Briggs v. BrownBriggs v. Brown
Petitioner asserts four grounds for relief. He claims Proposition 66 (1) embraces more than one subject, as prohibited by the California Constitution; (2) interferes with the jurisdiction of California courts to hear original petitions for habeas corpus relief; (3) violates equal protection principles by treating capital prisoners differently from other prisoners with respect to successive habeas corpus petitions; and (4) runs afoul of the separation of powers doctrine by materially impairing the courts’ ability to resolve capital appeals and habeas corpus petitions, and to manage their dockets in general.
Petitioner‘s constitutional challenges do not warrant relief. However, we hold that in order to avoid serious separation of powers problems, provisions of Proposition 66 that appear to impose strict deadlines on the resolution of judicial proceedings must be deemed directive rather than mandatory.
I. THE TERMS OF PROPOSITION 66
Proposition 66 includes a series of findings and declarations to the effect that California‘s death penalty system is inefficient, wasteful, and subject to protracted delay, denying murder victims and their families justice and due
A. Expedited Review
Proposition 66 amends Penal Code section 190.6 to give the Judicial Council 18 months to adopt rules and standards for expediting appeals and state habeas corpus review in capital cases.3 (
Section 190.6, subdivision (b), an existing provision, sets a seven-month limit on the filing of the opening brief in a capital appeal, except upon a showing
Section 1239.1 declares it the duty of this court to expedite review in capital cases. We must appoint counsel for indigent appellants as soon as possible, and grant extensions of time for briefing only “for compelling or extraordinary reasons.” (
The initiative measure extensively revamps the procedures governing habeas corpus petitions in capital cases. Under current practice, habeas corpus proceedings are initiated in this court, which appoints counsel and provides for their compensation.4 Under the initiative measure, however, “[a] petition filed in any court other than the court which imposed the sentence should be promptly transferred to that court unless good cause is shown for the petition to be heard by another court. A petition filed in or transferred to the court which imposed the
The initial habeas corpus petition must be filed within a year of the appointment of counsel. (
B. Conditions of Confinement and Administration of the Death Penalty
Proposition 66 requires that prisoners sentenced to death perform work in prison and pay 70 percent of their wages and other trust account funds toward restitution. (
The measure amends section 3600 to allow the Department of Corrections and Rehabilitation (the Department) to house male prisoners under a sentence of death in any California prison that the Department finds will “provide a level of security sufficient for that inmate. The inmate shall be returned to the prison designated for execution of the death penalty after an execution date has been
Section 3604.1 provides an exemption from the Administrative Procedure Act (
Section 3604.3, subdivision (a) authorizes physicians to attend executions for the purposes of pronouncing death and assisting the Department in developing protocols. Physicians and other licensed health care professionals are protected against disciplinary proceedings for any actions authorized by statute. (
C. The Habeas Corpus Resource Center
The Habeas Corpus Resource Center provides counsel, investigative staff, and experts for prisoners in capital habeas corpus proceedings. Currently the center is governed by a five-member board of directors chosen by the Appellate
The initiative measure abolishes the center‘s board of directors, and authorizes this court to appoint its executive director. (
II. DISCUSSION
We consider only the objections raised by the amended and renewed petition before us. “We have no occasion at this time to consider other possible attacks,” and “except as necessary to resolve the basic questions before us, we do
We are guided by policies this court has consistently followed in cases challenging the validity of initiative measures. ” ‘[T]he Constitution‘s initiative and referendum provisions should be liberally construed to maintain maximum power in the people.’ ” (Independent Energy Producers Assn. v. McPherson (2006) 38 Cal.4th 1020, 1032, quoting Legislature v. Deukmejian (1983) 34 Cal.3d 658, 675; see also Carlson v. Cory (1983) 139 Cal.App.3d 724, 728.) Under article IV, section 1 of the California Constitution, “[t]he legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.” “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.” (
” ‘We do not consider or weigh the economic or social wisdom or general propriety of the initiative. Rather, our sole function is to evaluate [it] legally in the light of established constitutional standards.’ ” (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 814, quoting Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at p. 219, and citing Ferguson v. Skrupa (1963) 372 U.S. 726, 730; see Brown v. Superior Court (2016) 63 Cal.4th 335, 352, fn. 11.) ” ‘[A]ll presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reasоn for a judicial declaration
With these principles in mind, we turn to petitioner‘s challenges.
A. The Single-subject Claim
“An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” (
“[T]he single-subject provision does not require that each of the provisions of a measure effectively interlock in a functional relationship. [Citation.] It is enough that the various provisions are reasonably related to a common theme or purpose.” (Legislature v. Eu, supra, 54 Cal.3d at p. 513.) Accordingly, we have upheld initiative measures ” ‘which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common
A review of other comprehensive criminal justice reforms enacted by initiative, and upheld against single-subject challenges, demonstrates that Proposition 66 passes the “reasonably germane” test. The “Victims’ Bill of Rights” at issue in Brosnahan, supra, 32 Cal.3d 236, included provisions providing for (1) restitution to crime victims; (2) an inalienable right to safe public schools; (3) a sweeping restriction on judicially created rules of evidentiary exclusion; (4) new limitations on grants of bail; (5) the use of prior felony convictions for impeachment purposes; (6) abolishment of the diminished capacity defense and reinstatement of the M‘Naghten test for legal insanity;8 (7) sentence enhancements for habitual criminals; (8) victim participation in sentencing proceedings; (9) plea bargain restrictions; and (10) limitations on commitments to the California Youth Authority (now the Division of Juvenile Justice). (Brosnahan, at pp. 242-245.)
In Raven v. Deukmejian, supra, 52 Cal.3d 336 (Raven), the court examined the “Crime Victims Justice Reform Act,” which provided for (1) postindictment preliminary hearings; (2) restricting certain state constitutional criminal rights to afford no greater protection than is provided by the federal Constitution; (3) the people‘s right to due process and a speedy public trial; (4) greater flexibility with regard to joinder and less with regard to severance; (5) admissibility of hearsay at preliminary hearings; (6) reciprocal discovery in criminal cases and related measures relating to preliminary examinations; (7) reformation of the voir dire process; (8) additional felonies in the felony-murder statute; (9) special circumstance reforms; (10) new provisions governing the crime of torture; (11) appointment of counsel willing and able to proceed in a timely manner in felony cases; and (12) a requirement that felony cases be set for trial within 60 days of arraignment absent good causе for an extension, with writ review of such determinations. (Id. at pp. 342-345.) The Raven court found Brosnahan controlling. It held that “the various elements” of the measure before it “unite[d] to form a comprehensive criminal justice reform package,” with “the single
Manduley v. Superior Court (2002) 27 Cal.4th 537 (Manduley) involved the “Gang Violence and Juvenile Crime Prevention Act of 1998.” That initiative measure included 13 provisions relating to criminal gang activity, four provisions amending the Three Strikes law, and 17 provisions amending
Although the Three Strikes reforms in Manduley “at first blush, might not bear an obvious relationship to juvenile or gang offenders,” the court decided “upon closer scrutiny we cannot properly conclude that they are not reasonably related to the goal of the initiative.” (Manduley, supra, 27 Cal.4th at p. 577.) “Even if some of the crimes added to the list of violent and serious felonies are more likely to be committed by an adult who is not a gang member, the offenses nonetheless constitute crimes that commonly are committed by members of street gangs and/or juvenile offenders and thus bear a reasonable and commonsense relationship to the purpose of the initiative.” (Id. at p. 578.) “Thus, despite the collateral effects of these provisions upon adults who are not gang members, and
Proposition 66 is more focused on a single subject than the initiative measures upheld in Brosnahan, Raven, and Manduley. Petitioner posits that Proposition 66 is intended to expedite review in capital cases, and contends four provisions are unrelated to that purpose: (1) the requirement that prisoners work and pay restitution (
Restitution is a significant aspect of a criminal sentence and a benefit to victims. (See
B. The Jurisdictional Habeas Corpus Claims
Petitioner‘s jurisdictional challenges to Proposition 66‘s habeas corpus reforms are based on
Sections 10 and 11 of article VI are divergent in effect. This court has exclusive appellate jurisdiction in capital cases under section 11. But original habeas corpus jurisdiction, even in capital cases, is shared by all the state courts under
Petitioner contends Proposition 66 violates article VI, section 10 by (1) requiring initial habeas corpus petitions to be transferred to the sentencing court, absent good cause for another court to hear them (§ 1509); (2) conferring “exclusive jurisdiction” on the sentencing court over challenges to the method of execution (
1. Transfer to the Sentencing Court
In challenging section 1509‘s provisions for the transfer of habeas corpus petitions to the sentencing court, petitioner urges a strict reading of
With respect to section 10 of article VI, the California Constitution Revision Commission explained that former provisions “concerning the issuance and returnability of writs of habeas corpus” had been deleted ”because the matter can be dealt with by the Legislature under the grant of original jurisdiction.” (Commission Report, supra, at p. 90, italics added; quoted in Griggs v. Superior Court (1976) 16 Cal.3d 341, 349 (conc. & dis. opn. of McComb, J.).) The Judicial Council, in its report on the revisions, similarly explained that “[t]he procedure for the exercise of this original [writ] jurisdiction is left to promulgation by statutes and rules,” while also noting that “the authority of the named courts to issue writs of habeas corpus is specifically preserved . . . .” (Council Report, supra, pt. 1, ch.
We have recognized that “[b]y removing ‘unnecessary’ provisions from article VI, and allowing those matters to be regulated by statute, the commission‘s revisions of article VI effectively broadened the scope of the Legislature‘s control over judicial procedures.” (Powers v. City of Richmond (1995) 10 Cal.4th 85, 94 (plur. opn. of Kennard, J.); see Leone v. Medical Board (2000) 22 Cal.4th 660, 667.) Thus, the provisions of article VI, section 10 do not tightly constrain the scope of procedural legislation, although a statute may not substantially impair the courts’ original writ jurisdiction. (Powers, at p. 110; Leone, at p. 668.) A chapter of the Penal Code is devoted to habeas corpus procedures, which coexist with judicially developed rules. (
Contrary to petitioner‘s argument, section 1509 actually preserves the original writ jurisdiction of all three levels of the state courts, by providing that “[a] petition filed in any court other than the court which imposed the sentence should be promptly transferred to that court unless good cause is shown for the petition to be heard by another court.” (
Petitioner further contends that
Section 3604.1, subdivision (c) confers on the sentencing court “exclusive jurisdiction to hear any claim by the condemned inmate that the method of execution is unconstitutional or otherwise invalid.” Petitioner contends this provision unconstitutionally strips the courts of appeal and this court of the original habeas corpus jurisdiction granted by article VI, section 10. Proponents defend the statute by arguing that challenges to execution methods are not ordinarily brought in habeas corpus proceedings, but in civil suits that do not implicate the jurisdictional provisions of
Unlike section 1509, which preserves the original jurisdiction of the appellate courts, section 3604.1, subdivision (c) makes no provision for exceptions in extraordinary circumstances. Nevertheless, it does not explicitly interfere with the reviewing courts’ jurisdiction. The jurisdiction conferred by our Constitution “may not lightly be deemed to have been destroyed.” (Garrison v. Rourke (1948) 32 Cal.2d 430, 435.) An intent to divest a court of jurisdiction “is not read into the statute unless that result is expressly provided or otherwise clearly intended.” (Ibid.) We avoid conflicts between statutes and constitutional grants of jurisdiction whenever possible, by “construing legislative enactments strictly against the impairment of constitutional jurisdiction.” (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 253.)
As discussed next, section 1509.1, subdivision (a) grants the courts of appeal jurisdiction to review superior court habeas corpus rulings. We note that neither petitioner nor proponents argue that section 3604.1, subdivision (c) bars the courts of appeal from reviewing rulings on execution methods. The existence of such appellate jurisdiction lends support to the conclusion that the exclusive jurisdiction provisions of section 3604.1, subdivision (c) are intended to apply only at the superior court level.13
3. Appellate Review
Section 1509.1, subdivision (a) states: “Either party may appeal the decision of a superior court on an initial petition under Section 1509 to the court of appeal. . . . A successive petition shall not be used as a means of reviewing a denial of habeas relief.”14 These provisions are a significant departure from the
Petitioner contends the provision of section 1509.1, subdivision (a) that requires appeals to be taken to the courts of appeal interferes with this court‘s exclusive appellate jurisdiction in capital cases under
There is some support for the claim that our exclusive jurisdiction under
We examined the extent of our exclusive jurisdiction in Thompson v. Department of Corrections (2001) 25 Cal.4th 117 (Thompson). Thompson filed suit to compel prison authorities to allow his spiritual adviser to remain with him until shortly before his execution. The superior court issued an injunction. The court of appeal dismissed the authorities’ appeal on the ground that the matter was within this court‘s exclusive jurisdiction under
In re Scott (2003) 29 Cal.4th 783 (Scott), was a capital habeas corpus case in which we issued an order to show cause and appointed a referee to take evidenсe on claims of ineffective assistance of counsel. (Id. at pp. 791-792.) At the evidentiary hearing, Scott invoked his constitutional and statutory rights not to be called as a witness in a criminal case. (
In re Barnett (2003) 31 Cal.4th 466 (Barnett) considered whether prisoners sentenced to death, and represented by counsel, are entitled to submit pro se claims related to their habeas corpus petitions. We noted that no such right pertains on appeal when the defendant has an attorney, and emphasized that “an inmate‘s rights regarding legal representation in a state habeas corpus proceeding are even more limited than on an appeal.” (Id. at p. 474.) Habeas corpus relief is ” ‘further removed from the criminal trial than is [appellate] review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature.’ ” (Ibid., fn. omitted, quoting Pennsylvania v. Finley (1987) 481 U.S. 551, 556–557, and citing Scott, supra, 29 Cal.4th at p. 815.)
In People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, we construed section 1054.9‘s provisions governing discovery in habeas corpus proceedings brought by prisoners sentenced to death or life without parole. The People argued that section 1054.9 was an unconstitutional attempt by the Legislature to amend Proposition 115, which regulates discovery in criminal cases.16 We framed the
The holding in Pearson turned on the independent nature of habeas corpus proceedings. “Although section 1054.9‘s discovery may occur before the actual habeas corpus petition is filed, it is part of the prosecution of the habeas corpus matter, not part of the underlying criminal case. [¶] Proposition 115‘s discovery provisions all deal with the underlying trial. For this reason, we have held that they do not apply to habeas corpus matters (although they may provide guidance in crafting discovery orders on habeas corpus). ([Scott, supra,] 29 Cal.4th 783, 813–814.)” (Pearson, supra, 48 Cal.4th at p. 572.)17
For these reasons, section 1509.1, subdivision (a) does not violate the state Constitution by granting appellate jurisdiction to the courts of appeal in capital habeas corpus proceedings. As petitioner points out, however, it does conflict
The provision of section 1509.1, subdivision (a) allowing “[e]ither party [to] appeal the decision of a superior court on an initial petition . . . to the court of appeal” cannot operate concurrently with the provision of section 1506 requiring a People‘s appeal to be taken to this court in a capital habeas corpus proceeding. Proposition 66 was manifestly intended to occupy the field of habeas corpus review of superior court rulings in capital cases. (See Professional Engineers, supra, 40 Cal.4th at p. 1038.) The terms of section 1509.1, subdivision (a) “demonstrate a clear intent by the electorate to supersede prior law,” displacing the provisions of section 1506 governing People‘s appeals from superior court rulings. (Professional Engineers, at p. 1039.)19
It is true that the former method of seeking review by filing a new petition was based on the appellate courts’ original habeas corpus jurisdiction. (Reed, supra, 33 Cal.3d at p. 918, fn. 2; In re Michael E. (1975) 15 Cal.3d 183, 193, fn. 15.) However, it does not follow that the discontinuation of that practice violates
Thus, section 1509.1, subdivision (a) does not violate
C. The Equal Protection Claim
Petitioner argues that Proposition 66‘s restrictions on successive habeas corpus petitions by prisoners sentenced to death violate the equal protection clauses of the state and federal Constitutions. Section 1509, subdivision (d) requires that “a successive petition whenever filed” be dismissed unless the court finds the prisoner actually innocent or ineligible for the death penalty. This rule is a substantial revision of the policy established in Clark, supra, 5 Cal.4th 750. Under Clark, successive petitions are permitted even “absent justification for the failure to present all known claims in a single, timely petition,” if the prisoner can establish that a “fundamental miscarriage of justice occurred.” (Id. at p. 797.)20 Nevertheless, petitioner‘s equal protection claim stumbles at the threshold.
Petitioner argues that prisoners sentenced to death are situated similarly to noncapital prisoners because both groups have the same interest in freedom from an illegal or unjust conviction or sentence. Such a characterization of the interest at stake is overly broad. The question is whether capital and noncapital prisoners are similarly situated for purposes of section 1509‘s restrictions on the filing of successive petitions. Proponents point out that in California only capital prisoners
With respect to successive petitions, Reno set out the significant differences between capital and noncapital prisoners. We observed that the justification for a comprehensive first habeas corpus petition in a capital case “all but disappears for second and subsequent petitions in this court. Absent the unusual circumstance of some critical evidence that is truly ‘newly discovered’ under our law, or a change in the law, such successive petitions rarely raise an issue even remotely plausible, let alone state a prima facie case for actual relief. In the 18 years since [] Clark, supra, 5 Cal.4th 750, experience has taught that in capital cases, petitioners frequently file second, third, and even fourth habeas corpus petitions raising nothing but procedurally barred claims.” (Reno, supra, 55 Cal.4th at pp. 457-458, fns. omitted.) Such abusive successive writ practices are not nearly so common in noncapital cases.
Reno noted that the prevalence of meritless successive writ petitions “has threatened to undermine the efficacy of the system for adjudicating petitions for collateral relief in cases involving the death penalty.” (Reno, supra, 55 Cal.4th at p. 442.) Accordingly, we “establish[ed] some new ground rules for [successive]
“These practices, along with other factors, have created a significant threat to our capacity to timely and fairly adjudicate such matters. We are оf course aware that ’death row inmates have an incentive to delay assertion of habeas corpus claims that is not shared by other prisoners.’ ([] Clark, supra, 5 Cal.4th at p. 806 (conc. & dis. opn. of Kennard, J.); see Rhines v. Weber (2005) 544 U.S. 269, 277–278 [suggesting capital defendants ‘might deliberately engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of death‘].) Yet those capital defendants whose appeals are fully briefed, and those habeas corpus petitioners whose briefing also is complete who may desire resolution, must sit and wait while we attend to these time-consuming but generally meritless [successive] petitions. Some death row prisoners with meritorious legal claims may languish in prison for years waiting for this court‘s review while we evaluate petitions raising dozens or even hundreds of frivolous and untimely claims. We are not the only state court of last resort concerned that
The new rules announced in Reno established page limits for successive petitions in capital cases and permitted certain claims to be presented in abbreviated form. (Reno, supra, 55 Cal.4th at pp. 515-516.) We also required counsel to clearly identify those claims that were earlier raised and rejected and in what proceedings, those claims that could have been raised earlier, those that were truly new, and those presented pursuant to federal court order requiring the exhaustion of state claims. (Id. at p. 443.) We advised counsel that in the future, abusive writ practices could result in financial sanctions. (Id. at p. 514.) We adopted these extraordinary measures to address issues peculiar to the successive petition process in capital cases. Section 1509 tackles the same problems. Our exhaustive discussion in Reno explains how successive petitions in capital cases present special difficulties, and demonstrates that capital and noncapital petitioners are not similarly situated with respect to section 1509.
Petitioner relies on Allen v. Butterworth (Fla. 2000) 756 So.2d 52, in which the Florida Supreme Court commented that a statute imposing deadlines on capital postconviction procedures violated equal protection. (Id. at p. 54.) The comment was dictum. The Allen court conducted no equal protection analysis, and based its holding instead on separation of powers grounds. (Ibid.; see Abdool v. Bondi (Fla. 2014) 141 So.3d 529, 546.) In Abdool, the same court rejected an equal protection challenge to a different statute restricting the time for capital defendants to file postconviction motions. Holding that the statute did not unjustifiably treat capital
Our holding on the equal protection claim raised by petitioner poses no bar to other constitutional challenges to section 1509, one of which we discuss next. It merely reflects the reality that successive habeas corpus petitions in capital cases present problems distinct from those in noncapital cases.
D. The Separation of Powers Claims
Petitioner contends Proposition 66 violates the separation of powers doctrine by defeating or materially impairing the exercise of judicial functions in various ways. After a review of separation of powers principles, we discuss petitioner‘s attack on section 1509‘s restrictions on untimely and successive
1. Governing Principles
“The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” (
“Of necessity the judicial department as well as the executive must in most matters yield to the power of statutory enactments. [Citations.] The power of the legislature to regulate criminal and civil proceedings and appeals is undisputed.” (Brydonjack, supra, 208 Cal. at pp. 442-443; accord, Mendocino, supra, 13 Cal.4th at p. 54.)23 The scope of this power is broad, but not unlimited. “[T]he legislature may put reasonable restrictions upon constitutional functions of the courts provided they do not defeat or materially impair the exercise of those functions. . . . ‘[T]he mere procedure by which jurisdiction is to be exercised may be prescribed by the Legislature, unless . . . such regulations should be found to substantially impair the constitutional powers of the courts, or practically defeat their exercise. [Citations.]” (Brydonjack, at p. 444; accord, Mendocino, at p. 54.)
We have emphasized that “[t]he separation of powers limitation on the Legislature‘s power to regulate procedure is narrow. Chaos could ensue if courts were generally able to pick and choose which provisions of the Code of Civil Procedure to follow and which to disregard as infringing on their inherent powers. The same concern applies to the Evidence Code, which, after all, generally limits a court‘s ability to consider evidence. In most matters, the judicial branch must necessarily yield to the legislative power to enact statutes. [Citations.] Only if a legislative regulation truly defeats or materially impairs the courts’ core functions . . . may a court declare it invalid.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1104 (Le Francois); see Legislature v. Deukmejian, supra, 34 Cal.3d at p. 674 [initiative measures are subject to the same constitutional limitations as statutes passed by the Legislature].) Our observations in Le Francois apply equally to the Penal Code‘s procedural provisions.
Section 1509, subdivision (c) states a general rule that an initial habeas corpus petition must be filed within one year of the superior court‘s order under
Petitioner contends the restrictions imposed by section 1509, subdivision (d) amount to a material impairment of the courts’ inherent authority to consider successive and untimely petitions. He points out that the statute‘s limitations on habeas corpus claims go well beyond those this court has developed in cases such as In re Robbins, supra, 18 Cal.4th 770, and Clark, supra, 5 Cal.4th 750. What he does not point to is any authority holding that our power to prescribe limitations on habeas corpus petitions is exclusive, so that legislative action on that subject would violate the separation of powers. To the contrary, in Clark we recognized that legislation may be enacted “to control abuses of the writ and thereby spare courts with jurisdiction over habeas corpus petitions the burden of repetitious petitions.” (Clark, at p. 771.) It is not unusual for initiative measures to “adopt various changes in procedural or substantive law previously mandated by this court.” (Raven, supra, 52 Cal.3d at p. 348.) Petitioner cites no case in which such reforms have been struck down as material impairments of the judicial function because they alter judicially established rules.
Thus, section 1509, subdivision (d) is not objectionable simply because it legislates in an area where we have exercised our inherent authority. We note that some judicially imposed habeas corpus limitations have barred claims that do not go to the prisoner‘s actual innocence, such as those based on the admission of illegally obtained evidence. (See Clark, supra, 5 Cal.4th at p. 767.) Proposition 66 goes further in this direction, but that does not make it an invasion of a core judicial function. Courts continue to exercise their authority to entertain habeas corpus petitions under section 1509, as they did under the previous common law limitations. The new restrictions may limit claims that this court previously allowed prisoners to pursue, such as petitions seeking relief when a change in the law affects the validity of the statute under which the prisoner was convicted or sentenced. (See Reno, supra, 55 Cal.4th at p. 466; Clark, at p. 798; compare Lott v. State (Mont. 2006) 150 P.3d 337, 342.) Going forward, prisoners may seek to challenge such limitations in the context of their individual cases. We express no view on their prospects for relief, holding only that the modifications imposed by section 1509 do not materially impair the functioning of the courts.
Petitioner argues that a variety of time limits and calls for expedited proceedings in Proposition 66 interfere with the courts’ inherent power to fairly and effectively address all the matters before them. We note that grants of priority to certain matters, and directives to conduct proceedings as speedily as possible, are a common feature of procedural statutes.24 These legislatively imposed priorities have never been held to impair the courts’ authority to control the disposition of the cases on their dockets. Accordingly, the provisions of Proposition 66 imposing a duty on this court to “expedite the review” of capital cases, appoint counsel “as soon as possible,” and grant extensions of time for briefing only for “compelling or extraordinary reasons” (§ 1239.1, subd. (a)) are within the ordinary range of legislative authority. The same is true for provisions that require superior courts to conduct habeas corpus proceedings “as expeditiously as possible” (§ 1509, subd. (f)), and that declare it a purpose of the statutes governing the Habeas Corpus Resource Center “to expedite the
Petitioner also challenges the specific time limits provided in
The subject is not a new one. We have long recognized that imposing fixed time limits on the performance of judicial functions raises serious separation of powers concerns. In Garrison v. Rourke, supra, 32 Cal.2d 430 (Garrison), we declared that “[a] time limitation for the court‘s action in a matter subject to its determination is not mandatory (regardless of the mandatory nature of the language), unless a consequence or penalty is provided for failure to do the act within the time commanded.” (Id. at pp. 435-436; see Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 343;
The Garrison court rejected the claim, invoking the separation of powers doctrine. “While the courts are subject to reasonable statutory regulation of procedure and other matters, they will maintain their constitutional powers in order effectively to function as a separate department of government. [Citations.] Consequently an intent to defeat the exercise of the court‘s jurisdiction will not be supplied by implication. To what extent the Legislature may constitutionally enact regulations affecting procedure which will defeat or interfere with the exercise of jurisdiction or of the judicial power [citations], is not necessary to determine in the absence, as here, of provisions clearly indicating that intent.” (Garrison, supra, 32 Cal.2d at p. 436.) Reasoning thаt the primary aim of the statute before it was not speed, but ensuring the fairness of an election, Garrison declined to give the term “shall” its normal mandatory interpretation, which would “lead to the result of defeating the aims and purposes of the statute and of raising serious constitutional questions.” (Id. at p. 437.)
Garrison relied in part on In re Shafter-Wasco Irr. Dist. (1942) 55 Cal.App.2d 484 (Shafter-Wasco), which involved a time limit on the resolution of
“Of course it is within the power of the Legislature to impose reasonable rules and regulations governing the exercise of a constitutional power. It is equally true that those constitutional powers may not be so restricted by unreasonable rules as to virtually nullify them. If the statute in question be strictly construed as mandatory and as divesting this court of jurisdiction in three months after the appeal was taken we would have had to decide the case . . . one month and two days after the record was filed here, three days after appellant‘s opening brief was filed and twenty-seven days before respondents’ brief was due for filing. We regard such a limitation on our constitutional power to decide the case as unreasonable . . . . While the record is not formidable it is not inconsiderable. While we have not examined it, there may be presented serious questions for decision that might require careful consideration which could not be given within
The court acknowledged that a statute declaring an appeal “must be heard and determined within three months” would “usually [be] construed as mandatory.” (Shafter-Wasco, supra, 55 Cal.App.2d at p. 488.) However, relying on the rules favoring statutory construction to avoid absurd or unjust results, account for statutory context, and uphold a statute‘s constitutionality when reasonably possible, the court concluded that the time limit before it was “directory and was intended to give this appeal as early a hearing and decision as orderly procedure in this court will permit.” (Id. at p. 489.) Otherwise, the court would have held the statute “an unreasonable limitation on the constitutional powers of the appellate and supreme courts.” (Id. at p. 488.)
In Garrison and Shafter-Wasco, the courts preserved jurisdiction and maintained the separation of powers by holding that time limits phrased in mandatory terms were merely directory.28 In People v. Engram (2010) 50 Cal.4th 1131 (Engram) we examined the separation of powers problems posed by a statute prescribing a mandatory calendar preference. A criminal prosecution had been dismissed under the speedy trial statute (
The Engram court disagreed. “It is well established, in California and elsewhere, that a court has both the inherent authority and responsibility to fairly
In Engram we acknowledged the Legislature‘s power to enact rules of procedure, but quoted Brydonjack for the fundamental limitation noted above: ” ‘The sum total of this matter is that the legislature may put reasonable restrictions upon constitutional functions of the courts provided they do not defeat or materially impair the exercise of those functions.’ ” (Engram, supra, 50 Cal.4th at p. 1147, quoting Brydonjack, supra, 208 Cal. at p. 444.) We discussed two examples in which the courts refused to give mandatory effect to statutes requiring
The Engram court emphasized that under the terms of
One more case merits consideration. Before the court in Verio Healthcare, Inc. v. Superior Court (2016) 3 Cal.App.5th 1315 (Verio) were amendments to the statutes reviewed in Thurmond, supra, 66 Cal.2d 836. The year after Thurmond was decided, the Legislature amended
Relying on Engram, Thurmond, and Lorraine, the Verio court held that “[u]nless
Thus, our case law establishes that while the Legislature has broad authority to regulate procedure, the constitutional separation of powers does not permit statutory restrictions that would materially impair fair adjudication or unduly restrict the courts’ ability to administer justice in an orderly fashion. Repeatedly, for over 80 years, California courts have held that statutes may not be given mandatory effect, despite mandatory phrasing, when strict enforcement would creatе constitutional problems.
Petitioner disagrees. He contends the enforcement provisions of
On balance, we conclude it is best to accept the Attorney General‘s and intervener‘s concession that the five-year limit is not mandatory. We do so for two reasons. First, regardless of how the ballot materials characterized the five-year review limit,
Notably, the time limit for which
In any event, it would be no solution to simply replace the letter “b” with the letter “d” in
If there were any one court responsible for compliance with the five-year review limit of
Furthermore, while writs of mandate may be issued to lower courts, achievement of the five-year goal depends in large part on a variety of discretionary determinations by superior courts and courts of appeal, most of which would not be controllable by writ of mandate. It is settled that ” ‘mandamus will not lie to control the discretion of a court or judicial officer or to compel its exercise in a particular manner, except in those rare instances when under the facts it can be legally exercised in but one way [citations].’ ” (City of Torrance v. Superior Court (1976) 16 Cal.3d 195, 201-202, italics omitted; see 8 Witkin, Cal. Procedure, supra, Extraordinary Writs, § 99 et seq., p. 993 et seq.) This limitation is fundamental, and implicit in the provisions of our state Constitution governing writ jurisdiction. (Modern Barber, supra, 31 Cal.2d at p. 731.) For all these reasons,
As the concurring and dissenting opinion emphasizes, the ballot materials suggested the five-year limit would be mandatory. However, nowhere were the voters informed of the details of an enforcement mechanism. The materials mentioned the availability of a court order, but did not explain how such an order could effectively result in compliance. We recognize that the last sentence of
It would require extensive rewriting to create an operative enforcement mechanism. Even if we undertook that task, any provision that would make the five-year limit mandatory would pose serious separation of powers problems. When we exercise our power of reformation, we do so in order to preserve a statute‘s constitutionality, not to threaten it. “[W]e have the authority to revise [a statute] in a manner that avoids constitutional problems . . . .” (People v. Sandoval (2007) 41 Cal.4th 825, 844, italics added.) “[N]umerous decisions of the United States Supreme Court and lower federal courts and sister states, and numerous decisions of this court, amply support the propriety of judicial reformation — including ‘rewriting’ — of statutes to preserve constitutionality . . . .” (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 626, italics added.) It has never been our practice to rewrite a statute only to strike it down as unconstitutional.
The concurring and dissenting opinion argues at length that the voters intended the five-year limit to be mandatory. We do not dispute that point. However, it remains the case that
In the cases cited above, mandatory statutory terms were intended to expedite proceedings or control docket management, but the courts declined to infer a broader intent to infringe on inherent judicial authority. As the Verio court put it, “we are not persuaded the Legislature intended to intrude on the right of the courts ’ “to control [their] order of business and to so conduct the same that the rights of all suitors before them may be safeguarded. This power has been recognized as judicial in its nature, and as being a necessary appendage to a court organized to enforce rights and redress wrongs.” ’ ” (Verio, supra, 3 Cal.App.5th at p. 1319, quoting Thurmond, supra, 66 Cal.2d at p. 839, and Lorraine, supra, 220 Cal. at p. 756.)
Following nine decades of precedent, we too decline to infer that lawmаkers intended strict adherence to a fixed deadline that would undermine the courts’ authority as a separate branch of government. It is far from certain that the voters contemplated such a result. Nothing in the Proposition 66 suggests that
Accordingly, we conclude that the five-year review limit in
In Engram we read the terms of
Similar considerations apply to
The limits in
We note that
Our conclusion that the time limits in
It remains to be seen how effective the procedures enacted by Proposition 66 will be in expediting the capital posttrial review process. The time limits reflect the voters’ will, which we respect. However, they were presented to the voters by the proponents of Proposition 66 without the benefit of hearings or research exploring their feasibility or their impact on the rest of the courts’ work. As the concurring opinion explains, these are issues of considerable complexity and difficulty. The implementation of Proposition 66 will necessarily be an ongoing process of exploration and adaptation. The Judicial Council is tasked with monitoring the review process established by the initiative. (
Much depends on the funding made available by the Legislature. What cannot be permitted is the material impairment of judicial functions by any statute. The superior courts must be allowed to exercise their “ultimate control or discretion over the order in which the cases pending before [them] should be considered” (Engram, supra, 50 Cal.4th at p. 1151), and to give each case the time
The Judicial Council, in drafting the “rules and standards of administration” for carrying out Proposition 66‘s reforms (
E. The Effective Date of Proposition 66
Proposition 66 declares that “all sections of this act take effect immediately upon enactment.” (Prop. 66, § 19.) However, we stayed the implementation of the measure pending our resolution of this matter. The effective date is a question of some importance, particularly for the Judicial Council, which is tasked with developing rules and standards “[w]ithin 18 months of the effective date.” (
III. DISPOSITION
We discharge the order to show cause, and deny the amended and renewed petition for a writ of mandate and injunctive relief.
CORRIGAN, A. C. J.
WE CONCUR:
WERDEGAR, J.
LIU, J.
KRUGER, J.
HOCH, J.*
Proposition 66 amended
I believe both positions are reasonable. Like Justice Cuéllar, I find it stunning that Proposition 66‘s proponents and the Attorney General claim that the voters intended the five-year limit to be nonbinding or aspirational when that claim is plainly belied by the ballot materials and advocacy campaign for Proposition 66. (Conc. & dis. opn., post, at pp. 2–3, 11–15.) Howevеr, the electorate passed Proposition 66 against a backdrop of precedent construing similar mandates as nonmandatory when necessary to save their constitutionality (maj. opn., ante, at pp. 41–49), and we presume the electorate is ” ‘aware of existing laws and judicial construction thereof’ ” (People v. Gonzales (2017) 2 Cal.5th 858, 869). Although I am unsure whether I would construe voter intent as flexibly as our decisions have, I acknowledge this is one way of enforcing the
I write separately to highlight that whether the five-year limit is directive or unconstitutional, it does not and could not bind those charged with implementing Proposition 66. It is clear that a majority of the 2016 electorate voted “to shorten the time that the legal challenges to death sentences take.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016), analysis of Prop. 66 by Legis. Analyst, p. 105 (2016 Voter Guide).) But Proposition 66 contains no plan to compress into five years a process that often takes two decades, and no entity — not this court, not the Judicial Council, not the Legislature — can simply wave a magic wand and make it so. Although there may be ways to streamline the process, realistic reforms must emanate from a clear understanding of the way the postconviction death penalty process works in California. As explained below, the five-year limit is not grounded in the realities of California‘s death penalty process or in the reasonable possibilities for reform. Thus, in addition to lacking strict enforceability, the five-year limit cannot serve as a realistic benchmark to guide courts or the Judicial Council as they implement Proposition 66. It is instead “an exhortation to the parties and the courts to handle cases as expeditiously as is consistent with the fair and principled administration of justice.” (Maj. opn., ante, at p. 55.)
Today there are nearly 750 prisoners on death row in California; they comprise roughly a quarter of all condemned inmates in the United States. The process for reviewing death judgments is complex and multilayered, and the incidence of reversible error is significant. (See U.S. Dept. of Justice, Bur. of Justice Statistics, Capital Punishment, 2013—Statistical Tables (2014) p. 19, tbl. 16, available at https://www.bjs.gov/content/pub/pdf/cp13st.pdf [as of Aug. 24, 2017] [reporting that 38 percent of the 8,466 prisoners sentenced to death between 1973 and 2013 had their convictions or sentences overturned]; Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973–1995 (2000) 78 Tex. L.Rev. 1839, 1850 [reporting that state and federal courts nationwide found prejudicial error in 68 percent of capital cases between 1973 and 1995].)
In California, after a death judgment has been imposed in the trial court, the defendant is entitled to an automatic appeal to review any errors that may have occurred during trial. (
On average in California, it takes three to five years after a death judgment to appoint appellate counsel. (Jones v. Chappell (C.D. Cal. 2014) 31 F.Supp.3d 1050, 1056 (Jones), revd. by Jones v. Davis (9th Cir. 2015) 806 F.3d 538.) In April 2016, there were 49 capital defendants waiting for attorneys to be appointed for direct appeals and 360 capital defendants waiting for attorneys to be appointed
Direct appeals in this court are completed on average 11.7 to 13.7 years after the death judgment. (Jones, supra, 31 F.Supp.3d at p. 1057.) Many appeals take considerably more time. (See, e.g., People v. O‘Malley (2016) 62 Cal.4th 944 [25 years from judgment of the death to resolution on appeal]; People v. Cunningham (2015) 61 Cal.4th 609 [19 years]; People v. Brown (2014) 59 Cal.4th 86 [18 years].) State habeas review is completed on average more than 17 years after the death judgment. (Jones, at p. 1059.) In April 2016, there were 337 direct appeals and 263 state habeas corpus petitions pending in this court. (2016 Voter Guide, supra, analysis of Prop. 66 by Legis. Analyst, p. 105.)
As of 2014, only 81 inmates out of the more than 900 sentenced to death in California since 1978 have completed the postconviction review process in both state and federal court. (Jones, supra, 31 F.Supp.3d at p. 1060.) Of those 81, about half have received relief from their death sentences, 13 have been executed, and 17 have had their executions stayed. (Id. at p. 1069.)
In 2008, the California Commission on the Fair Administration of Justice (Commission) studied the death penalty postconviction process. (Cal. Com. on the Fair Admin. of Justice, Final Report (2008) (Commission Report).) The Commission was chaired by former Attorney General and Los Angeles District Attorney John Van De Kamp, and it included law enforcement officials, prosecutors, public defenders, and academics. The Commission held hearings and gathered input from a broad cross-section of stakeholders. (Id. at p. 113.) The
The Commission also addressed the backlog of death penalty appeals pending in this court. This court decides 20 to 25 death penalty appeals each year and issues a published opinion in each case. It typically takes two to three years for this court to decide an appeal once it has been fully briefed. (Commission Report, at p. 147.) The Commission endorsed the proposal of then Chief Justice Ronald George to amend the state Constitution so that this court would have discretion to transfer fully briefed death penalty appeals to intermediate appellate courts, provided that the Commission‘s recommendations for appointing appellate and habeas counsel were also implemented. (Commission Report, at pp. 147–148.) This court also decides approximately 30 habeas corpus petitions each year; although we do not typically issue published opinions in these cases, our deliberative process includes the preparation of lengthy internal memoranda carefully examining each issue raised in each petition. The Commission endorsed
In 2013, a coalition of law enforcement officers, prosecutors, and crime victims proposed a ballot initiative, called the Death Penalty Reform and Savings Act of 2014 (2014 Proposed Initiative), that was similar in many ways to Proposition 66. The 2014 Proposed Initiative did not incorporate the Commission‘s proposals to expand the Office of the State Public Defender or the Habeas Corpus Resource Center. But it did include some of the other Commission recommendations. One of the Proposed Initiative‘s key provisions was an amendment of article VI, section 11, subdivision (a) of the California Constitution to provide that Courts of Appeal have appellate jurisdiction over death penalty cases, just as they have over other cases. (2014 Proposed Initiative, § 4.) Further, the 2014 Proposed Initiative would have added a new section to article VI authorizing this court to review Court of Appeal decisions in capital cases and to summarily affirm if there are no errors affecting the judgment and there is no need to secure uniformity of law or address an important question of law. (2014 Proposed Initiative, § 5.) Also consistent with the Commission‘s recommendations, the 2014 Proposed Initiative would have added section 1509, subdivision (a), requiring that all habeas corpus petitions be transferred to the court imposing the capital sentence unless good cause is shown. These changes were intended to address one of the findings of the Proposed Initiative: “The California Supreme Court is overloaded with death penalty appeals, causing lengthy and unnecessary delays. Spreading these death penalty cases among the Courts of Appeal (like the federal courts do) will allow the defendants’ claims to be heard sooner. The Supreme Court has suggested a similar change. Experts have concluded this change will save hundreds of millions of dollars.” (2014 Proposed Initiative, § 2(7).)
After some signature gathering, the initiative proponents decided to postpone the effort until 2016. (Nirappili, Coalition Delays Initiative to Reform State Executions, Mercury News (May 11, 2014) p. B4.) Proposition 66, the result of that delayed effort, retains many of the features of the 2014 Proposed Initiative. But the proponents abandoned any effort to amend the California Constitution. (See
Proposition 66 does not increase the availability of appellate and habeas attorneys, beyond requiring this court to compel certain criminal appellate attorneys to take death penalty appeals against their will. (
Further, the new provision that this court “shall only grant extensions of time for briefing for compelling or extraordinary reasons” (
Although transfer of capital habeas corpus petitions to the superior court may expedite the adjudication of those petitions, superior courts asked to help reduce this court‘s substantial backlog of habeas corpus cases will likely require additional resources to address petitions that are often as lengthy and time consuming as direct appeals. (See, e.g., In re James David Beck (filed Nov. 28, 2012, S206945) [320-page petition for writ of habeas corpus with 12 claims, numerous subclaims, and 18 volumes of exhibits].) It is unclear whether the Legislature will appropriate funds for this purpose. Nor does Proposition 66 expedite the appointment of capital habeas attorneys. And the constitutionality of Proposition 66‘s restrictions on successive petitions (
To put the postconviction process into perspective, let us consider a real example. A case not far from the norm is that of Robert Mark Edwards. He was convicted of first degree murder with burglary-murder and torture-murder special circumstances, and he was sentenced to death in September 1998. Counsel was appointed four years later in October 2002. Counsel filed a record correction
In Edwards‘s case, 19 years have passed since the judgment of death. The direct appeal has been completed, the state habeas corpus petition has not been decided, and the case has not yet begun its lengthy sojourn in federal court. It is not clear how Proposition 66 would have appreciably accelerated the appointment of appellate or habeas counsel, shortened the record correction process, abbreviated the multiple rounds of briefing addressing numerous issues drawn
In sum, the protracted nature of the postconviction death penalty process is the product of several factors, including chronic delays in appointing appellate and habeas counsel, limitations on funding for the Office of the State Public Defender and Habeas Corpus Resource Center, the enormity of the record and the scale of the parties’ briefing in light of the peculiar nature of the death penalty, and the fact that all appeals go to a single court, inevitably resulting in a bottleneck.
II.
I agree that
Thurmond v. Superior Court (1967) 66 Cal.2d 836 (Thurmond), a paternity action, involved statutory provisions requiring the court to grant a continuance when the attorney for one of the parties is a member of the Legislature and the Legislature is in session. We held that the provisions “should be given full force and effect wherever and whenever it may be done without unduly adversely affecting the rights of others,” and we prescribed a number of factors the court should consider in exercising its discretion as to whether a continuance should be granted. (Id. at p. 840.)
In In re Shafter-Wasco Irr. Dist. (1942) 55 Cal.App.2d 484 (Shafter-Wasco), the court declined to treat as mandatory a statutory deadline requiring judicial resolution of an appeal concerning the dissolution of an irrigation district to be decided three months after the appeal is filed. The court instead construed
In each of these cases, the court interpreted as “directive” a seemingly mandatory statute that threatened to impair core judicial functions, and the decisions make clear that courts have authоrity to determine the proper weight to be given to the statutory directive. That determination is contextual. In some cases, as in Thurmond, the directive statute can serve as a default that constrains judicial discretion unless certain conditions apply. (Thurmond, supra, 66 Cal.2d at p. 840.) In Engram, the force of the statute was more vague; we construed the directive to give priority to criminal cases over civil cases as subject to the open-ended condition that “such precedence [must be] consistent with the ends of justice.” (Engram, supra, 50 Cal.4th at p. 1161.) And Shafter-Wasco, in interpreting a statutory deadline as a directive “to give this appeal as early a hearing and decision as orderly procedure in this court will permit” (Shafter-Wasco, supra, 55 Cal.App.2d at p. 489), said it was ultimately up to the court to determine a reasonable timeframe for deciding the appeal.
Directive statutes that set realistic time limits on judicial decisions may inform how quickly cases should be decided, although the issue is ultimately left to judicial discretion. But when a time limit purports to dictate what is not “reasonably possible” to achieve (maj. opn., ante, at p. 58), it cannot serve as a meaningful benchmark. Such is the case with the five-year time limit in section 190.6(d). The realities of California‘s postconviction death penalty process mean that without a radical reorganization of this court‘s functions, a restructuring of the role of lower courts beyond what Proposition 66 provides, and a significant infusion of resources from the Legislature, the five-year time limit is not remotely close to realistic.
Section 190.6(d) purports to delegate the challenge of meeting the five-year limit to the Judicial Council, which is supposed to “continuously monitor the timeliness of review of capital cases and . . . amend the rules and standards as necessary to complete the state appeal and initial state habeas corpus proceedings within the five-year period provided in this subdivision.” But how is the Judicial Council supposed to bring about the vast acceleration of the death penalty process necessary to meet the five-year deadline? The Judicial Council has no authority to direct the Legislature to appropriate more funds to expand the Office of the State Public Defender or the Habeas Corpus Resource Center. It has no authority to change the state Constitution to permit Courts of Appeal to hear death penalty appeals. And it has no authority to require this court or any other court to devote a greater proportion of its docket to death penalty cases at the expense of other cases that fall within its constitutional responsibilities.
The delegation of broad rulemaking power to the Judicial Council spared the voters (and the proponents of Proposition 66) from having to make difficult choices as to what should be sacrificed for the sake of dramatically expediting the death penalty. But these are precisely the choices that the lawmaking authority,
Of course, section 190.6(d) is only one part of Proposition 66; the proponents of Proposition 66 stated at oral argument that the five-year limit “is not the centerpiece” of the initiative. Proposition 66 prescribes several specific reforms, such as a new rule for granting extensions of time for briefing (
But whether Proposition 66 actually speeds up (or slows down) the process will have nothing to do with section 190.6(d)‘s unelaborated and unrealistic directive that state death penalty appellate and habeas corpus proceedings “shall” be completed within five years. The court properly acknowledges that this provision reflects the voters’ desire to shorten the postconviction death penalty process. But the five-year limit, construed as directive or simply unconstitutional, has no binding effect and provides no guidance for responsible actors charged with the fair and efficient administration of justice.
LIU, J.
WE CONCUR: WERDEGAR, J.
KRUGER, J.
HOCH, J.*
What voters most need so they can exercise their constitutionally protected franchise effectively is clarity and candor. Particularly at a time when public discourse dwells on foreign interference in our electoral process, social media bots, and manipulated Facebook news feeds, it is possible –– perhaps even easy –– to forget how millions of voters endeavor to familiarize themselves with the candidates and issues of the day, and to understand the consequences of their vote. Voters who sought to do so by studying Proposition 66, the Death Penalty Reform and Savings Act of 2016 (Proposition 66), would not recognize the initiative the majority purports to uphold today. What reasonable voters would have clearly recognized instead –– based on the statutory text, the official description by the Legislative Analyst, and the arguments made by the initiative‘s proponents –– is that Proposition 66 contained a genuine, enforceable, five-year deadline for completion of the state court appeal and resolution of the initial habeas corpus petition in death penalty cases. Candor requires us to be equally clear about whether such a deadline accords with our law: It does not. A statutory limit on the amount of time a court may spend deciding a case is an intrusion on quintessential judicial functions and violates the California Constitution‘s separation of powers provision. (See
Only by misconstruing this mandatory five-year time limit as nothing more than an “exhortation” for faster death penalty adjudication does the majority
Proposition 66 further runs afoul of the California Constitution by purporting to authorize an appeal to the Court of Appeal from the decision of a superior court on an initial capital habeas corpus petition. (See
I.
Our first task is to answer a question as simple as it is important: What kind of time limit did the voters enact? When voters face the often daunting process of considering a new statute or constitutional amendment at the ballot box, state law directs the Secretary of State to prepare a voter information guide. The guide must include a complete copy of each proposed measure, the arguments and rebuttals for and against, and an analysis prepared by the Legislative Analyst. (
Now imagine a reasonable voter consulting the voter information guide to Proposition 66. What would the voter have gleaned –– immediately –– about the initiative‘s purpose? In the very first of its findings and declarations, the initiative stated that our “death penalty system is ineffective because of waste, delays, and inefficiencies.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) Prop. 66, § 2, subd. (1), p. 212 (Voter Guide).) The findings and declarations went on to lament that “[f]amilies of murder victims should not have to wait decades for justice” and that “[h]undreds of killers have sat on death row for over 20 years.” (Id., § 2, subd. (3), p. 213.) The findings and declarations concluded by promising that if enacted, “[a] capital case can be fully and fairly reviewed by both the state and federal courts within ten years.” (Id., § 2, subd. (10), p. 213.)
To fulfill that explicit promise, the initiative added and amended various provisions of the Penal Code to include several new procedures. One of them was a requirement that “the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases” within five years of the entry of judgment. (
Then the 2016 general election took place. With the aforementioned provisions at the heart of the initiative –– and no doubt influenced by promises made in the Voter Guide –– voters narrowly enacted Proposition 66. Petitioner then immediately filed this petition for writ of mandate. In it, he advanced a separation of powers challenge to the provision requiring California courts to resolve the automatic appeal and initial habeas corpus petition in capital cases within five years. But here‘s the twist: At oral argument, the initiative‘s proponents (intervener Californians to Mend, Not End, the Death Penalty) admitted that an actual five-year deadline would “perhaps not” be constitutional. The proponents instead let it slip that the initiative‘s five-year deadline is not a deadline after all, but just a “goal” that has no real consequence if it goes unmet. The Attorney General, also purportedly arguing in support of Proposition 66, added that this five-year “goal” was not “binding” and is really just “an invitation to take up the question of how long these appeals should take.”
This is what might be charitably described as a novel reinterpretation of the initiative‘s five-year deadline for resolution of the automatic appeal and initial capital habeas corpus petition. It is at odds –– entirely –– with what the initiative says, how it was designed to work, and how it was sold. Even more remarkably, the majority blithely accepts this neutering of what clearly appeared to the voters
A.
Petitioner argues that a statute purporting to dictate when a court shall hear and determine a case would unconstitutionally interfere with the judiciary and violate the separation of powers. Both the Attorney General and intervener-proponents so concede. Little wonder: With but one exception, state supreme courts have unanimously concluded that the timing of a judicial decision is a core judicial function, protected from legislative encroachment. (State v. Buser (2015)
The majority does not contest a court‘s inherent authority to manage its docket in a manner that best promotes the pursuit of justice. (Maj. opn., ante, at p. 46.) What the majority claims instead is that, under our precedent, “statutes may not be given mandatory effect, despite mandatory phrasing, when strict enforcement would create constitutional problems.” (Id. at p. 49.) But the responsibility we shoulder is to render constitutional rulings clear enough to foster meaningful deliberation rather than simply offering vague references to “constitutional problems,” and to construe statutes in a manner that preserves the integrity of the democratic process. A statute‘s purpose is paramount and may not be disregarded. Language is not putty. And it is not for us to declare, in gross, that a legislative body will never be understood as having enacted an unconstitutional law, for the question whether the enacting body had such a purpose will depend on the particular statutory text, structure, and legislative history. So it is one thing to declare a statute unconstitutional when it cannot be saved, yet quite another to pretend a statute means what it does not simply so it can be saved. The latter сourse takes the court well beyond adoption of a saving construction when the statute reasonably allows it, into a realm straining the court‘s norms as well as its powers. (Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 187 [” ’ “If this court were to insert in the statute all or any of the . . . qualifying provisions [required to render it constitutional], it would in no sense be interpreting the statute as written, but would be rewriting the statute . . . .” ’ “].) Saving an unsound construction is neither possible nor desirable.
Indeed, what we actually do when legislation might seem to regulate the time afforded the judiciary to decide motions or cases is instead quite different from what the majority describes. We require a clear statement that such
This, too, is the principle at the heart of our analysis in People v. Engram (2010) 50 Cal.4th 1131 (Engram). There, we held that
A candid analysis of a statute‘s purpose was also pivotal to In re Shafter-Wasco Irr. Dist. (1942) 55 Cal.App.2d 484. The Court of Appeal construed a statute providing that an appeal of a judgment concerning an irrigation district‘s dissolution ” ‘must be heard and determined within three months after the taking of such appeal.’ ” (Id. at p. 486.) The Court of Appeal acknowledged that “[s]uch language is usually construed as mandatory,” but cautioned that it is also ” ‘in many cases . . . directory merely.’ ” (Id. at p. 488.) Because “courts should construe statutes so they may be held constitutional where it is reasonably possible to do so” (id. at p. 488), the Court of Appeal concluded that this language could and would be construed as reflecting a purpose to grant the appeal “as early a hearing and decision as orderly procedure in this court will permit” (id. at p. 489).
And in Garrison, supra, 32 Cal.2d 430, we held that a statute providing that a court ” ‘shall’ ” (id. at p. 435) decide an election contest within 10 days should
What we may not do, under the guise of the avoidance canon, is ” ‘rewrite the law or give the words an effect different from the plain and direct import of the terms used.’ ” (People v. Leal (2004) 33 Cal.4th 999, 1008; accord, Salinas v. United States (1997) 522 U.S. 52, 59-60.) For good reason: Invoking the canon when there‘s no plausible interpretation of a statute that can avoid a constitutional conflict does justice neither to the enacted statute, the voters’ will, nor the constitutional values at stake. Courts do not have the power to disregard a clear statement that a judicial deadline is mandatory, nor to construe a mandatory deadline to be something other than what it is. Yet that is precisely what the majority confesses it has done.
I respectfully submit that the majority‘s construction of the five-year deadline in
Which is exactly the opposite of what a directory interpretation does to the most reasonable understanding of the electorate‘s purpose in enacting the five-year deadline. Subdivision (e) of section 190.6 expressly provides a mechanism by which crime victims can seek to enforce the deadline: “If a court fails to comply without extraordinary and compelling reasons justifying the delay, either party or any victim of the offense may seek relief by petition for writ of mandate.” In their briefs, all of the parties agreed that Proposition 66 “requires” or “directs” state courts to complete the automatic appeal and review of the initial state habeas corpus petition within five years, and that the five-year deadline is –– and was intended to be –– enforceable through a petition for writ of mandate. The penalty set forth in
Note that a different subdivision of section 190.6 already provided, prior to Proposition 66, that “it is the Legislature‘s goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing.” (
Although the text and structure at issue here are sufficient to demonstrate the voters’ purpose, the materials in the voter information guide extinguish whatever doubts could conceivably remain. As stated above, a heading in the Voter Guide‘s analysis told voters in bold and italicized type that Proposition 66 ”Requires Completion of Direct Appeal and Habeas Corpus Petition Process Within Five Years.” (Voter Guide, supra, analysis of Prop. 66 by Legis. Analyst, p. 106.) The Legislative Analyst went on to explain that “[i]f the process takes more than five years, victims or their attorneys could request a court order to address the delay.” (Ibid.) Whether this remedy is workable or not in principle,
So did the Legislative Analyst, who referred, five times, to the five-year “requirement” or stated that the initiative “requires” completion of state court review within five years. (Voter Guide, supra, analysis of Prop. 66 by Legis. Analyst, pp. 106-107.)2 In describing “WHAT PROPOSITION 66 DOES,” intervener-proponents, too –– in sharp contrast to their revisionist concession at oral argument –– confirmed to voters that “[a]ll state appeals should be limited to 5 years” if the initiative were enacted. (Voter Guide, supra, argument in favor of Prop. 66, p. 108.) And the uncodified findings and declarations in the initiative itself were replete with representations that the initiative “will” mean that defendant‘s legal claims will be heard sooner and that victims “will” receive timely justice. (Voter Guide, supra, Prop. 66, § 2, subds. (6), (10), p. 213; cf. Valencia, supra, 3 Cal.5th at p. 360 [“the alleged effect on the Three Strikes Reform Act is not reflected in the uncodified provisions of Proposition 47 that set forth the purposes of the measure“].) Indeed, the mandatory five-year deadline represented a significant statutory change, whose fiscal impact the Legislative Analyst sought to estimate. (Voter Guide, supra, analysis of Prop. 66 by the
The campaign for Proposition 66 itself did so, too. (See California Housing Finance Agency v. Patitucci (1978) 22 Cal.3d 171, 177 [“evidence of [the proposition‘s] purpose may be drawn from many sources“]; id. at p. 178 [examining newspaper and campaign literature concerning the proposition]; see generally People v. Hodges (1999) 21 Cal.4th 109, 114 [“we are obliged to interrogate the electorate‘s purpose, as indicated in the ballot arguments and elsewhere“].) The website for “No on 62, Yes on 66” pledged that “Proposition 66 will ensure justice for both victims and defendants by [¶] Reforming the
Given this backdrop, there is a straightforward, readily-grasped constitutional flaw in
B.
The majority‘s efforts to avoid this conclusion are far from convincing.
The majority‘s misguided analysis begins, but does not end, with its reliance on an exceedingly narrow and unjustified reading of
Now consider the implication of inferring a restriction in the scope of this sentence, as the majority proposes. Doing so would mean that the “party” who had failed to submit a timely opening appellate brief would be able to seek relief from “a court” for “the delay” in the party‘s timely filing of its own brief –– a remedy without a right if there ever was one. Given its context, the structure of the statute, and the materials presented to the voters, we can safely conclude that what the second sentence in subdivision (e) means is precisely what it says: Either party, or any victim, may seek relief by petition for writ of mandate when a court fails to comply with a deadline set forth in
The majority says it must construe the five-year deadline as directory “regardless of how the ballot materials characterized” it because there is no “workable” means of enforcing the deadline. (Maj. opn., ante, at pp. 49, 52.) The majority cited no support for this conclusion because none exists, nor did it offer any compelling argument for why this approach makes sense. That the scheme is unworkable is both true and easily understood. Of course there‘s no tribunal in which a party could seek a writ of mandate directed to us. But even more important, compliance with the five-year deadline depends in large part on a series of discretionary determinations by superior courts, the Court of Appeal, and this court — yet mandamus cannot be used to ” ’ “control the discretion of a court or judicial officer or to compel its exercise in a particular manner, except in those rare instances when under the facts it can be legally exercised in but one way [citations].” ’ ” (City of Torrance v. Superior Court (1976) 16 Cal.3d 195, 201-202.) So the majority is right to conclude that the mandate mechanism –– no matter how it is interpreted –– is a hollow promise.
Moreover, nothing in our case law, the case law from any other jurisdiction, or in the inherent logic of constitutional or statutory interpretation makes the characterization of a statutory time limit for judicial processes turn on whether the enforcement mechanism would be “workable.” (Maj. opn., ante, at p. 52.) It‘s doubtful that any mechanism to enforce a statutory deadline on the resolution of a case or motion could ever be entirely workable, since such a deadline (as the
Equally unpersuasive is the majority‘s next justification for construing the clearly mandatory deadline as merely directory. According to the majority, it was not sufficient that the text, structure, context, and legislative history demonstrated that the deadline was mandatory. Rather, the ballot materials also needed to inform the voters about “the details of an enforcement mechanism” and “how such an order could effectively result in compliance.” (Maj. opn., ante, at p. 52.) If such a requirement is to be plucked out of thin air –– as I fear this one has been –– then it needs a compelling substantive or institutional justification that the majority does not provide. To my knowledge, we have never required the voters to sit through a constitutional law lecture before we would be willing to interpret a law as it was written.
Such a requirement strikes me as inconsistent with the very 83-year-old case the majority purports to be vindicating. Unlike this case, Lorraine did not even involve a constitutional challenge (Lorraine, supra, 220 Cal. at p. 756) — we instead considered only the mandatory/directory character of a statute providing that a court ” ‘shall’ ” postpone a trial or hearing for up to 30 days ” ‘when all attorneys of record of parties who have appeared in the action agree to such postponement.’ ” (Id. at p. 754.) Tellingly, we did not inquire whether the Legislature had sufficiently ruminated about “the details” of the rule‘s operation or
That‘s quite a contrast with the five-year deadline here, which even the majority concedes was meant to be mandatory. (Maj. opn., ante, at pp. 49, 52-53.) When a statute encroaches on a court‘s discretion in managing its docket — and there is a clear statement the statute is mandatory, not directory — then we have no option but to provide the public and the other branches with the requisite clarity of decision and doctrine by declaring the statute unconstitutional as a violation of
At issue in Verio were amendments to two civil procedure statutes we had previously construed in Thurmond, supra, 66 Cal.2d 836 to be directory. (Verio, supra, 3 Cal.App.5th at p. 1325-1326.) In 1968, one year after Thurmond, the Legislature amended each of those statutes to add a new provision stating that a continuance or extension of time requested by a party or attorney who is a member of the Legislature then in session “is mandatory,” unless the court determined that the continuance or extension of time would defeat or abridge a right to relief in specified proceedings. (
The majority holds out Verio as an example of a court interpreting a statute as directory, despite its mandatory phrasing. Verio does not even mildly support the majority‘s position. The Verio court “refused to give the statutes mandatory effect” (maj. opn., ante, at p. 48) for the simple reason that the amendments making the statutes mandatory had been struck down as unconstitutional. (Verio, supra, 3 Cal.App.5th at p. 1330.) The remainder of the statutes, though, could still be given effect in a manner consistent with our jurisprudence on severability and the statutory design. (See Legislature v. Eu (1991) 54 Cal.3d 492, 535.) The invalid mandatory provisions were set forth in a separate subdivision (see
Ironically, it is the part of Verio that is on point — the part declaring mandatory provisions unconstitutional — that the majority ignores. Instead the majority relies on the part of Verio that read directory language to be directory, but that part is of no assistance here. No one — not the majority, not the Attorney General, not the intervener-proponents — claims the five-year deadline is somehow severable from the mandatory aspects of the initiative. (See Katyal & Schmidt, Active Avoidance: The Modern Supreme Court and Legal Change (2015) 128 Harv. L.Rev. 2109, 2121, fn. 47 [“Whеn a court uses the rewriting power, it is, in effect, implicitly assuming the outcome of the severability analysis and acting with less candor and transparency than a court that does the analysis explicitly“].) And nothing in the record suggests the voters would have preferred a directory interpretation of the five-year deadline to its invalidation. To the contrary: Several statutes already offered what the majority calls “an exhortation to the parties and courts to handle cases as expeditiously as is consistent with the
Litigants and policymakers are unlikely to discover much improvement — or “benefit” (maj. opn., ante, at p. 44, fn. 28) — in the majority’s implausible construction of the five-year deadline, either. It would be exceptionally difficult, and potentially quite fraught, for the Judicial Council to implement whatever might allegedly remain of the five-year time limit while preserving “the courts’ inherent authority over their dockets.” (Id. at p. 59.) So I agree with Justice Liu: The Judicial Council is under no compulsion to adopt rules or standards meant somehow to expedite judicial review of death penalty cases beyond those that implement the specific reforms enumerated in other parts of Proposition 66. (See
“Good luck” might be in order as well for those who contemplate a challenge to the constitutionality of other statutes and may now wonder whether this court will instead redraft laws to avoid “constitutional problems.” (Maj. opn., ante, at p. 49.) It is not judicial modesty that authorizes a court to distort the text of a statute in a way that subverts its purpose. Nor does judicial restraint justify a court deliberately reading a law to mean something other than what the voters enacted. When the majority says that it will construe statutes to be directory — despite their “mandatory phrasing,” despite what “the voters were told,” and despite what “the voters intended” as the statute’s purpose (maj. opn., ante, at pp. 49, 53) — the act becomes precisely the opposite of judicial modesty. The court instead substitutes its own preferences, without justification, for those embodied in legislation. (See Manning, The Nondelegation Doctrine as a Canon of Avoidance (2000) Sup. Ct. Rev. 223, 255-256.) And while it may sometimes be possible for the legislative branch to correct a mistaken judicial construction of a statute it had duly enacted, that’s an unlikely prospect here. Under the terms of the initiative, the newly minted five-year “goal” just announced by the majority and given some degree of legal weight by it can now be overturned only by a vote of three-fourths of the membership of each house of the Legislature, or by a whole new initiative.
When we construe Proposition 66, we find that nothing in the initiative or the record suggests that reasonable voters would have understood the initiative to enact merely a “guideline[]” or a “goal.” (Maj. opn., ante, at pp. 44, fn. 28, 52; cf. Valencia, supra, 3 Cal.5th at p. 364 [refusing to adopt a permissible construction that would “be inconsistent with [the initiative]’s uncodified findings, declarations, purpose, and intent”].) Rather than redraft the initiative while casting aside its purpose, we should interpret the five-year deadline in section 190.6 to mean what it says, and analyze its constitutionality fairly and fully. Having undertaken that task, I would invalidate those portions of section 190.6, subdivision (d) that purport to impose a deadline for completion of “the state appeal and the initial state habeas corpus review in capital cases” and to charge the Judicial Council with promulgating rules and standards to ensure the completion of such review “within the five-year period provided in this subdivision.”
II.
The five-year deadline is not Proposition 66’s only constitutional defect. The majority also errs in upholding new section 1509.1, subdivision (a), which purports to vest the Court of Appeal with appellate jurisdiction in capital habeas corpus proceedings: “Either party may appeal the decision of a superior court on an initial petition under Section 1509 to the court of appeal.” Under our state Constitution, this court has “exclusive” appellate jurisdiction “ ‘in death penalty cases.’ ” (Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 124 (Thompson).)
The majority concedes this new provision constitutes a “significant departure” from existing practice governing appellate review of capital habeas
Like most states that have retained the death penalty, California has entrusted appellate jurisdiction in death penalty cases to the state court of last resort. Under our state Constitution, “[t]he Supreme Court has appellate jurisdiction when judgment of death has been pronounced.” (
So it is the task of this court –– and only this court –– to exercise “exclusive jurisdiction ‘in death penalty cases’ because of ‘the extreme nature of the penalty.’ ” (Thompson, supra, 25 Cal.4th at p. 124, quoting Cal. Const. Revision Com., Proposed Revision (1966) p. 91.) Our concern over the gravity of the death penalty is widely shared by our sister jurisdictions. The high court has pointed out that a system providing for judicial review “in a court with statewide jurisdiction . . . promote[s] the evenhanded, rational, and consistent imposition of death
An appeal in a death penalty case encompasses more than the automatic appeal. It includes, for instance, an appeal from a petition for writ of error coram nobis, an appeal from a petition for writ of habeas corpus, or an appeal from any other extraordinary writ attacking the judgment. Even if the details governing the procedure for these proceedings may vary, the need for evenhanded, rational, and consistent imposition of the death penalty does not: It is the same regardless of which means is usеd to attack the judgment. (See State v. Fourth Dist. Court of Appeal (Fla. 1997) 697 So.2d 70, 71 [“Collateral proceedings in death penalty cases are essentially attacks on the imposition of the death penalty. Because this Court has jurisdiction over death penalty cases, it is logical that such attacks be directed to this Court.”]; People v. Gaines, supra, 473 N.E.2d at p. 879 [“Statewide review, in this court, of post-conviction cases involving the death penalty will further the governmental interest in uniform and expeditious review of death sentences”]; State v. Niccum (N.C. 1977) 238 S.E.2d 141, 143-144 [because an appeal from a judgment that “ ‘includes a sentence of death or imprisonment for life’ ” lies directly to the supreme court, it “logically” follows that an appeal from a habeas corpus judgment involving a sentence of death or life imprisonment lies to the supreme court].)
Which is precisely how the Legislature, for at least the past 90 years, has interpreted the Constitution’s exclusive grant of appellate jurisdiction in capital
None of this is happenstance. We noted long ago the “pains that were there taken [by the Legislature] to limit the instances in which an appeal from the superior court in habeas corpus proceedings would be allowed” and acknowledged that “[t]he power of the Legislature to enact section 1506 has never been successfully challenged.” (In re Flodstrom (1955) 45 Cal.2d 307, 310.) Even earlier, in In re Alpine (1928) 203 Cal. 731, we recognized that “[s]ection 1506 provided for the first time in our legislative history that an appeal may be taken from the order of a superior court discharging a defendant after conviction to the district court of appeal, except in cases where judgment of death has been rendered, and in such cases to the supreme court.” (Alpine, at p. 745; see id. at pp. 745-746 [“Whatever doubt that existed [in 1913], as to whether a habeas corpus proceeding may fairly be said to be included in the terms of the constitution . . .
One year after former section 1506 was enacted, former article VI, section 4 of the Constitution was amended. But the amendment left this court’s appellate jurisdiction unchanged: “in all criminal cases where judgment of death has been rendered.” (Cal. Const., former art. VI, § 4, as amended Nov. 6, 1928, italics added; see id., former art. VI, § 4b [granting appellate jurisdiction to the Court of Appeal “except where judgment of death has been rendered” (italics added)].) These provisions were amended again in 1966, this time to read as they do today, but the amendment “did not alter the scope of this court’s exclusive jurisdiction in capital cases.” (Thompson, supra, 25 Cal.4th at p. 124.)
As even intervener-proponents acknowledge, section 1506 deems the “final order of a superior court made upon the return of a writ of habeas corpus discharging a [capital] defendant or otherwise granting all or any part of the relief sought” to be a “criminal case[] where judgment of death has been rendered” — and, accordingly, one that can be appealed only to this court.11 The Legislature’s
Section 1506 was enacted against the backdrop of these constitutional constraints. It carries “ ‘a “strong presumption in favor of the Legislature’s interpretation of a provision of the Constitution,” ’ ” and its “ ‘focused legislative judgment on the question enjoys significant weight and deference by the courts.’ ” (Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, 192-193.) Indeed, around the time the Legislature enacted section 1506, this court had acknowledged that “the contemporaneous and long continued construction thereof by the legislature is entitled to great deference, and may be supposed to reflect the views of policy and modes of reasoning which prevailed among the framers of the Constitution.” (People v. S. Pac. Co. (1930) 209 Cal. 578, 595.) Yet the majority fails to accord the Legislature’s long-standing interpretation due weight — or any weight at all. The majority states only that section 1509.1 effects “an implied repeal” of section 1506. (Maj. opn., ante, at p. 28.) This euphemism significantly underplays the stakes here. Only one of these provisions can be constitutional. Either the Supreme Court has appellate jurisdiction over capital habeas corpus
It is the majority’s primary contention that article VI, section 11 of the California Constitution is limited to an appeal from the “case in which [the death] judgment was rendered.” (Maj. opn., ante, at p. 24.) But the majority cites nothing to support this theory –– unless one counts a single sentence in a Judicial Council report that postdated the election at which article VI, section 11 was adopted. (See Valencia, supra, 3 Cal.5th at p. 364, fn. 5 [“ ‘We cannot presume that the electoratе as a whole was aware of statements made . . . in a magazine article published after the election”].) Even so, the sentence — “Under Section 11, the direct appellate jurisdiction of the Supreme Court is restricted to those cases in which judgment of death has been pronounced” (Judicial Council of Cal., Ann. Rep. (1967) pt. 1, ch. 3, p. 76) — does not support the majority’s idiosyncratic reading of the constitutional provision’s actual text. What is important under article VI, section 11 is not that the appeal from a proceeding attacking the death judgment itself be an appeal from the judgment of death, but that a judgment of death has actually been pronounced. Over a century ago, we explained that our “appellate jurisdiction ‘in all criminal cases where judgment of death has been rendered’ ” excluded an appeal from an order, “made before judgment,” setting aside a charge of capital murder. (People v. White (1911) 161 Cal. 310, 310.) Although the information charged a crime punishable by death, we explained that “neither judgment of death nor any other judgment has yet been rendered.” (Ibid., italics added; cf.
So where judgment of death has been pronounced — and the appeal challenges that judgment — appellate jurisdiction resides in this court. (Cf. Thompson, supra, 25 Cal.4th at p. 122 [“our exclusive jurisdiction over death penalty appeals” did not include an appeal where “[p]laintiffs challenged not the legality of that [death] judgment but the time at which Thompson’s spiritual adviser of choice had to leave him before the execution”].) Indeed, this court has already declared that “appellate jurisdiction in criminal cases where judgment of death has been rendered” extends at least to “proceedings which attack such a judgment by motion to vacate or petition for the writ of error coram nobis.” (People v. Shorts (1948) 32 Cal.2d 502, 511.) Given the pervasive uncertainty as to whether certain defects “should be raised by motion to vacate the judgment or by application for habeas corpus” (People v. Thomas (1959) 52 Cal.2d 521, 528) or whether “review should be by means of a writ of error coram nobis or through a writ of habeas corpus” (People v. Kirk (1946) 76 Cal.App.2d 496, 498) — and this court’s persistent readiness to deem one type of petition to be the other, when necessary (e.g., People v. Stanworth (1974) 11 Cal.3d 588, 594, fn. 5; People v. Enriquez (1967) 65 Cal.2d 746, 750 [“It matters not whether this petition be treated as a petition for habeas corpus or one in coram nobis”]) — it seems exceedingly unlikely that a reasonable voter understood this elusive distinction to have jurisdictional significance in capital cases. As we have previously noted, a challenge to a criminal conviction by means of a petition for writ of habeas corpus
I respectfully, but strongly, disagree with the majority that an interpretation of our appellate jurisdiction incorporating the full range of relevant considerations –– including functional ones –– would somehow be “anomalous.” (Maj. opn., ante, at p. 27.) It does matter whether the Court of Appeal has jurisdiction to review a superior court’s capital habeas corpus ruling on appeal, rather than review that same ruling when the capital inmate files a new original petition there. Consider the purpose underlying our exclusive appellate jurisdiction in death penalty cases, and the difference between review by appeal and review by a new original writ petition. A system of direct review to the state court of last resort “promote[s] the evenhanded, rational, and consistent imposition of death sentences under law.” (Jurek v. Texas, supra, 428 U.S. at p. 276.) A system in which an appeal can be taken to the intermediate appellate court, by contrast, creates uncertainty. It allows for the possibility of conflicting rulings on a matter of ultimate concern: life, or death. An appeal triggers the right to present oral argument and an entitlement to a written opinion with reasons stated. (People v. Medina (1972) 6 Cal.3d 484, 489-490.) A petition for an extraordinary writ (such as a petition for writ of habeas corpus), on the other hand, can be summarily denied without oral argument or a written statement of reasons. (See id. at p. 490.) Indeed, summary denial of a habeas corpus petition or other petition for an extraordinary writ does not establish law of the case or have any res judicatа effect in future proceedings. (Gomez v. Superior Court (2012) 54 Cal.4th 293, 305, fn.
That’s why virtually every one of our death penalty sister states requires that appeals from the death judgment as well as appeals from all postconviction proceedings attacking that judgment go directly to the state’s highest court.13 The laws of these other states do not control here. But the approach to the review of death penalty cases in our sister states is near uniform. And this near-uniform practice also happens to conform to the approach endorsed by the American Bar Association. (ABA Stds. for Post Conviction Remedies, std. 22-5.1 [“Appellate review should be available through the same courts authorized to hear appeals from judgments of conviction”].) All this should cause us to wonder precisely what it is about the California Constitution that demonstrates an intent or purpose
What becomes apparent instead is the risk that the majority’s narrow construction of article VI, section 11 of the California Constitution will eviscerate the provision’s purpose of promoting “the evenhanded, rational, and consistent imposition of death sentences under law.” (Jurek v. Texas, supra, 428 U.S. at p. 276.) Under California law, a capital prisoner may challenge the validity of the statute under which the prisoner was convicted or sentenced “at any time” — not just in the automatic appeal, but also in the initial petition for writ of habeas corpus. (In re Clark (1993) 5 Cal.4th 750, 765, fn. 4; see id. at p. 798;
The remaining question is whether the provision barring the use of a “successive petition” (read “new petition” (maj. opn., ante, at pp. 21-22, fn. 14)) “as a means of reviewing a denial of habeas relief” (
III.
The bait-and-switch undertaken by the proponents of Proposition 66 — and countenanced by the majority — will do nothing but breed cynicism in the electorate and supply further kindling to those who doubt the efficacy and workability of constitutional democracy. As an inducement to support this initiative, voters were promised that state court review of death penalty judgments could and would be completed within five years. That promise, as the majority concedes, was a sham. But the way to prevent similar swindles in the future is to be clear about what section 190.6, subdivision (d) says and why it is unconstitutional. What the majority offers instead — a “saving construction” to a
It is the voters’ job to decide whether to enact laws by initiative. It is our job to interpret and give effect to those duly enacted laws when called upon to do so, but also to uphold the supreme law of the land — our state and federal constitutions — when the challenged law transgresses those founding documents. When the courts treat voters as adults (i.e., listen to what they are saying and take seriously what they are trying to accomplish), then we will have earned their respect — respect that is sorely needed on those rare occasions when we must explain why a law duly enacted by the voters, but contrary to the Constitution, cannot take effect. (See Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 930 [“the initiative power is strongest when courts give effect to the voters’ formally expressed intent”].)
This is one such occasion. What was presented to the voters in Proposition 66 was a mandatory five-year deadline for resolution of the state court appeal and the initial habeas corpus petition for capital inmates. That’s what the voters enacted. We know the resulting deadline is mandatory from its text, its structure, the deadline’s description in the ballot materials, statements by the initiative’s proponents, and general media coverage of the Proposition 66 campaign. And our established precedent underscores why we are not free to construe a deadline as directory where, as here, the enacting body “clearly expresses a contrary intent.” (People v. Allen, supra, 42 Cal.4th at p. 102; see Kabran, supra, 2 Cal.5th at p. 343 [“The question is ultimately one of legislative intent”]; Garrison, supra, 32 Cal.2d at p. 435 [statute will be construed as mandatory where “that result is
A mandatory deadline, as all the parties agree, is not constitutional. Because that is precisely what the voters enacted, we must be equally clear and invalidate it. (See Valencia, supra, 3 Cal.5th at p. 386 (conc. opn. of Kruger, J.) [“In interpreting a voter initiative, we are bound to respect both the choices the voters have made and the limits of those choices”].) I therefore cannot join the majority in upholding some newly manufactured version of section 190.6, subdivision (d). When we twist the words of an initiative and ignore its clear purpose under the guise of “saving” it from being declared unconstitutional, then we are merely offering a pacifier as a substitute for a law the voters enacted, and encouraging initiative proponents to deceive voters about the actual effectiveness of a proposed law. (See Valencia, at p. 374 [“adopting thе construction . . . as to the scope of a phrase in a measure without notice to the voters, not mentioned by the . . . Legislative Analyst, and contrary to the stated purposes and assurances described in the measure’s own preamble, would not protect the voters’ right to directly enact laws but could very likely encourage the subversion and manipulation of that democratic right” (italics added)].)
Nor can I join the majority in upholding section 1509.1. With respect, I dissent from those parts of the judgment.
CUÉLLAR, J.
I CONCUR: IKOLA, J.*
_______________________
* Associate Justice of the Court of Appeal, Fourth Appellate District, Division Three, assigned by the Chief Justice pursuant to
Notes
“(a) The Legislature finds that the sentence in all capital cases should be imposed expeditiously.
“(b) Therefore, in all cases in which a sentence of death has been imposed on or after January 1, 1997, the opening appellate brief in the appeal to the State Supreme Court shall be filed no later than seven months after the certification of the record for completeness under subdivision (d) of Section 190.8 or receipt by the appellant‘s counsel of the completed record, whichever is later, except for good cause. However, in those cases where the trial transcript exceeds 10,000 pages, the briefing shall be completed within the time limits and pursuant to the procedures set by the rules of court adopted by the Judicial Council.
“(c) In all cases in which a sentence of death has been imposed on or after January 1, 1997, it is the Legislature‘s goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing. However, where the appeal and a petition for writ of habeas corpus is heard at the same time, the petition should be decided and an opinion reaching the merits should be filed within 210 days of the completion of the briefing for the petition.
“(d) The right of victims of crime to a prompt and final conclusion, as provided in parаgraph (9) of subdivision (b) of Section 28 of Article I of the California Constitution, includes the right to have judgments of death carried out within a reasonable time. Within 18 months of the effective date of this initiative, the Judicial Council shall adopt initial rules and standards of administration designed to expedite the processing of capital appeals and state habeas corpus review. Within five years of the adoption of the initial rules or the entry of judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases. The Judicial Council shall continuously monitor the timeliness of review of capital cases and shall amend the rules and standards as necessary to complete the state appeal and initial state habeas corpus proceedings within the five-year period provided in this subdivision.
“(e) The failure of the parties or of a court to comply with the time limit in subdivision (b) shall not affect the validity of the judgment or require dismissal of an appeal or habeas corpus petition. If a court fails to comply without extraordinary and compelling reasons justifying the delay, either party or any victim of the offense may seek relief by petition for writ of mandate. The court in which the petition is filed shall act on it within 60 days of filing. Paragraph (1) of subdivision (c) of Section 28 of Article I of the California Constitution, regarding standing to enforce victims’ rights, applies to this subdivision and subdivision (d).”
Clark explained that a “fundamental miscarriage of justice” occurs when “it can be demonstrated: (1) that error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner; (2) that the petitioner is actually innocent of the crime or crimes of which the petitioner was convicted; (3) that the death penalty was imposed by a sentencing authority which had such a grossly misleading profile of the petitioner before it that absent the trial error or omission no reasonable judge or jury would have imposed a sentence of death; (4) that the petitioner was convicted or sentenced under an invalid statute.” (Clark, supra, 5 Cal.4th at pp. 797-798, fns. omitted.)
Petitioner also relies on the provisions of section 1473 governing habeas corpus petitions based on claims of “false evidence.” However, section 1473 does not mention successive petitions. While it may apply to such petitions, petitioner does not suggest it overrides the Clark limitations, or explain why section 1509 may not further limit false evidence claims in successive petitions consistently with equal protection principles.
Petitioner also relies on State v. Noling (Ohio 2016) 75 N.E.3d 141. There, the Ohio Supreme Court decided that equal protection principles were violated by a statute requiring capital offenders to obtain leave from that court to file an appeal from the denial of a postconviction motion for DNA testing. Other offenders had unfettered access to the court of appeals after such a deniаl. (Id. at pp. 145-146.) The court disagreed with an argument that capital and non-capital offenders were not similarly situated. “[T]he statutory scheme relevant here concerns applications for postconviction DNA testing. . . . That certain applicants are sentenced to death and others to prison terms is nearly irrelevant under the statute.” (Id. at p. 148.)
The Ohio court‘s reasoning is consistent with the equal protection principle that the pertinent inquiry is whether persons are similarly situated for purposes of the law challenged. (See People v. Guzman, supra, 35 Cal.4th at p. 592.) As explained above, the successive petition restrictions of section 1509, subdivision (d) address issues arising particularly in capital postconviction proceedings.
The California approach has the benefit of allowing time limits set by the legislative branch to function as nonbinding guidelines, when reasonably possible.
A similar construction of a mandatory limit as “directory” was applied in Waite v. Burgess (Nev. 1952) 245 P.2d 994, 996.