for early release of defendants who commit not only violent felonies but also non-violent
C. Will defendants who are serving time based on convictions for both
non-violent felony offenses and violent felony offenses be eligible
for early parole consideration?
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felonies since these folks present an even greater threat than those who just committed violent
felonies. Moreover, such an interpretation would be inconsistent with the ballot argument in
favor of Prop 57, which stated: “And as the California Supreme Court clearly stated: parole
eligibility in Prop. 57 applies “only to prisoners convicted non-violent felonies.” (Ballot Pamp.,
Primary Elec. Nov. 8, 2016) argument in favor of Prop. 57, p. 58, italics in original.) Similarly, in
the rebuttal ballot argument, the proponents of Prop 57 stated: “●Does NOT authorize parole for
violent offenders. The California Supreme Court clearly stated: parole eligibility in Prop. 57
applies ‘only to prisoners convicted non-violent felonies.’ (Brown v. Superior Court, June 6,
2016). Violent criminals as defined in Penal Code section 667.5(c) are excluded from parole.”
Ballot Pamp., Primary Elec. Nov. 8, 2016) rebuttal to argument against Prop. 57, p. 59, italics in
original.)
Defendants may seek to characterize the issue as being of a similar nature to the issue raised in
the California Supreme Court case of People v. Johnson (2015) 61 Cal.4th 674. That case had
to construe Proposition 36 (The Three Strikes Reform Act of 2012), which allowed resentencing
of inmates convicted of a third strike under the Three Strikes law when the third strike was
neither a violent nor a serious felony. The question arose whether a defendant who was
convicted of both a violent/serious felony and a nonviolent/nonserious felony would be entitled
to resentencing on the nonviolent/nonserious felony. The Johnson court held that the Three
Strikes Reform Act required an inmate’s eligibility for resentencing to be evaluated on a count-
by-count basis, and thus an inmate could obtain resentencing with respect to a three-strikes
sentence imposed for a felony that is neither serious nor violent, despite the fact that the inmate
remains subject to a third-strike sentence of 25 years to life. (Id. at pp. 687-695.) However, the
Johnson’s court interpretation of Prop 36 was expressly tied to the historical understanding of
how sentencing worked under the Three Strikes law, which “focused on the sentence to be
imposed with respect to each count individually[.]” (Id. at p. 688.) Moreover, the ballot
arguments in Prop 36 did not undermine such an interpretation in the same way the Prop 57
ballot arguments would undermine the position that Prop 57 allows for early parole
consideration for persons convicted of both nonviolent and violent felonies. Finally, as a
practical matter, even if the holding in Johnson was applicable by way of analogy, it would only
Editor’s note: “[A]s a reviewing court is directed to look at the arguments contained in the official ballot
pamphlet to ascertain voter intent, it is well settled that such an analysis necessarily includes the
arguments advanced by both the proponents and opponents of the initiative.” (Robert L. v. Superior
Court (2003) 30 Cal.4th 894, 906.)
16
permit early parole consideration on the portion of the sentence imposed for the nonviolent
offenses, not the portion of the sentence being served for the violent offenses. (Cf., In re
Reeves (2005) 35 Cal.4th 765, 768 [holding Penal Code section 2933.1 limited a prisoner’s
ability to earn worktime credit to no more than 15% if the prisoner was serving a term for a
violent offense even though the defendant was concurrently punished for a nonviolent offense
but once the prisoner completed the term for the violent offense he became prospectively eligible
to earn credit at a rate unrestricted by section 2933.1’s limitation].)
One other important notion to keep in mind is that the Department of Corrections and
Rehabilitation is given authority to “adopt regulations in furtherance” of Prop 57 which must
“protect and enhance public safety.” (Cal. Const., art. I, § 32, subd. (b).) These regulations are
likely to exclude anyone serving a sentence for a violent offense even if they are simultaneously
serving as sentence for a nonviolent offense.
Prop 57 provides that “[a]ny person convicted of a non-violent felony offense and sentenced to
state prison shall be eligible for parole consideration after completing the full term for his or
her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1)(A, emphasis added by IPG.)
The majority of prisoners eligible for “parole consideration” under Prop 57 will be serving
determinate term sentences instead of life sentences. Determinate term prisoners are
automatically released onto parole or postrelease community supervision (PRCS) after having
served a specific portion of their entire sentence (e.g., 50% pursuant to Penal Code section 2933)
without having to go through an actual parole hearing.
“Parole consideration” is not defined and this lack of definition may cause some confusion
because most of the persons who might be eligible for early parole consideration are more likely
to be persons released on PRCS rather than on parole. This is because only defendants who are
serving sentences for serious or violent felonies, three-strikers, high-risk sex offenders, or
persons with severe mental disorders are subject to “parole supervision” (Pen. Code, §
3000.08(a).) “[A]ll other offenders released from prison” are placed on PRCS (Pen. Code, §
3000.08(a). However, no mention is made in Prop 57 of defendants who are released on PRCS.
9. What does it mean to be eligible for “parole consideration” – does it include persons released on PRCS? for becoming eligible for early release under Prop 57, i.e., what is the “full term” of a “primary offense”?
17
As Kathy Storton has observed, the use of “nonviolent felony offense” and “parole” in the same
sentence could indicate an intent by the drafters to limit early release to inmates eligible for
parole (i.e., defendants convicted of serious felonies, three-strikers, high risk sex offenders, and
severely mentally disordered offenders - who are not serving sentences for violent offenses
defined in Penal Code section 667.5(c)). If the intent of the drafters was to have the early release
provisions apply only to lower level offenders in state prison, then Prop 57 should have
referenced release onto PRCS. However, it is much more likely that this is a drafting error.
It is possible that if this failure to reference PRCS falls into the category of a “drafter’s error,” it
can be corrected by the courts. (See People v. Robles (2000) 23 Cal.4th 1106, 1114 [“It is true,
of course, that we occasionally have used the concept of drafters’ error in applying statutes.
However, we ‘do[ ] not lightly assume drafting error . . . ’”]; People v. Garcia (1999) 21 Cal.4th
1, 14 [“Consistent with the separation of powers doctrine (Cal. Const., art. III, § 3), we have
previously limited ourselves to relatively minor rewriting of statutes and, even then, only
resorted to that drastic tool of construction when it has been obvious that a word or number had
been erroneously used or omitted.”].) But regardless of whether this omission falls into this
category, PRCS offenders who meet the criteria of having served their full sentence on their
primary offense would have a decent equal protection argument that they are entitled to
consideration for early release as well. Granted, distinguishing between parolees and PRCS
generally “does not violate equal protection because persons convicted of different crimes are not
similarly situated for equal protection purposes.” (People v. Gutierrez (2016) 245
Cal.App.4th 393, 403; see also People v. Espinoza (2014) 226 Cal.App.4th 635, 639.) But
ultimately, the test “is not whether persons are similarly situated for all purposes, but ‘whether
they are similarly situated for purposes of the law challenged.’” (People v. Cruz (2012) 207
Cal.App.4th 664, 674.) And in light of the stated purpose behind Prop 57, it is difficult to
conceive of a rational basis for allowing early release to more serious offenders than less serious
offenders. (See People ex rel. San Francisco & S.J. Ry. Co. v. Craycroft (1896)111 Cal.
544, 547 [“generally, no law will be so applied as to work a palpable absurdity”]; see also
People v. Superior Court (2016) 208 Cal.Rptr.3d 636, 645 [recognizing that “persons
originally sentenced under section 2900.5 who are released on parole and persons subject to
postrelease community supervision under section 3451 should be treated similarly for some
purposes” – albeit finding “prisoners who are resentenced under Proposition 36 are not situated
similarly with persons originally sentenced under section 2900.5” for purposes of determining
whether to apply excess custody credits, emphasis added by IPG].)
18
Although Prop 57 states a “[a]ny person convicted of a nonviolent felony offense and sentenced
to state prison shall be eligible for parole consideration”, it does not specify the nature of the
hearing to determine whether such a person will be released. (Cal. Const., art. I, § 32, subd.
(a)(1).)
Presumably some hearing will occur. In the Analysis by the Legislative Analyst, there was a
discussion of “Parole Consideration Hearings” in order to give the voters the background
information necessary to understand what Prop 57 would do. (Ballot Pamp., Primary Elec. Nov.
8, 2016) Analysis by the Legislative Analyst at p. 54.) That discussion described the hearing
available to a prisoner who has served the minimum number of years required for an
indeterminate sentence as a “parole consideration hearing.” (Ibid.) It is reasonable to conclude
some of the regulations governing the parole consideration hearings issued by the Department of
Corrections and Rehabilitation pursuant to article I, section 32(b) will be similar to the
regulations governing the parole suitability hearings referred to by the Legislative Analyst.
However, whether Prop 57 parole consideration hearings will parallel the parole suitability
hearings currently authorized by statute and regulation (see e.g., Pen. Code, § 3041; California
Code of Regulations, title 15, § 2402) remains to be seen.
Prop 57 did not identify the criteria to be used by the Department of Corrections and
Rehabilitation in determining whether a prisoner who is eligible for parole consideration should
be released. Subdivision (b) of section 32 of article I of the California Constitution, as enacted by
Prop 57, states: “The Department of Corrections and Rehabilitation shall adopt regulations in
furtherance of these provisions, and the Secretary of the Department of Corrections and
Rehabilitation shall certify that these regulations protect and enhance public safety.”
The Department of Corrections and Rehabilitation (hereinafter “CDCR”) already has statutory
authority to adopt regulations pursuant to the Administrative Procedures Act (Gov. Code, §
11340 et seq.). The Administrative Procedures Act requires that proposed regulations proffered
11. What criteria will be used to determining whether someone eligible for early parole consideration gets released? becoming eligible for early release under Prop 57, i.e., what is the “full term” of a “primary offense”?
10. Will there be a hearing to determine whether and when a defendant who is eligible for “parole consideration” should be released? becoming eligible for early release under Prop 57, i.e., what is the “full term” of a “primary offense”?
19
by a state agency (such as the CDCR) be provided to the Office of Administrative Law and be
subject to some public scrutiny and input. (See e.g., Gov. Code, § 11343, 11346.8.) For example,
a public hearing is required, if at least 15 days before the close of the written comment period, an
interested person submits in writing a request to hold a public hearing. (Gov. Code, §
11346.8(a).) And the state agency promulgating the regulation is required to “consider all
relevant matter presented to it before adopting, amending, or repealing any regulation.” (Ibid.)
Regulations issued subject to the Administrative Procedures Act can be challenged in court. Any
interested person may obtain a judicial declaration as to the validity of a regulation by bringing
an action for declaratory relief in the superior court in accordance with the Code of Civil
Procedure (Govt. Code, § 11350(a)). In addition to any other ground that may exist, a regulation
may be declared invalid if “[t]he agency’s determination that the regulation is reasonably
necessary to effectuate the purpose of the statute, court decision, or other provision of law that is
being implemented, interpreted, or made specific by the regulation is not supported by
substantial evidence.” (Govt. Code, § 11350(b)(1)).)
In adopting the regulations authorized by Prop 57, it is likely that the CDCR will be subject to the
Administrative Procedures Act. However, one limitation on the regulations is that they may not
conflict with statutory or constitutional law. (See Gov. Code, §§ 11342.1, 11342.2.) Whether this
limitation will apply when the authority to issue regulations given to the CDCR has been made
part of the California Constitution (see Cal. Const., art. I, § 32(b)) is an open question.
In 2008, California voters enacted “The Victims’ Bill of Rights Act of 2008: Marsy’s Law” by
amending Article 1, section 28 of the California Constitution. The amendment provided some
“collective” rights as well as some individual enforceable rights for victims of crimes.
The individual enforceable rights include the following rights:
● “[t]o reasonable notice of all public proceedings, . . . upon request, at which the defendant
and the prosecutor are entitled to be present and of all parole or other post-conviction
release proceedings, and to be present at all such proceedings.” (Cal. Const., art. I, §
28(b)(7), emphasis added by IPG.)
12. Will victims of the crimes committed by Prop 57 eligible offenders have a right to be present and heard at “parole consideration” hearings under Marsy’s Law? becoming eligible for early release under Prop 57, i.e., what is the “full term” of a “primary offense”?
20
● “[t]o be heard, upon request, at any proceeding, including any delinquency proceeding,
involving a post-arrest release decision, plea, sentencing, post-conviction release decision,
or any proceeding in which a right of the victim is at issue.” (Cal. Const., art. I, § 28(b)(7),
emphasis added by IPG.)
● “[t]o be informed, upon request, of the conviction, sentence, place and time of incarceration,
or other disposition of the defendant, the scheduled release date of the defendant, and the
release of or the escape by the defendant from custody.” (Cal. Const., art. I, § 28(b)(12),
emphasis added by IPG.)
● “[t]o be informed of all parole procedures, to participate in the parole process, to provide
information to the parole authority to be considered before the parole of the offender, and to be
notified, upon request, of the parole or other release of the offender. (Cal. Const., art. I, §
28(b)(15), emphasis added by IPG.)
● “[t]o have the safety of the victim, the victim’s family, and the general public considered before
any parole or other post-judgment release decision is made.” (Cal. Const., art. I, §
28(b)(15), emphasis added by IPG.)
Any parole consideration hearing under Proposition 57 would seem to fall squarely within the
definition of a “post-conviction release proceeding” or “post-judgment release decision.” And, at
least as to each of these specific rights, there is nothing on the face of Prop 57 that precludes
these rights from being enforced - especially considering the general rule that when
“constitutional provisions can reasonably be construed so as to avoid conflict, such a
construction should be adopted.” (Bowens v. Superior Court (1991) 1 Cal.4th 36, 45.)
Moreover, there is statutory authority for enforcement of these rights that has not been
abrogated by Prop 57. Penal Code section 3043 requires the Board of Parole Hearings (upon
request of the victim) to provide “notice of any hearing to review or consider the parole
suitability for any inmate in a state prison” “90 days before the hearing” and requires the board
to “notify every person entitled to attend the hearing confirming the date, time, and place of the
hearing” no later than 14 days before the date selected for the hearing. (Pen. Code, § 3043(a).)
Section 3043 also gives victims, and members of the victims’ families, and two representatives
(including potentially, prosecutors) the right to appear and be heard at the hearings. (Pen. Code,
§ 3043(b)-(e).)
21
Bottom line: Because many of these rights are contingent
upon a request by the victim to exercise the right, it is
incumbent upon prosecutors obtaining convictions (by way of
trial or plea) of defendants who might be subject to early
release to let victims know that they must put in a request that
they wish to exercise one or more of their Marsy’s Law rights.
If the Department of Corrections and Rehabilitation fails to respect these rights, the victim or
the prosecution should be able to enforce them in court. (See Cal. Const., art. I, § 28(c)(1) [“A
victim, the retained attorney of a victim, a lawful representative of the victim, or the
prosecuting attorney upon request of the victim, may enforce the rights enumerated in
subdivision (b) in any trial or appellate court with jurisdiction over the case as a matter of right.
The court shall act promptly on such a request.], emphasis added by IPG.)
Marsy’s Law also established various “collective rights” of victims of crime. Among those
potentially, but not necessarily, in conflict with Prop 57:
● “The rights of victims also include broader shared collective rights that are held in common
with all of the People of the State of California and that are enforceable through the enactment of
laws and through good-faith efforts and actions of California's elected, appointed, and publicly
employed officials. These rights encompass the expectation shared with all of the people of
California that persons who commit felonious acts causing injury to innocent victims will be . . .
sufficiently punished so that the public safety is protected and encouraged as a
goal of highest importance.” (Cal. Const., art. I, § 28(a)(4), emphasis added by IPG.)
● “Victims of crime have a collectively shared right to expect that persons convicted of
committing criminal acts are sufficiently punished in both the manner and the length of the
sentences imposed by the courts of the State of California. This right includes the right to expect
that the punitive and deterrent effect of custodial sentences imposed by the courts
will not be undercut or diminished by the granting of rights and privileges to
prisoners that are not required by any provision of the United States Constitution or by the
laws of this State to be granted to any person incarcerated in a penal or other custodial facility in
this State as a punishment or correction for the commission of a crime. (Cal. Const., art. I, §
28(a)(5), emphasis added by IPG.)
22
● “Reform of the parole process. The current process for parole hearings is excessive, especially
in cases in which the defendant has been convicted of murder. The parole hearing process
must be reformed for the benefit of crime victims.” (Cal. Const., art. I, § 28(f)(6),
emphasis added by IPG.)
Whether and/or how these collective rights can be enforced is not specified in Marsy’s Law.
Arguably, these rights could conflict with Prop 57 - but that will depend to a certain extent on
how Prop 57 is carried out in practice. Since the regulations still must be adopted, it would be
premature to speculate on any conflict.
That being said, it is likely the courts will be reluctant to find any conflict. As stated in City and
County of San Francisco v. County of San Mateo (1995) 10 Cal.4th 554, “one
constitutional provision ‘should not be construed to effect the implied repeal of another
constitutional provision.’” (Id. at p. 567.) “[I]f the two provisions can be construed to apply
concurrently, we must do so.” (Ibid.) “Only if they are in irreconcilable conflict must we decide
which constitutional provision prevails.” (Ibid.) Moreover, Prop 57 is the more recent and
arguably more specific provision, which would weigh in favor of it trumping Marsy’s law. (See
Bowens v. Superior Court (1991) 1 Cal.4th 36, 45 [“As a means of avoiding conflict, a recent,
specific provision is deemed to carve out an exception to and thereby limit an older, general
provision.”].)
The parole consideration provisions of Proposition 57 on their face only apply to persons
“sentenced to state prison[.]” (Cal. Const., art. I, § 32(a)(1).) No mention is made of county jail
in Proposition 57 at all. Defendants serving time in county jail pursuant to Penal Code section
1170(h) may seek to bring an equal protection challenge claiming they also should be entitled to
consideration for early release. It is unlikely such a challenge will prevail.
The “first prerequisite to a meritorious claim under the equal protection clause is a showing that
the state has adopted a classification that affects two or more similarly situated groups in an
unequal manner.” (People v. Brown (2012) 54 Cal.4th 314, 328.) “This initial inquiry is not
whether persons are similarly situated for all purposes, but ‘whether they are similarly situated
for purposes of the law challenged.’” (Ibid.) Moreover, even if the groups are similarly situated,
13. Does Proposition 57 have any impact on defendants convicted of felonies who are serving their time in county jail under an 1170(h) sentence?
becoming eligible for early release under Prop 57, i.e., what is the “full term” of a “primary offense”?
23
“if the classification does not involve a suspect class, legislation is presumed to be valid under the
equal protection clause if the statutory classification is rationally related to a legitimate state
interest.” (People v. Lopez (2013) 218 Cal.App.4th Supp. 6, 10–11 citing to People v. Mora
(2013) 214 Cal.App.4th 1477, 1483.)
Defendants serving time in county jail pursuant to Penal Code section 1170(h) are not similarly
situated to defendants serving time in state prison. (See e.g., People v. Lopez (2013) 218
Cal.App.4th Supp. 6, 11 [“individuals who face incarceration in state prison versus those who are
incarcerated in county jail are not similarly situated for purposes of section 41500, subdivision
(a)” which bars prosecution of nonfelony violations where a defendant is serving time in state
prison, because a defendant serving time in prison, as opposed to county jail, “would generally be
serving a longer sentence and face greater obstacles in rehabilitation and reintegrating back into
society upon release”].) Nor does “[c]lassifying persons by their commitment to either county jail
or state prison” involve a suspect class. (People v. Lopez (2013) 218 Cal.App.4th Supp. 6, 10.)
Thus, all the state needs to show is a rational basis for distinguishing between those committed
to county jail and those in state prison. And the stated purposes behind Proposition 57 (i.e., to
“[s]ave money by reducing wasteful spending on prisons”, “[p]revent federal courts from
indiscriminately releasing prisoners”, and “avoid the release of prisoners by federal court
order” more than adequately provide a rational basis for treating state prisoners differently than
county jail inmates. (Section 2 of Prop 57; Cal. Const., art. I, § 32(a).) After all, most county jails
are not facing a federal court order to reduce their population.
Prop 57 grants to the California Department of Corrections and Rehabilitation (CDCR) the
“authority to award credits earned for good behavior and approved rehabilitative or educational
achievements.” (Section 3 of Prop 57; Cal. Const., art. I, § 32(a)(2).) This authority was
engrafted to the California Constitution. (Ibid.)
There is no stated limitation on which inmates are eligible for additional credits or how much
CDCR can increase existing credits. However, CDCR is required to adopt regulations regarding
these new credits. And these regulations are subject to the requirement that CDCR certify they
“protect and enhance public safety.” (Cal. Const., art. I, § 32(b).)
14. What impact does Prop 57 have on the ability of state prisoners to obtain additional conduct credits? becoming eligible for early release under Prop 57, i.e., what is the “full term” of a “primary offense”?
24
Even before the passage of Prop 57, state law allowed the CDCR to award conduct credits under
certain conditions to prison inmates that could reduce the time they had to serve in state prison.
(See Pen. Code, §§ 2933, 2933.5.) However, there are various statutes that limit how much
conduct credit state prisoners can receive. For example, defendants convicted of murder are not
entitled to any conduct credit (Pen. Code, § 2933.2), persons convicted of violent felonies may
not accrue more than 15% of credit (Pen. Code, § 2933.1), and persons sentenced under the
Three Strikes law may not accrue state prison credits under in excess of 20% of the total term of
imprisonment and may not accrue any credits until placed in state prison (Pen. Code, §§
667(c)(5), 1170.12(a)(5)).
Will that fact that the CDCR was given authority to award credits earned for good behavior and
rehabilitative or educational achievements trump statutory limitations on the amount of credit
certain prisoners can currently receive?
The language of subdivision (a)(2) of section 32 does not state the authority to award credits is
either subject to, or overrides, existing statutory limitations on obtaining conduct credits. In the
Analysis by the Legislative Analyst, there was a discussion of sentencing credits in the portion
giving voters the necessary background information that noted that under state law CDCR is
entitled to award credits under certain conditions but mentioned that “State law limits the
amount that inmate sentences can be reduced through credits” and gave as an example that
“more than half of inmates eligible for credits can only reduce their sentences by 15 percent
because they have a conviction for a violent offense.” (Ballot Pamp., Primary Elec. Nov. 8, 2016)
Analysis by the Legislative Analyst at p. 55.)
Expect defendants to argue the inclusion of background information about current limitations
on conduct credit implies that Prop 57 would be changing these limitations but it is a weak
implication. It is possible that the CDCR and/or the courts will find that these statutory
limitations may be overridden by CDCR since the authority to do so is enshrined in the California
Constitution while the limitations are only statutorily-based prohibitions. In any event,
prosecutors should not assume that the statutory limitations on the amount of
credit will necessarily be respected by the CDCR.
A. Will CDCR’s authority to award additional credits override existing
statutory limitations on the amount of conduct credit can be
received by certain defendants?
25
Before Prop 57 passed, prosecutors could file directly against a minor in adult court in three
different kinds of circumstances. Prosecutors had to file directly against a minor in adult court
in one set of circumstances. Prop 57 has now eliminated the ability of the prosecutor to file
directly against any minor in adult court. If prosecutors want to proceed against a minor in
criminal court, there must be a transfer hearing. (See Welfare and Institutions Code section 602
and 707 as amended by Proposition 57.)
Pre-Prop 57 Law Before the passage of Prop 57, direct filing in adult court against a minor was mandatory when a
minor 14 years of age or older committed murder, if “one of the circumstances enumerated in
subdivision (a) of Section 190.2 of the Penal Code [was] alleged by the prosecutor, and the
prosecutor alleges that the minor personally killed the victim.” (Welf. & Inst. Code, 602(b)(1).)
It was also mandatory when a minor 14 years of age or older personally committed one or more
of several designated serious sex offenses and “one of the circumstances enumerated in the One
Strike law, subdivision (d) or (e) of Section 667.61 of the Penal Code” was alleged. (Welf. & Inst.
Code, 602(b)(2).)
Before the passage of Prop 57, the prosecution had the discretion to direct file against the minor
is three circumstances:
First, when the minor was 16 years of age or older and was accused of committing an offense
listed in Welfare and Institutions Code section 707(b). (Welf. & Inst. Code, § 707(d)(1)). These
offenses included: (1) Murder; (2) Arson; (3) Robbery; (4) Rape with force; (5) Various sex
offenses; (6) Kidnapping for robbery or ransom; (7) Assault GBI; (8) Violent felonies under Pen.
Code, § 667.5; (9) Carjacking; and (10) Personal use of a weapon.
Second, when the minor was 14 years of age or older and one or more of the following
circumstances listed in Welfare and Institutions Code section 707(d)(2) applied. (Welf. & Inst.
Code, § 707(d)(2).) These circumstances included: (1) when an allegation was made that if the
offense was committed by an adult, it would be punishable by death or imprisonment in the state
prison for life; (2) when an allegation was made the minor personally used a firearm during the
15. What impact does Prop 57 have on the prosecutor’s ability to directly file charges against juvenile defendants in adult criminal court? becoming eligible for early release under Prop 57, i.e., what is the “full term” of a “primary offense”?
26
commission or attempted commission of a felony, as described in Penal Code sections 12022.5 or
12022.53(3); and (3) when an allegation was made the minor committed an offense listed in
Welfare and Institutions Code section 707(b) and had previously been found to have committed
a section 707(b) offense; the offense was committed for the benefit of a street gang pursuant to
Penal Code section 186.22; the offense was for the purpose of intimidating or interfering with
another person’s constitutional rights because the person belonged to a protected class; or the
victim of the crime was age 65 years or older or was knowingly disabled. (Ibid.)
Third, when the minor was 16 years of age or older and it was alleged the minor committed an
offense listed in Welfare and Institutions Code section 707(d)(3) and the minor had previously
been found to be a ward of the court for any felony offense when 14 years of age or older. (Welf.
& Inst. Code, § 707(d)(3)). The offenses listed in section 707(d)(3) included (1) a felony in which
the victim of the crime was age 65 years or older or was knowingly disabled; (2) an offense which
was committed for the purpose of intimidating or interfering with another person’s
constitutional rights because the person belonged to a protected class; and (3) an offense
committed for the benefit of a street gang under Penal Code section 186.22. (Ibid.)
Post-Prop 57 Law Prop 57 eliminated subdivision (b) in Welfare and Institutions Code section 602(a) which
required mandatory direct filing. (See Welf. & Inst. Code, § 602, as amended by Prop 57.)
Prop 57 amended Welfare and Institutions Code section 707 so that it now only allows a minor to
be prosecuted in a court of criminal jurisdiction when the minor is 16 years of age or older and
commits any felony, or is 14 or 15 years of age and commits an offense listed in subdivision (b) of
707 (i.e., many serious or violent felonies), and a “motion to transfer the minor from
juvenile court to a court of criminal jurisdiction” is made. (See Welf. & Inst. Code, §
707(a)(1) as amended by Prop 57.) Moreover, subdivision (2) of section 707(a) expressly states
that it is the juvenile court that “shall decide whether the minor should be transferred to a court
of criminal jurisdiction[.]” (Welf. & Inst. Code, § 707(a)(2) as amended by Prop 57.)
*Editor’s note regarding “Transfer Hearing” versus “Fitness Hearing”: The language of
Proposition 57 uses the term “transfer hearing” rather than “fitness hearing” to refer to hearings in which
the juvenile court decides whether to allow a minor to be prosecuted in adult court. (See Welf. & Inst.
Code, § 707(a)(1)&(2) as amended by Prop 57.)
27
Some of the criteria for determining whether a minor who committed an offense listed in
Welfare and Institutions Code section should be prosecuted in criminal court is unchanged by
Prop 57.* Before and after Prop 57, for example, a court considers the criteria currently
identified in Welfare and Institutions Code section 707(a)(2)(A)-(E) in determining whether a
minor is a fit and proper subject to be handled in juvenile court.
On the other hand, certain presumptions of unfitness for juvenile court have been eliminated.
Previously, a 16-year old minor who was alleged to have committed any felony offense and who
had previously been found to be a ward of the court for any felony offense when 14 years of age
or older and had previously committed two or more felony offenses was generally “presumed to
be not a fit and proper subject to be dealt with under the juvenile court law[.]” (Former Welf. &
Inst. Code, § 707(a)(2)(B).) This is no longer true as all of former section 707(a)(2) was
eliminated.
Previously, a minor who was 14 years of age or older and was alleged to have a committed an
offense listed in Welfare and Institutions Code section 707(b) was generally “presumed to be not
a fit and proper subject to be dealt with under the juvenile court law[.]” (Former Welf. & Inst.
Code, § 707(c).) This is no longer true as all of former section 707(c) was eliminated.
Whether a juvenile defendant facing pending charges, or whose conviction is not yet final, is
entitled to the benefit of a transfer hearing (either before or after conviction) when the
prosecution has direct-filed in criminal court before November 9, 2016 is an open question.
17. Is the requirement that a juvenile have a “transfer” hearing before being prosecuted in adult court retroactive to pending cases? release under Prop 57, i.e., what is the “full term” of a “primary offense”?
16. What impact does Prop 57 have on the criteria used by the juvenile court in determining whether a minor should be subject to criminal proceedings? becoming eligible for early release under Prop 57, i.e., what is the “full term” of a “primary offense”?
*DDA Storton note: The five criteria used by judges for many years at fitness/transfer hearings to
decide if a minor’s case should be sent to adult court were amended as of January 1, 2016 to make the
criteria much more favorable to juvenile offenders in an effort to reduce the number of juveniles
prosecuted as adults. Proposition 57 retains these favorably-worded criteria.
28
However, IPG respectfully suggests that the most likely
approach to be taken by the appellate courts is one that views
the opportunity to receive a lesser punishment (which would
occur if the case is handled in juvenile court) bestowed by
Prop 57 to be retroactive to all cases not yet final. This means
that, at some point, a juvenile defendant prosecuted in
criminal court whose case is not yet final will be entitled to a
transfer hearing.
How the issue is resolved may turn on two factors: (i) whether the amendments to Welfare and
Institutions Code sections 602 and 707 may properly be viewed as having both procedural and
substantive aspects; and (ii) the stage the prosecution had reached at the time Prop 57 passed.
It is possible to view the changes enacted by Prop 57 as wholly procedural and thus not
retroactive to any case in which the prosecution had already direct filed against the juvenile
defendant. And it is possible to review the changes enacted by Prop 57 as wholly substantive
and thus fully retroactive to any case in which the prosecution direct filed against a juvenile but
which is not yet final.
In post-conviction/post-sentencing cases, this likely means a remand for a transfer
hearing. If the court holding the remanded transfer hearing determines the defendant is fit to be
prosecuted in juvenile court under the new standards, the defendant would have to be
resentenced as if there had been a finding in juvenile court instead of a conviction in a criminal
court. Conversely, if the court holding the remanded transfer hearing determines the defendant
is not fit to be prosecuted in juvenile court under the new standards, the criminal conviction and
sentence should be upheld. No harm, no foul.
In pre-conviction or post-conviction/pre-sentencing cases, this likely means a transfer
hearing must occur before sentencing. It is less certain whether it must occur before trial, before
preliminary examination, or immediately. So long as the defendant is given a transfer hearing
before sentencing, it is unlikely (but not impossible) that a court will find that conducting
preliminary hearing or trial in criminal court after the passage of Prop 57 prejudiced the
defendant such that the preliminary hearing or trial would have to be redone – even if the judge
holding the transfer hearing determines the defendant is properly handled in juvenile court.
29
To help prosecutors decide how to proceed in any pending direct-filed case now
that Prop 57 has passed, we have conjured up an imaginary oral argument for prosecutors to
contemplate. In the scenario posed, it should be assumed that the prosecution had convinced
the trial court that Prop 57 was not retroactive in any manner and proceeded in a direct file case
through preliminary examination, trial, and sentencing without any transfer hearing being held.
It should also be assumed that the defense has now filed an appeal, asking that the conviction be
reversed for failure to hold a transfer hearing prior to preliminary examination, trial and/or
sentencing.
The imaginary argument is constructed in a manner that reflects that the questioning of the
defense by the appellate court incorporates the prosecution’s likely arguments in support of the
position that a transfer hearing was unnecessary. (J= Judge. D= Defense Counsel.)
J: Counsel, I am assuming that in order for your client to prevail, this Court must be convinced that
Prop 57 applies retroactively to cases in which the prosecution direct filed against a juvenile. But
Penal Code section 3 states: “No part of [the Penal Code] is retroactive, unless expressly so
declared.” Penal Code section 3 embodies the general rule relating to retroactive application of
new statutes, which is that “legislative enactments are generally presumed to operate
prospectively and not retroactively unless the Legislature expresses a different intention.”
(Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208; accord People v. Brown
(2012) 54 Cal.4th 314, 319.) Proposition 57 did not specify whether it applies prospectively or
retroactively to cases involving juvenile defendants who the People filed against before
November 9, 2017. Accordingly, why shouldn’t the issue of retroactivity of Prop 57 be governed
by the basic principle codified in Penal Code section 3?
D: Well, to begin with, we take issue with the assumption that by requiring the prosecution to hold
a transfer hearing before proceeding to preliminary examination or trial, Prop 57 is being applied
retroactively – at least when the preliminary examination or trial took place on or after
November 9, the effective date of Prop 57. In the instant case, while the case was direct-filed
against the defendant before the passage of Prop 57, the People purposefully plowed ahead to
preliminary examination, trial, and sentencing after the passage of Proposition 57 - even though
we begged for the case to be temporarily halted for a transfer hearing. Applying the requirement
of Prop 57 that a case not be prosecuted in adult court until a judge has determined a “minor
should be transferred to a court of criminal jurisdiction” (new Welf. & Inst. Code, § 707(a)(2)) is
a prospective, not a retrospective application of Proposition 57.
30
We also will be arguing that even if applying Prop 57 to cases in which the prosecution has
direct-filed against a juvenile defendant before its passage is a retroactive application, it is
justified because Prop 57 reduced the potential punishment for minors and when the
punishment is reduced, the new law is properly applied retroactively to every case not yet final
under the rule adopted in In re Estrada (1965) 63 Cal.2d 740.
J: Let’s hold off on the Estrada argument and deal with the first issue you raised: Why do you say
that requiring a transfer hearing after the People have already direct filed, albeit before
preliminary examination or trial is held, is a prospective application of the rule?
D: I say so based on the California Supreme Court decision in Tapia v. Superior Court (1991) 53
Cal.3d 282. In Tapia, the California Supreme Court had to address the question of whether
Proposition 115 (the “Crime Victim’s Justice Reform Initiative”) should be applied to trials when
the crime took place before its passage but the trial would take place after its passage. The
Tapia court held “that certain provisions addressing the conduct of trials, and certain other
provisions changing the law to the benefit of defendants, may be applied to such prosecutions.”
(Id. at p. 286.) The Tapia court had to answer “the question of what the terms ‘prospective’ and
‘retrospective’ mean[t].” The defendant in Tapia argued that “a law is being applied
retrospectively if it is applied to the prosecution of a crime committed before the law’s effective
date.” (Id. at p. 288.)
The Tapia court recognized that when a new law “‘change[s] the legal consequences of an act
completed before [the law’s] effective date,’ namely the defendant's criminal behavior[,]”
applying the law to such conduct would be a retrospective application. (Ibid.) Moreover, the
court observed that “[a]pplication of such a law to past crimes would also violate the
constitutional rule against ex post facto legislation.” (Ibid.)
However, the Tapia court held that “laws which address the conduct of trials which have
yet to take place, rather than criminal behavior which has already taken place” are being
applied prospectively. (Id. at p. 288, emphasis added by IPG.) The Tapia court reasoned that
“[e]ven though applied to the prosecution of a crime committed before the law’s effective date, a
law addressing the conduct of trials still addresses conduct in the future. . . . Such a
statute ‘“is not made retroactive merely because it draws upon facts existing prior to its
enactment.... [Instead,] [t]he effect of such statutes is actually prospective in nature since they
relate to the procedure to be followed in the future.’ (Citation omitted.) For this reason, we have
31
said that ‘it is a misnomer to designate [such statutes] as having retrospective effect.’ (Citation
omitted.)” (Tapia at p. 288, emphasis added by IPG.)
In our case, all the criminal proceedings (preliminary examination, trial, and sentencing) were
conducted in adult court without any determination by a juvenile court judge that the defendant
was not fit for proceedings in juvenile court. And all these proceedings took place after Prop 57
went into effect. Even assuming the elimination of direct-filing is merely a procedural change
impacting the conduct of preliminary hearings or trials, rather than one that changed the legal
consequences of criminal behavior to the benefit of the defendant, the preliminary hearing, trial,
and sentencing was not conducted in a manner demanded by Prop 57. At a minimum, Prop 57
demanded a judicial determination that the defendant be subject to criminal proceedings. That
never occurred. Had that determination occurred, it was likely the defendant would have been
found fit for juvenile proceedings, no further proceedings in criminal court would have been
permitted, and the law “governing the conduct of trials” would be that governing juvenile trials.
(See John L. v. Superior Court (2004) 33 Cal.4th 158, 171 [citing to Tapia for the
proposition that the “law governing the conduct of trials is being applied ‘prospectively’ when it
is applied to a trial occurring after the law’s effective date, regardless of when the underlying
crime was committed.”].)
The defendant was thus not only improperly subjected to proceedings in a forum which did not
have jurisdiction to conduct those proceedings but he was subjected to proceedings that were
fundamentally different than proceedings in adult court. (See In re Antwon R. (2001) 87
Cal.App.4th 348, 350-351 [“[j]uvenile proceedings are not criminal prosecutions. . . . “[t]he State
has ‘a parens patriae interest in preserving and promoting the welfare of the child,’ [citation],
which makes a juvenile proceeding fundamentally different from an adult criminal trial.’” (Id. at
pp. 350-351.)
J: But there is an assumption built into your argument that may not be warranted. The
determination of which court (adult or juvenile) should handle further proceedings had already
been made before the passage of Prop 57. In Tapia, the court was dealing with a change in
procedures that impacted how the trial was conducted. It did not apply the new procedures to
proceedings that had already taken place. For example, the Tapia court held that when it came
to the new reciprocal discovery rules enacted by Proposition 115, “[a]pplication of the discovery
provisions to compel production of evidence obtained by defense counsel before Proposition
115’s effective date would be retroactive” and thus prohibited, while discovery that was obtained
32
Well, that highlights the crux of the matter, doesn’t it? Is the
mere filing of charges giving an adult court jurisdiction to
proceed on a juvenile defendant a discrete and finite act - so
that once it is done, it cannot be revisited without such
revisiting being viewed as a retroactive application of a statute
enacted after the filing of charges? Or should jurisdiction to
try the case be considered ongoing - so that if a statute is
passed that deprives the court of jurisdiction to continue with
proceedings that have not yet occurred (like the preliminary
examination, trial, and sentencing that occurred in this case),
the jurisdictional question may be revisited without such
revisiting being viewed as a retroactive application.
by defense counsel after Proposition 115’s effective date could be subject to disclosure. (Id. at p.
300.)
D:
I would argue requiring a hearing to determine if jurisdiction can continue is not a retroactive
application.
Granted, there is no California case that I am aware that has dealt with this particular
circumstance. But it is instructive to consider one of the cases the Tapia court relied on in
coming to its conclusion that the trial procedures enacted by Proposition 115 were being applied
prospectively. That case was Andrus v. Municipal Court (1983) 143 Cal.App.3d 1041.
In Andrus, the defendant was charged with driving under the influence. He filed a pretrial
motion for a court reporter or other recording device in his misdemeanor case. This was denied
and he filed a writ challenging the denial in superior court. The superior court denied his writ
and the defendant filed a timely notice of appeal. However, after defendant filed his notice of
appeal and while the appeal was still pending, the statute allowing his appeal was amended to
prevent such an appeal from being taken – although it gave a court discretion to review the
denial of the writ through a different mechanism (a petition for extraordinary relief). Even
though the defendant had already filed an appeal before the statute went into effect, the
Andrus court immediately applied the new statute eliminating the right to appeal and treated
33
it as a petition for extraordinary relief. (Id. at pp. 1044-1045.) In other words, in Andrus,
although the filing necessary to begin the process of appeal had already begun, this did not
prevent the process from being diverted and transformed into a different type of challenge even
though the change in the law requiring this diversion and transformation was enacted after the
process had begun. That is exactly the kind of situation we have with Prop 57.
It is also instructive to consider that aside from the primary reason why the California Supreme
Court in Tapia allowed application of the new rules of procedure in trials of crimes that
occurred before Proposition 115 passed, the Tapia court justified its holding under an ancillary
rationale. This is what they said: “[T]he voters in adopting Proposition 115 expressly declared
that their purposes were to reduce the unnecessary ‘costs of criminal cases’ and to ‘create a
system in which justice is swift and fair....’ (Prop. 115, § 1, subds. (b), (c).) We can best effectuate
this purpose by giving the earliest possible application to reforms designed to
accelerate the adjudication of criminal cases.” (Tapia at p. 293.)
Here, two of the express purposes behind Proposition 57 were to “[s]top the revolving door of
crime by emphasizing rehabilitation, especially for juveniles” and to “[r]equire a judge, not a
prosecutor, to decide whether juveniles should be tried in adult court.” (Proposition 57, Sec. 2
(5)], emphasis added.) By parity of reasoning to Tapia, this court can best effectuate the
purposes behind Prop 57 by “giving the earliest possible application to [the] reforms” enacted by
Prop 57. This means requiring that transfer hearings be heard immediately in any case or, at the
very latest before a defendant is tried in adult court. Moreover, this interpretation is consistent
with Section 9 of Prop 57, which states Prop 57 “shall be liberally construed to effectuate its
purposes.”
J: Just so I am clear, are you claiming the criminal court lost jurisdiction to continue with the case
once Prop 57 passed?
D: In one sense, yes. In another sense, no. I recognize that in In re Harris (1993) 5 Cal.4th 813,
the California Supreme Court rejected the claim of a juvenile (who had been erroneously tried in
criminal court before he was 16) that the superior court lacked subject matter jurisdiction to
try him under general, adult law. The Harris court held that “[w]hether a case should proceed
in juvenile or adult court ‘does not involve an issue of subject matter jurisdiction.’” (Id. at p.
837.) “There is but one superior court in a county, though it is divided into different
departments.” (Ibid.) Since the defendant was charged with a felony, the Harris court held
34
the superior court had subject matter jurisdiction. However, the Harris court also stated that
“the criminal department of the superior court lacked jurisdiction to act, and its trial of [the
defendant] thus constituted an excess of jurisdiction, not a lack of fundamental jurisdiction.”
(Ibid, emphasis added by IPG.) Here, the trial court in excess of its jurisdiction by proceeding
with the defendant’s prosecution without a determination by a judge the defendant was unfit for
juvenile proceedings.
J: We can return to that distinction later in our discussion if we find it was error to proceed. But
getting back to your argument about whether requiring a transfer hearing before proceeding to
preliminary examination, trial or sentencing is a retroactive or prospective application: I see your
point. However, I am not yet convinced that negating or undoing an earlier direct filing by
requiring that any pending case – no matter the stage of the proceedings – must be immediately
remanded for a transfer hearing is not a retroactive application of Prop 57.
Perhaps an analogy should be drawn to how the California Supreme Court handled the question
of the retroactivity of Proposition 8’s ban on same sex marriages. In Strauss v. Horton
(2009) 46 Cal.4th 364 [subsequently abrogated on different grounds in Obergefell v. Hodges
(2015) 135 S.Ct. 2584] the court held that while voters could prevent same-sex marriages from
occurring after passage of Proposition 8, it could not reach back and invalidate same sex
marriages that occurred before the effective date of Proposition 8. (Id. at p. 472.) In the later
California Supreme Court decision In re E.J. (2010) 47 Cal.4th 1258, the court explained that
its rationale in Strauss for holding Proposition 8’s ban on same-sex marriage could not be
applied retroactively to same-sex couples who married prior to the initiative’s effective date was
based on the fact that Proposition 8 “could not negate or undo permanent legal
relationships that were allowed—indeed protected—by the Constitution at the time they
were entered into” unless the voters clearly provided otherwise. (E.J. at p. 1278, emphasis
added by IPG.) Marriage, too, is an ongoing process but once the marriage had been initiated it
could not be undone by legislation. Similarly, it seems it could be argued that once there had
been a lawful union of juvenile defendant to criminal court, it should be not negated or undone
by subsequent legislation.
I am also not convinced that requiring a further delay in a trial for the juvenile court to conduct a
transfer hearing (as opposed to, for example, conducting the hearing after conviction but before
sentencing) will result in the earliest application of the reforms instituted by Prop 57, especially
if the juvenile court determines the defendant should be tried as an adult. My understanding is
35
that getting to the point where the real significant differences arise between adult and juvenile
court (i.e., at sentencing, after determination of guilt) would be delayed by holding transfer
hearings in cases already in progress in criminal court.
D: Not to interrupt, your honor, but no transfer hearing occurred in this case at any point in the
trial and the prosecution is arguing that no transfer hearing ever need be conducted.
J: Well, at the risk of telegraphing where this Court is headed, let me say that as much as both
parties would like this Court to conclude a transfer hearing is either required immediately or is
never required, this Court is not obligated to adopt either extreme position. In any event, before
we get to the final ruling, let’s hear your second argument. As I understand it, your argument is
that having a judge rather than a prosecutor decide whether a defendant is prosecuted in
criminal or juvenile court is a statute that somehow lessens punishment. But the electorate did
not vote for a bill that stated juvenile defendants had to be prosecuted in juvenile court, let alone
that they had to be punished as juveniles. All they voters decided was that a judge should make
the determination of the forum for adjudicating juvenile criminal behavior. Could you flush out
your argument?
D: Yes. Regardless of whether it is a retrospective or prospective application to require a transfer
hearing in a pending case, if the penalty to which defendant is subject has been decreased, the
defendant is entitled to the benefit of decrease in punishment. The general rule that, absent an
expressed intent otherwise, a new statute is not retroactive is subject to an exception. When the
punishment for a crime is reduced, the new law is applied retroactively to every case in which it
may be applied constitutionally, i.e., to all cases in which the conviction is not yet final. (In re
Estrada (1965) 63 Cal.2d 740, 745.) The rationale for this exception is that “[a] legislative
mitigation of the penalty for a particular crime represents a legislative judgment that the lesser
penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law”
and “[n]othing is to be gained by imposing the more severe penalty after such a pronouncement
... other than to satisfy a desire for vengeance.” (Id. at p. 745.) The defendant’s case was far
from final. In fact, it was in its incipient stages when Prop 57 passed and Prop 57 effectively
reduced the punishment by making the defendant eligible for prosecution in juvenile court
when the defendant would not otherwise be eligible.
J: But isn’t the rule of Estrada very limited in its scope. As discussed much more recently by the
California Supreme Court in People v. Brown (2012) 54 Cal.4th 314, “[t]he holding in
36
Estrada was founded on the premise that “‘[a] legislative mitigation of the penalty for a
particular crime represents a legislative judgment that the lesser penalty or the different
treatment is sufficient to meet the legitimate ends of the criminal law’” [Citation omitted] and
the corollary inference that the Legislature intended the lesser penalty to apply to crimes already
committed.” (Brown at p. 325 quoting Estrada, italics added by Brown court.) The
defendant in Brown argued that the Estrada rule should be understood to apply more broadly
to any statute that reduces punishment in any manner. The defendant claimed that since the
statute in question increased the rate at which prisoners could earn credits for good behavior, it
reduced punishment and thus the Estrada exception should apply. (Brown at p. 325.) The
Brown court recognized that “a convicted prisoner who is released a day early is punished a day
less.” (Ibid.) Nevertheless, the Brown court concluded a new statute “increasing the rate at
which prisoners may earn credits for good behavior does not represent a judgment about the
needs of the criminal law with respect to a particular criminal offense, and thus does not support
an analogous inference of retroactive intent.” (Ibid.) Proposition 57 also does not represent a
determination that a particular offense merits lesser punishment.
As the prosecution observed in its brief, Proposition 57 implements a purely procedural change
to determine the proper venue in which to prosecute a juvenile. By eradicating the prior version
of section 707 language, which required a juvenile court to evaluate whether the minor was “a fit
and proper subject to be dealt with under the juvenile court law,” and replacing it with a version
asking the court whether “the minor should be transferred to a court of criminal jurisdiction,”
the Proposition shifted from the “fitness” focus to that of a “transfer.” That shift again
emphasizes the Proposition’s aim to change the procedures in place—not punishments for a
specific crime. Because Proposition 57 does not “clearly benefit” a defendant in that it does not
affect the sentence that would be imposed in either juvenile or adult court, why isn’t Proposition
57 a procedural change that solely applies prospectively?*
D: I’ll address why Brown is not applicable first. One of the primary reasons Brown held a
statute allowing for greater credit was not a statute mitigating the penalty was because the
statute was “designed to control future prison inmate behavior” by giving credit for good
behavior. (Brown at p. 326, emphasis added.) That rationale is inapplicable to the changes to
Editor’s note: The preceding paragraph is lifted almost verbatim from an excellent brief authored by
Contra Costa County Deputy District Attorney Nicole Lopez.
37
juvenile law enacted by Prop 57, which potentially limits the extent of the punishment that may
be imposed for the crime that occurred before its passage.
To the extent that the prosecution is arguing, or this Court is assuming, that Brown stands for
the proposition Estrada does not apply when the new statute does not identify a specific crime,
this is an erroneous take-away. A new statute, such as Prop 57, may implicitly reduce the penalty
for many different crimes at the same time. That is exactly what Prop 57 did. It reduced the
potential punishment by eliminating several avenues for juveniles to be punished as adults as
opposed to receiving treatment in juvenile court. This is because Prop 57 requires a judge to
decide whether to allow a case to proceed in criminal court and eliminates mandatory filing in
adult for certain juveniles. If the juvenile court makes the determination at the transfer hearing
to keep the minor in juvenile court, then the minor will be subject to Welfare and Institutions
Code section 607 which states: “Notwithstanding subdivisions (b) and (d), on and after July 1,
2012, every person committed by the juvenile court to the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities, who is found to be a person described in Section
602 by reason of the violation of any of the offenses listed in subdivision (b) or paragraph (2) of
subdivision (d) of Section 707 shall be discharged upon the expiration of a two-year period of
control, or when the person attains 23 years of age, whichever occurs later, unless an order for
further detention has been made by the committing court pursuant to Article 6 (commencing
with Section 1800) of Chapter 1 of Division 2.5.” For juvenile defendants this represents a
tremendous reduction in potential penalty considering many might be looking at life
sentences if they were kept in criminal court. This fact distinguishes Prop 57 from new laws that
only change the location where a person may be confined. (Cf., In re N.D. (2008) 167
Cal.App.4th 885, 888 [Estrada rule inapplicable to new laws that prevented juveniles in
defendant’s position from being committed to Division of Juvenile Facilities because
“amendments did not mitigate punishment, but only limited the places in which a ward can be
confined”]; In re Edward C. (2014) 223 Cal.App.4th 813, 818 [law newly authorizing
confinement in the Division of Juvenile Facilities was not an increase in potential “punishment”
even though a DJF commitment has been described as more “restrictive” than any other
disposition for juvenile wards].)
Moreover, Prop 57 eliminated the presumption that a minor is not fit to be prosecuted in juvenile
court if 14 years of age or older and commits a serious or violent felony under Welfare and
Institutions Code section 707(b) as well as the presumption of lack of fitness that existed in
section 707(a)(2)(B). Prior to the enactment of Prop 57, the defense had the burden to overcome
38
that presumption. Thus, the decision being made by the judge rather than the prosecutor is
being made under criteria that makes it more likely than before that the minor will be found fit
for prosecution in juvenile court. (See Welf & Inst. Code, §§ 602 and 707 as modified by Prop
57.)
J: Your argument assumes that the defendant was convicted of an offense that rendered him
ineligible after a direct-file in adult court for a disposition under juvenile court law pursuant to
Penal Code sections 1170.17 and 1170.19 before Prop 57. Since if the defendant was eligible for a
post-conviction disposition under juvenile court law, there has not been a reduction in potential
punishment.
D: The argument is certainly stronger when that is the case. But even when a defendant was
eligible for post-conviction disposition under juvenile law before the passage of Proposition 57,
unless the determination under sections 1170.17 and 1170.19 is deemed the equivalent of a post-
Prop 57 determination to transfer (i.e., it is as easy to be kept in juvenile court under those
sections as it is under the new standards) then Prop 57 still provides a better opportunity for
lesser punishment for those juvenile defendants who might have been eligible for a disposition
under juvenile court law before Prop 57.
J: Well, at least as those defendants previously ineligible for disposition under sections 1170.17 and
1170.19 (and maybe as to those defendants previously eligible for such disposition), I agree that,
in practical application, a juvenile potentially is subject to lesser punishment. However, “new
methods for determining a criminal sentence do not necessarily involve punishment in the ex
post facto sense[.]” (John L. v. Superior Court (2004) 33 Cal.4th 158, 181.) Isn’t the
Estrada rule limited to when punishment is reduced, not when the new law creates the mere
potential for reduction in punishment?
D: No. The California Supreme Court has not held that. And if that were true, a new law that made
defendants convicted of various different crimes potentially eligible for probation when
previously they had to be sent to state prison would not be retroactive to defendants who
committed their offense before the change because the defendants would only be rendered
potentially eligible for reduced punishment – they could still be sent to state prison. That is
Editor’s note: Prosecutors should always make the argument that if a defendant was eligible for
disposition in juvenile court under sections 1170.17 and 1170.19 before Prop 57, there has been no
potential mitigation of potential punishment put into place by Prop 57.
39
obviously incorrect. As noted in People v. Delgado (2006) 140 Cal.App.4th 1157, “a change in
law that increases the mandatory minimum sentence attached to a crime increases the measure
of punishment even if a defendant cannot show that he would have received a more lenient
sentence under the former law.” (Id. at p. 1169, emphasis added by IPG.) Similarly, changes in
sentencing rules can violate the ex post facto clause when the rules sufficiently circumscribe
judicial discretion, even if the change does not automatically lead to a more onerous
result than what would have occurred under the prior law.” (Ibid, emphasis added by IPG; see
also People v. Hannigan (unpublished) 2014 WL 3686100, at *6 [applying Estrada rule
where “the effect of the amendment” in question was to “remove sanctions for the
transportation of drugs for personal use, and potentially reduce the punishment for a
defendant for such transportation.”], emphasis added by IPG.)
I would direct this Court to the Arizona case of Saucedo v. Superior Court (1997) 946 P.2d
908. In that case, Arizona passed an initiative that amended the Arizona Constitution to provide
for the automatic prosecution of certain juvenile offenders as adults when previously the juvenile
court had exclusive original jurisdiction over any minor charged with a criminal offense and had
discretion to retain a juvenile for prosecution as a delinquent or transfer the juvenile to a
criminal division of the superior court for prosecution as an adult. Only after a transfer decision
by the juvenile court could a juvenile be prosecuted as an adult. (Id. at p. 909.) The court had to
decide whether the automatic transfer provision should “apply to prosecutions initiated after its
enactment, regardless of the date of the alleged offense, or only to prosecutions for offenses
committed after its enactment.” (Id. at p. 910.) The court recognized that it was uncertain that
the juvenile court, if it exercised transfer discretion, would choose to retain the defendant for
prosecution as a juvenile. It also recognized that if the court chose to transfer the juvenile to
adult court, he would “face the same sentencing exposure that he would face if subject to
automatic transfer for the identical crimes.” (Id. at pp. 910-911.) Nevertheless, the court held
that applying the initiative retroactively to crimes committed before its enactment violated the ex
post facto clause because it would “deprive [the defendant] of eligibility to be retained in the
juvenile court and to receive the lesser punitive consequences applicable there” and then
observed that “[i]t is well-established that a retrospective deprivation of eligibility for a lesser
sentence is forbidden under the ex post facto clause.” (Id. at p. 911, emphasis added by IPG.)
The Saucedo court then cited to two cases in support of its conclusion. The first case was the
United States Supreme Court decision in Lindsey v. Washington (1937) 301 U.S. 397, which
held that a retrospective application of a law to defendants violated the ex post facto clause by
40
“depriv[ing them] of all opportunity to receive a sentence which would give them freedom
from custody and control prior to the expiration of the 15–year term [mandated by law].” (Id. at
pp. 401–402.) The second case was the Ninth Circuit case of United States v. Paskow (9th
Cir.1993) 11 F.3d 873, which held that retrospective application of law to a defendant violated ex
post facto clause by adversely affecting his eligibility for release. (Id. at p. 877.) The court in
Paskow stated, “A court must focus on the change in the defendant’s eligibility to receive a
lesser sentence than a new law may permit, regardless of whether the defendant would actually
have received the lesser sentence.” (Ibid, emphasis in original.)
Here, of course, we have the reverse situation, the new law opens up a defendant’s eligibility for a
lesser sentence. But it stands to reason if depriving a defendant of eligibility for a lesser
sentence is considered increasing punishment for purposes of retroactivity and the related ex
post facto analysis, then it follows that the granting of eligibility for a lesser sentence must be
considered decreasing punishment for those same purposes. (See Tapia v. Superior Court
(1991) 53 Cal.3d 282, 288 [considering cases interpreting ex post facto clause in determining
whether statute is retroactive].)
J: Alright. If we agree the defendant was entitled to transfer hearing, either because providing one
before going forward to preliminary examination of trial was not a retroactive application of
Prop 57, or because the Estrada rule is implicated by the changes enacted by Prop 57, what is
the remedy you are seeking?
D: If a transfer hearing was required, then the criminal court acted in excess of its jurisdiction.
This was error that violated the defendant’s federal and state constitutional right to a proceeding
in juvenile court. Accordingly, the case should be reversed.
Editor’s note: All ex post facto laws are laws that are being retroactively applied but not all laws that are
retroactively applied are ex post facto laws. As noted in In re Edward C. (2014) 223 Cal.App.4th 813, to
fall within the ex post facto provisions, two “critical elements” must be present: (i) the law must be
retroactive and (ii) “the law must have one of the following four effects: it makes criminal acts that were
innocent when done; it makes the crime greater or more aggravated than it was when committed; it
inflicts a greater punishment for the crime than was available when the crime was committed; or it alters
the rules of evidence or the required proof for conviction.” (Id. at p. 825.) However, IPG is not aware of
any cases that have a drawn a distinction between “punishment” for purposes of deciding whether a law is
ex post facto and “punishment” for purposes of deciding whether the Estrada exception to the
presumption of non-retroactivity applies.
41
J: I am assuming that the federal constitutional right you are alleging has been violated is your
defendant’s right to due process.
D: That is correct. As pointed out in the case of Graham v. Florida (2010) 560 U.S. 48, “the
features that distinguish juveniles from adults also put them at a significant disadvantage in
criminal proceedings. Juveniles mistrust adults and have limited understandings of the criminal
justice system and the roles of the institutional actors within it. They are less likely than adults to
work effectively with their lawyers to aid in their defense.” (Graham v. Florida (2010) 560
U.S. 48, 78.) My defendant was deprived of his federal due process right to treatment in
juvenile court.
J: I’m not aware of any case holding that a defendant has a federal due process right to juvenile
court procedures. Graham was a case involving what sentence could be imposed on a juvenile
offender. The quote you cited is inapposite as it was offered in support of the principle that the
federal Constitution prohibits the imposition of a life without a parole sentence on a juvenile
offender who did not commit homicide – not to show a defendant has a due process right to
treatment in juvenile court. (Id. at pp. 78, 82.) To the contrary, “there is no express
constitutional guarantee giving a minor the right to trial in juvenile court, let alone affording him
a presumption of fitness for trial in juvenile court.” (Hicks v. Superior Court (1995) 36
Cal.App.4th 1649, 1658.) And, in In re Harris (1993) 5 Cal.4th 813, the court rejected
defendant’s argument that trial of a juvenile in adult court – even one lacking jurisdiction –
deprived defendant of either due process or the right of equal protection. (Id. at pp. 835-836.)
In fact, most cases addressing federal due process claims involve defendants arguing due process
was violated by treatment in juvenile court instead of criminal court! (See e.g., People v.
Fowler (1999) 72 Cal.App.4th 581, 585 [“ juveniles enjoy no state or federal due process or
equal protection right to a jury trial in delinquency proceedings”]; Alfredo A. v. Superior
Court (1994) 6 Cal.4th 1212, 1216 [“although Gerstein's constitutional requirement of a
prompt judicial determination of probable cause for the extended pretrial detention of any
person arrested without a warrant applies to juveniles as well as adults,” the strict 48–hour rule
announced in McLaughlin—a ruling handed down in a case involving the pretrial detention of
adults—does not”]; In re Jose M. (1994) 21 Cal.App.4th 1470, 1480 [finding Aranda/Bruton
rule inapplicable in a juvenile jurisdictional hearing tried to the court”].)
D: Even if there was no federal constitutional right to a disposition, the superior court still acted in
excess of its jurisdiction in trying him and sentencing him in criminal court, because Prop 57
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precludes such prosecution without a determination by a judge that the defendant is properly
handled in criminal court. This is grounds for reversal.
J: Well, even assuming that it was error to continue the proceedings in adult court, how has the
defendant been harmed by holding the preliminary examination and trial in adult court? Acts in
excess of jurisdiction may potentially provide grounds for reversal but unless an act in excess of
jurisdiction is considered structural error, it is subject to harmless error review. (See People v.
Williams (2006) 40 Cal.4th 287, 301.) Structural error can occur when there is a
constitutional deprivation or “a similar structural defect affecting the framework within which
the trial proceeds, rather than simply an error in the trial process itself.” (Ibid.) But, here, the
defendant “was simply the beneficiary of an additional procedural option-trial by jury-that was
not available in juvenile court[.]” (In re Harris (1993) 5 Cal.4th 813, 835.) Thus, the
defendant received a trial with greater constitutional protections than afforded in juvenile court
so no structural error occurred. And unless there is a showing that defendant’s trial “was unfair,
or that the determination of the facts of the crime was inaccurate or unreliable” (see In re
Harris (1993) 5 Cal.4th 813, 850), he is not entitled to a new trial.
“[I]t is important to keep in mind that the primary goal behind maintaining separate courts and
procedures for adults and minors is to ensure that juvenile offenders who have not yet become
hardened criminals receive treatment and rehabilitation.” (In re Kasaundra D. (2004)
121 Cal.App.4th 533, 539; accord In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.) As
pointed out by the Legislative Analyst’s Analysis of Prop 57: “Juvenile court proceedings are
different than adult court proceedings. For example, juvenile court judges do not sentence a
youth to a set term in prison or jail. Instead the judge determines the appropriate placement and
rehabilitative treatment (such as drug treatment) for the youth, based on factors such as the
youth’s offense and criminal history.” (Ballot Pamp., Primary Elec. (Nov. 8, 2016) Analysis by
the Legislative Analyst at p. 55.) I guess the point I am trying to make is that so long as a
transfer hearing occurs before sentencing, the defendant has the best of both worlds. He gets all
protections of adult court but all the potential benefits of proceeding in juvenile court.
Accordingly, while you have a pretty good argument that defendant is entitled to transfer hearing
after conviction and, upon a finding the defendant is suited for juvenile court, a new
dispositional hearing, the argument that defendant is entitled to an entirely new trial is not
very persuasive. (In re Harris (1993) 5 Cal.4th 813, 850.)
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D: I am not so sure that erroneously holding a trial in adult court rather than juvenile court is
something that does not affect the framework within which the trial proceeds- so it might be
structural error. But, if this Court is correct, then the prosecution and trial court may, in
contravention of the voter’s intent, and without having jurisdiction or the consent of the
defendant, proceed to try a defendant in adult court with no consequence.
J: The consequence is having to conduct a transfer hearing and potentially having to engage in
another sentencing-type hearing. Our ruling might be different if you could articulate a specific
harm to the defendant, but you have not.
D: Granted, it is difficult to argue in the abstract how the defendant was prejudiced. But the trial
might have resulted in a different outcome if the case was heard by a juvenile court judge who
would have been more familiar with the defendant’s background.
J: I suppose a different outcome would be a possibility. But the fact that a different trier of fact
might have come to a different outcome based on the same evidence has never been a basis for
finding an error in the trial court was prejudicial. Moreover, even if there was some showing of
actual prejudice deriving from having to proceed to trial in adult court rather than juvenile court,
wouldn’t the defendant still have to show that, if a transfer hearing was held, the case would not
have remained in adult court?
Accordingly, our order is going to be to simply remand the case for a transfer hearing. If the trial
court determines that defendant was a proper candidate for trial in criminal court, then no
further action need be taken. If the trial court determines the defendant should have been
prosecuted in juvenile court, then the juvenile court (or the trial court sitting as a juvenile court)
may resentence defendant as a juvenile. In this way, the intent of the electorate to have judges
make the determination of whether a defendant should be transferred to adult court will be
carried out and the intent to emphasize rehabilitation is also carried out.
Editor’s note: A brief (authored by Contra Costa County Deputy District Attorney Nicole Lopez) arguing
that Prop 57 has no retroactive application whatsoever because Prop 57 solely institutes a procedural
change is available upon request.
Editor’s note: If a case was mid-trial at the time of Prop 57’s passage and proceeded to verdict, IPG has a
brief authored by Santa Clara County Assistant District Attorney James Gibbons-Shapiro arguing that
going forward with the trial and holding a post-conviction transfer hearing is a proper approach. The brief
will be made available upon request.
44
If Prop 57 is viewed as mitigating potential punishment such that it is deemed retroactive under
the rule of Estrada (see this IPG memo, section 17 at pp. 35-41), it will apply to all cases that
are pending on appeal. Moreover, “for the purpose of determining retroactive application of an
amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ
of certiorari in the United States Supreme Court has passed.” (People v. Vieira (2005) 35
Cal.4th 264, 306; see also Rules of the U.S. Supreme Court, Rule 13.1. [“A petition for writ of
certiorari is considered timely if filed with the court within 90 days after entry of judgment of the
state court of last resort.”].) However, this should not result in reversal of a conviction unless
the defendant can somehow show prejudice deriving from trial in criminal court instead of
juvenile court. Moreover, even if there is a specter of prejudice, the case should be remanded to
determine whether a judge would have found defendant unfit for juvenile court. If not, it would
not make a difference that the defendant was prejudiced by trial in adult court.
In addition to claiming that Prop 57 is retroactive to all pending cases where no transfer hearing
has been held, defendants may claim that they are entitled to a new transfer hearing even where
a court has already made a determination that the defendant is not fit for prosecution in juvenile
court. The claim will be based on the fact that Prop 57 eliminated the presumption of unfitness
for juvenile court in former Welfare and Institutions Code sections 707(a)(2)(B) and 707(c).
(See this IPG memo, section 16 at p. 27.)
It is less compelling claim than when a case has been direct filed but some of the same
arguments for and against retroactive application of Prop 57 to pending criminal cases where a
direct file has occurred (see this IPG memo, section 17 at pp. 27-43) may also be made when a
case has not been direct filed but the case was not yet final at the time Prop 57 was enacted.
If there was much oomph to this claim though, you would have expected to have seen it made
when SB 382 (which changed some of the factors that courts considered in determining whether
a juvenile was fit and proper subject to be dealt with under the juvenile court law) went into
effect last year. So far, no appellate court decision has issued in which this claim was raised.
A. If Prop 57 is retroactive, will it impact cases where convictions
occurred before its effective date?
B. Is a juvenile defendant who has a pending criminal case, but who
was determined to be unfit for prosecution in juvenile court by a
judge before Prop 57 passed, entitled to a new transfer hearing?
45
Kathy Storton has made some wise recommendations as to the approach to take if courts are
inclined to accept the argument that a new determination using the Prop 57 standards should be
made in all criminal cases not yet final where a fitness hearing under the old standards was
made: “Where a juvenile case is in adult court based on a finding of unfitness rather than based
on direct filing, it may be that the written and/or oral findings of the court at the pre-Proposition
57 fitness hearing comply with the requirements of a Prop. 57 transfer hearing. For example, it
may be that a presumption did not apply in the case, or it may be evident that the court did not
use any presumption in making its determination of unfitness. If a defendant who was found
unfit wants his or her case sent to juvenile court or wants a second fitness hearing, the
prosecutor should consider obtaining the transcript and written documents related to the fitness
hearing.”
If a criminal court is inclined to temporarily derail a pending case that was direct-filed before
Prop 57 was enacted in order to hold a transfer hearing and/or the prosecution is willing to agree
to holding a transfer hearing, there are a few things to keep in mind.
First, the prosecution should make it clear on the record that it is not agreeing that such transfer
hearing is legally required and that any acquiescence or agreement to the transfer hearing is
being done without waiving a right to later claim it was unnecessary.
Second, as part of any agreement to hold a transfer hearing, the prosecution should seek a
personal and on-the-record waiver from the defendant of any irregularities in the sending of the
case to juvenile court. For example, if the defendant has not waived time and the transfer
hearing would delay the proceedings beyond the statutory limits in criminal court, the defendant
should be asked to waive time or at least agree that the statutory time clock would start anew if
the case was later returned to criminal court.
Third, consider requesting that transfer determination be made by a judge in criminal court
rather than having the case sent down for the determination to be made by a juvenile court
judge. (See this IPG memo, section 18-A at p. 48.)
18. If a case had already been direct filed in criminal court before Prop 57 was enacted, and the court indicates a desire to halt the proceedings (and/or prosecution agrees to halt the proceedings) in order for a transfer hearing to occur, is there anything to keep in mind?
46
Fourth, in cases where a juvenile who is pending trial wants to stay in adult court despite
how the court may rule on this issue, having the defendant personally waive a transfer hearing
will head off any later claims that the defendant’s attorney provided ineffective assistance by not
making a motion to send the case to juvenile court.
Fifth, any plea bargain reached with juvenile defendants whose cases were direct-filed before the
passage of Prop 57, should include a waiver of any and all irregularities and an on-record
agreement that the defendant is aware of the potential retroactivity of Prop 57 but wishes to
proceed with a plea in adult court that will result in a criminal conviction and sentence.
Sixth, if the juvenile court is ordering a transfer hearing to be held in juvenile court, it should
consider treating the charging document in criminal court as a juvenile court petition for
purposes of conducting a transfer hearing, rather than having to dismiss the case in adult court
and refiling in juvenile court. Alternatively, the court should make it clear on the record that to
the extent any dismissal of the criminal proceedings is required in order to allow for the transfer
hearing, defendant seeking the transfer hearing is waiving any claim the dismissal counts as a
dismissal for purposes of Penal Code section 1387 or, if the trial has already started, double
jeopardy purposes.
The Santa Clara County District Attorney’s has proposed a procedure for allowing a transfer
hearing to occur in direct-filed cases pending trial (without conceding that a transfer hearing is
lawfully required:
1) For cases that have not yet been resolved by trial or by negotiated disposition: a) Allow the Deputy District Attorney to withdraw the 707(d) allegation in the Complaint or
Information; b) Order that the case be “certified” to Juvenile Court pursuant to Welfare and Institutions
Code section 604(a);
c) Make the findings set forth in local form “Juvenile Certification and Order”;
The certification order must include the following:
● The crime with which the person is charged;
● The person was under the age of 18 at the time it was committed;
● The person’s date of birth if known;
● That criminal proceedings were suspended and the date; and
● The date and time the matter was certified to juvenile court.
(California Rule of Court 4.116(b)/(c))
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d) Direct that the Complaint or Information be transferred to Juvenile Court where the
Juvenile Court Clerk will notify probation, who will then follow their procedures to
commence juvenile proceedings;
Copies of the certification, the complaint, and any police reports must immediately be
transmitted to the clerk of the Juvenile Court. (See Rule of Court 4.116(c).) If the person is
in custody, he or she must immediately be transported to juvenile hall, even if they are over
age 18 and even if they will be housed in jail. No bail is allowed. (See Rule of Court
4.116(d)).
2) For cases where the defendant has been found guilty by trial or plea and has not yet
been sentenced:
PC 1170.17 and 1170.19 apply to post-conviction fitness hearings. Per PC 1170.17, the Court can
either conduct a fitness hearing in adult court or suspend the proceedings and remand the matter
to Juvenile Court for a fitness hearing. (The Deputy District Attorney will argue that the fitness
hearing should be heard by the Judicial Officer who heard the trial or took the plea. We
understand that the Court will decide which Judicial Officer will hear the matter.)
Procedure per PC 1170.17(c) for post-conviction fitness hearings:
● The adult court must order Probation to prepare a fitness report
● The adult court may then conduct a fitness hearing or remand the matter to the
Juvenile Court for a fitness hearing.
● If the defendant is found fit under Rule 5.770, he or she must be given a juvenile
dispositional hearing.
● If the defendant is found unfit, he or she must be sentenced as an adult.
In stipulating to this process the Deputy District Attorney will be requesting from the defense a time
waiver in the event that the case is not already in a time-waived posture. If the defendant’s case is in a
time-not-waived posture and the defendant elects not to waive time, then the Deputy District Attorney will
urge the Court to proceed with the adjudication of the matter in adult court and address the issue of fitness
prior to sentencing, if any. The Deputy District Attorney will also request a stipulation from the defense
that in the event that the defendant is found unfit for Juvenile Court then the case will return to adult
court in the same posture whence it left. We are confident that this would be the legal and logical result
but out of an abundance of caution, we would like the parties to agree.
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THIS IPG MEMO OWES MUCH, IF NOT MOST, OF ITS
CONTENT TO DDA KATHY STORTON. HOWEVER, UNLESS
OTHERWISE IDENTIFIED, ANY OPINIONS EXPRESSED
ARE THOSE OF IPG. IN ADDITION, ANY ERRORS MADE
ARE SOLELY ATTRIBUTABLE TO IPG.
There is statutory authority which would allow a criminal court judge to handle the transfer
hearing. Welfare & Institutions Code section 246 empowers the presiding judge of the Superior
Court to, “from time to time, designate such additional judges as may be necessary for the
prompt disposition of the judicial business before the juvenile court.” (Welf & Inst. Code, §
246.)
To the extent a criminal court judge is familiar with the facts of the case, it makes sense for that
judge (rather than a juvenile court judge) to conduct the transfer hearing. This would occur
where (i) a direct-filed case was mid-trial at the time Prop 57 became effective (November 9,
2016) or (ii) there had already been a conviction in a direct-filed case.
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A. If a case had already been direct filed in criminal court before Prop
57, can the transfer determination be made by a judge in criminal
court rather than having the case sent down for the determination to
be made by a juvenile court judge?